Ya Na ‘Killers’ Freed

Mohammed Habib Tijani (R) former DCE for Yendi and Sayibu Mohammed (L)all all accused leaving the court room.

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday March 30, 2011.
There was wild jubilation at the Accra Fast Track High Court premises yesterday when all 15 men accused by the ruling National Democratic Congress (NDC) of killing Ya Na Yakubu Andani II, overlord of Dagbon in March 2002 were acquitted and discharged.

The trial court presided over by Justice EK Ayebi of the Court of Appeal in a 2hours 47 minutes (1:06pm to 3:53 pm) ruling on a ‘Submission of no case’ application filed by the accused persons, acquitted and discharged them because the prosecution failed to establish a prima facie case against all of them.

“You have been found not guilty by this court so I have the duty to acquit and discharge you of all the counts,” Justice Ayebi who was sitting as an additional high court judge said.

Those on trial were Iddrisu Iddi aka Mbadugu, Alhaji Baba Abdulai Iddrisu aka Zohe, Kwame Alhassan aka Achiri, Mohamadu Abdulai aka Samasama, Sayibu Mohammed, Alhassan Braimah and Alhaji Mohammed Habib Tijani, 45, former DCE of Yendi in the erstwhile NPP regime as 1st, 2nd, 3rd, 4th, 5th, 6th and 8th accused persons respectively.

The rest were Baba Ibrahim aka Baba Zey, Alhassan Mohammed aka Mohammed Cheampon, Mohammed Mustapha, Shani Imoro, Yakubu Yusif aka Leftee and Hammed Abukari Yussif and Abdul Razak Yussif aka Nyaa as 9th, 10th, 11th, 12th, 13th, 14th and 15th accused persons respectively.

They all pleaded not guilty to conspiracy to murder, with Zakaria Forest (A7) still at large facing an additional charge of murder.

The court however said A7 (Forest) “is similarly acquitted and discharged,” even though he could not appear in court to stand trial.

The NDC had politicized the killing of the Dagbon Chief, promising to fish for the killers.

At page 34 of the NDC’s manifesto titled: “A better Ghana – Investing in people, jobs and the economy” and with sub-title “Protecting the people”, the party promised to among other things “Set up a new and truly non-partisan and independent Presidential Commission to re-open investigations into the murder of Ya Na Yakubu Andani II and his elders in March 2002.”

The NDC also used the issue of the late Ya Na extensively in their campaign to win power in the 2008 general elections. NDC founder and former President Jerry John Rawlings was very vocal over the Ya Na issue calling for the jailing of the suspected killers.

However, instead of opening fresh investigations into the matter the NDC government, arrested 15 people suspected to have been involved in the murder of Ya Na in Yendi and put them before a court in Accra.

The Abudus and Andanis have been engaged in a protracted chieftaincy dispute and it reached a deadly height leading to the death of the Ya Na and 29 of his elders between March 25 and March 27, 2002.

Justice Ayebi held that the prosecution failed to lead evidence beyond reasonable doubt against all the accused persons saying the essential elements needed to convict the accused persons were not proven while the evidence led by the prosecution were so discredited.

The court said the prosecution could not discharge the burden of proof needed for the court to convict the accused persons and the evidence were manifestly seen to be so unreliable that no reasonable court or tribunal could convict the accused persons.

Justice Ayebi said the prosecution had tried to create the impression that the Wuaku Commission Report (the commission set up by the then President John Agyekum Kufuor to investigate the Yendi crisis of March 2002) was not relevant to the trial but that was untenable because the whole prosecution was mounted based on the report as the facts of the case stated.

He said majority of the prosecution witnesses (PWs) testified on oath at the commission in 2002 and also testified in the trial of Yidana Sugri and Iddrisu Janfo (the two men acquitted and discharged by an Accra Fast Track Court for killing the Ya Na) but their evidence in the current trial were so discredited that it undermined their credibility as witnesses.

He siad the police investigations was one-sided and only Abudus were targeted for the trial saying “what these Andani witnesses are telling the whole world that any Abudu is equally liable for the murder of the Ya Na”.

The court said it was not safe to leave evidence fraught with inconsistencies in the hands of the jurors to pass a verdict on the accused persons.

He said for instance that the contentious issue of the charred remains of the male body presented by the prosecution as that of the body of the Ya Na by the prosecution could not be resolved because the prosecution did not conduct any DNA analysis to establish whose body it was yet wanted the court to accept that it was that of the overlord.

The court said once the prosecution claimed to have led direct and cogent evidence as opposed to circumstantial evidence there was the need to prove a case beyond any reasonable doubt but they did not and defense counsel was able to prove that the evidence led by the prosecution was “watery, suspicious and unreliable.”

On the charge of conspiracy to commit murder, the judge held that it was rare for a prosecution to lead direct evidence saying “in the particulars of offence it is stated that they agreed to act together with a common purpose… The language of the particulars of offence has put together the two elements of ‘in agreement’ and ‘acted together’…Any talk of agreement will not be referred to an indirect circumstantial evidence…Evidence led was not and could not have been direct as the prosecution submitted in the trial.”

On the Wuaku Commission’s Report, the court said the process of eliciting evidence is not different from what the trial court used saying “how can the prosecution turn around to say that the same report used to initiate the investigations cannot be relied upon in this trial. When it suited them they made references to the report. Their submission is not relevant.”

The court said it was the same Wuaku Report that the prosecution used to indict A8 (the DCE) in this trial and cannot turn around to say it is not relevant.

Justice Ayebi said the commission was set up three months after the crisis at a time when the issues were so fresh in the minds of the witnesses but what the same witnesses said in the instant trial, eight years down the lane are complete departure or additions of their previous testimonies and that cannot be acceptable.

Turning to the accused persons, Justice Ayebi said none of the witnesses was able to lead evidence directly or indirectly against A1 (Mbadugu) and that all the evidences in the current trial had been fabricated against A1.

On A2 (Zohe), the court held that the evidence by some of the accused persons that he took photographs by holding the severed head of Ya Na appears to be false and said the prosecution could not show any evidence to that effect adding “it is not surprising that in the address of the prosecution nothing was said about A2.”

On A3 (Achiri), the judge said Gurundo Wumbei who was listed on the trial of indictment and who made serious allegations against A3 was never brought to court to testify and PW7 (Binchera Wumbei) who claimed to have seen A3 shooting was nowhere near the palace as claimed.

On A4 (Samasama), the court said the prosecution witnesses gave contradictory evidence against him because before the commission they (witnesses) had said it was Yidana Sugri who held the severed hand of the Ya Na and never mentioned A4 but in the trial the same witnesses said it was A4 who dragged the body of the Ya Na saying “PW3’s evidence is too sweet to believe.”

On A5 (Mohammed) the court said no evidence was led to show that he conspired to commit murder while the evidence led against A6 (Braimah) was described as an “after taught’ by the court.

On A8 (DCE), Justice Ayebi said it was on record that he helped to impose a curfew in Yendi and it was Prince Imoro Andani, then Norhtern Regional Minister who lifted the curfew saying the evidence by the witnesses against the DCE was based on hear say and had no probative value.

“At the commission PW1 (Amadu) did not give this evidence but eight years down the lane he could recollect what happened in Yendi” adding “PW8’s (an Andani) evidence that he was with the DCE in Tamale to broker peace appear to sound credible.”

On A9 (Baba Zey) the evidence led against him is false and inconsistent with what the same witnesses said at the Wuaku Commission while on A10 (Mohammed Cheampon) the court held that he was never mentioned and even the one who mentioned him at the commission was not brought to testify saying “the evidence against him is inconsistent and unreliable”.

On A11 (Mustapha), Justice Ayebi said the witnesses evidence against him are not credible and cannot be relied upon whilst on A12 (Imoro) the court said there was nothing for the court to rely on to convict him.

On A13 (Leftee), the court said he should not have been brought for trial in the first place because he was not listed among those sent to the Magistrate Court to be indicted saying the evidence led against him is an “after taught.”

On A14 (Yussif) and A15 (Nyaa), the court said the evidence led by the prosecution against them is inconsistent and unreliable.

Turning to PW10 (Dr. Jaswant Wadhwani, the pathologist who performed autopsy on the body of the Ya Na), Justice Ayebi said “it is not sufficient to say the Ya Na died and leave it at that”, adding that before both the commission and the Yidana Sugri and Iddrisu Janfo trial the witness (Dr. Wadhwani) said he could not establish the identity of the charred body of the male adult and that it could be that of anyone else.

The court said however that in this trial the same witness said the charred male body was that of the Ya Na saying to date DNA analysis has not been done yet Dr. Wadhwani was able to tell the court that the charred body was that of the Ya Na adding “the prosecution failed to positively to submit that the body was that of the Ya Na.”

The judge said the investigator (Detective Nkrumah PW11) did a shoddy job saying “he told the court surprisingly that he could not look for the Wuaku Report, its proceedings or the proceedings in the Yidana Sugri trial which were very relevant to this case… He did not build a case for successful prosecution.”

The court praised detective Chief Inspector Charles Adaba who conducted the initial investigations saying “he tried to follow clues”

The judge had a word for the people of Dagbon saying “you should learn to live in peace. You are descendants of one ancestor. Nobody knows your history more than you do” and also commended the media for a “fair” reportage throughout the trial.

Phillip Addison, lead counsel for the defense after the ruling said “the judge’s ruling is ‘erudite’ but Principal State Attorney Anthony Rexford Wiredu did not say anything.

The defense team comprised of Philip Addison, Ata Akyea, Kwame Akufo and Abukari Yakubu while Ms. Gertrude Aikins (Director of Public Prosecutions), Mr. Wiredu and Solomon Atadze handled the case at different stages of the trial.