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A-G v. Otu and Kwapong 1969
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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Name: Nyampong, Susanna Asaabea Student No: 10235068 Course: Constitutional Law I (FLAW 305) Assignment: Case Briefing Date: 31st August, 2006
CASE BRIEF
Title: A-G v. Otu; and Kwapong, (1969) 2 G&G 416
Facts: The defendants, Air Marshall Otu and Naval Lieutenant Kwapong, were arrested and served holding charges for allegedly engaging with the proscribed Convention Peoples Party (CPP) in activities aimed at overthrowing the government of the National Liberation Council (NLC). A Commission of Enquiry was set up by the NLC, about a month after the arrest of Otu and Kwapong, to determine among others the extent to which the defendants were involved in subversive activities with the proscribed CPP. The defendants refused to give evidence to the Commission on the grounds that they had been accused of subversion and would be prejudiced in the proceedings of the Commission if they took part. The Commission saw their refusal as an offence under the Commissions of Enquiry Act 1965(Act 250), section 7(1) which identifies refusal to take oath or refusal to answer questions legally required by a Commission of Enquiry as offences which must be enquired into by a High Court.
Procedure: Separate applications were brought in by the A-G under order 59, r. 21 of the Supreme (High) Court (Civil Procedure) rules 1954 L. 140A against Air Marshall Otu and Naval Lieutenant Kwapong.
Issue: Whether the defendants committed an offence in their refusal to take oath and give evidence at the Commission of Enquiry.
Holding: The court held that no offence was committed in the refusal of the defendants to take oath and give evidence at the Commission of Enquiry due to the peculiar circumstances of the case.
Reasons: A witness is entitled to the privilege of silence if there is reasonable ground for the witness to apprehend danger by the giving of evidence. In this case a Commission of Enquiry whose duty is to investigate allegations and rumors; had been set up to enquire into the degree of subversion of the defendants who had already been accused of subversion. Any evidence the defendants might have given may have been used against them in a trial court, signifying a danger to the defendants.
Comments: The Judge was very thorough in his judgment and managed not to be swayed by the apparent guilt of the defendants.
A-G v. Otu and Kwapong 1969
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
