State (Ghana) v Schumann
| Jurisdiction | Ghana |
| Date | 04 November 1966 |
| Court | Court of Appeal (Ghana) |
(Akufo-Addo C.J.; Crabbe and Lassey JJ.A.)
The individual in International law Extradition Procedure of International practice Fair trial Whether representation of State requesting extradition at proceedings is unfair and opressive The law of Ghana.
The individual in international law Extradition Political crimes Murder Killing of incurable lunatics and sterilization of Jews in Nazi Germany Criteria for determination of offences of a political character Validity and relevance of defences of superior orders, Act of State and the fact that acts were not punishable in Germany at the time of their commission The law of Ghana.
SUMMARY: The facts.The Government of the Federal Republic of Germany requested the Government of Ghana to extradite the appellant, Dr. Horst Schumann, on a charge of murder. The acts which formed the basis of this charge were the killing of more than 30,000 personspatients in mental institutions and, in the course of experiments in mass-sterilization, Jews in Auschwitz concentration campduring the period from 1939 to 1941. Schumann, who had been resident in Ghana since 1959 and was employed by the Government as a Medical Officer, was, in accordance with the procedures of the Extradition Act of 1960, arrested and brought before the District Magistrate, Accra, who committed him to prison to await surrender by the Government. Schumann applied to the High Court for a writ of habeas corpus on the grounds, inter alia, that the offence for which his extradition was requested was of a political character and hence not extraditable under the Extradition Act 1960, and, furthermore, that the appearance in the Magistrate's Court of a State Attorney representing the Federal Republic of Germany offended against natural justice and rendered the proceedings unfair and oppressive. The High Court dismissed his application, and Schumann appealed to the Court of Appeal.
Held, inter alia: (1) The offences with which the appellant was charged were not of a political character. The relevant criteria were that there must be some political disturbance or upheaval or some physical struggle between opposing political parties for the mastery of the government of the country, and that the offence must have been committed in furtherance of that disturbance or struggle, or in association with a political object or with a view to avoiding political persecution or prosecution for political offences. The acts in question did not fall within these principles. Although these criteria might not be exclusive, the pleas that the acts had been done on the direct orders of the German Government and were in furtherance of the aims of the Nazi ideology, and that the appellant would have risked death or imprisonment if he had refused to comply, did not vest the offences with a political character since the victims were not opponents of the then German Government; nor was the appellant at odds politically with the present Government of the Federal Republic which was requesting his extradition. (2) Although in the absence of specific treaty provisions there was no obligation on the requested State to arrange for representation for the requesting State, such an arrangement could in the present case be inferred from the terms of the order extending the operation of the Extradition Act to the Federal Republic, which conferred a right on the Government of the requested State to claim the refund of all fees of solicitors and counsel employed by reason of the extradition (per Crabbe J.A.). Furthermore, the appellant had not shown that he was prejudiced by this representation.
The following are the full texts of the judgments.
Akufo-Addo C.J.: This is an appeal from the decision of the High Court, Accra, refusing to grant an application for a writ of Habeas Corpus made by the appellant, Dr. Horst Schumann, a German national resident in Ghana and who was on 25 August 1966 committed to Ussher Fort Prison to await orders for his extradition to the Federal Republic of West Germany to stand trial on a charge of murder.
The charge of murder brought against the appellant by the Federal Republic of West Germany arose out of the brutal excesses of the Nazi rgime in the period of World War II in furthering their political ideology which called for, among other things, the extermination of the Jewish race.
The appellant has been resident in this country since 1959 and until 6 March 1966 has been in the employment of the Government as a Medical Officer. He was arrested on a Warrant issued by the District Magistrate, Accra, upon an order of the Government of Ghana made at the request of the Federal Republic of West Germany, and brought before the said District Magistrate under the provisions of the Extradition Act, 1960, as amended by N.L.C. Decree 65.
On 25 August 1966, as already stated, he was committed to the Ussher Fort Prison, where he now is, to await surrender by the Government.
The appellant applied to the High Court, Accra, for the issue of a writ of Habeas Corpus directed to the Assistant Director (who is the Keeper) of the Ussher Fort Prison for his release on the ground that his committal to prison by the District Magistrate was wrong in law, that is, in breach of the requirements of the Extradition Act, 1960, and therefore his incarceration consequent upon that committal was unlawful. The appellant relied on a number of grounds in support of his application. These grounds, which in effect are the same as have been argued before us, appear in his affidavit sworn to in support of his application. They are: (1) that the appellant was not given opportunity to tender evidence to prove that the offence wherewith he was charged was of a political character as he was by law entitled to do under section 9 (2) of the Extradition Act, 1960; (2) that the appearance in the Magistrates' Court of a State Attorney representing the Government of the Federal Republic of West Germany offended against natural justice and rendered the proceedings from the viewpoint of the appellant unfair and oppressive; (3) that the charge was bad for duplicity; and (4) that there was not sufficient evidence before the Magistrate on which to find a prima facie case against the appellant.
The High Court heard the application on 16 September 1966, and found against the appellant on all the points raised by him. That Court therefore dismissed the application.
In this Court the appellant's counsel has advanced practically the same points as he did in the Court below, with the addition of a further ground alleging that the statements of the various witnesses in West Germany which formed the main evidence of the West German Government were unsworn and their admission as evidence rendered the proceedings a nullity. This latest point may be disposed of in a few words. Extradition proceedings are by our law governed by the same principles and rules of procedure as committal proceedings in an indictable offence (Section 9 (1) of Act 22), and the law does not require that committal proceedings shall be based on sworn statements of witnesses (Section 182 of Act 30). Section 24 of Act 22 on which appellant's counsel relies does not, by the very plain language of that section, require that the written statements of witnesses used as evidence in extradition proceedings shall be sworn. Any interpretation of that section to the contrary is a misinterpretation. Moreover, the section refers specifically to proceedings relating to a convict-fugitive and not to an accused-fugitive as is the case before us.
The only complaint of the appellant's counsel which has engaged our serious attention is the one alleging that the appellant's counsel was not given the opportunity to call evidence, although he (so he says) offered to tender that evidence, to prove that the offence charged was of a political character. And this because, while we do not sit on appeal from the findings of fact by the Magistrate, the question of the political character of the offence in extradition proceedings is one that goes to the Magistrate's jurisdiction over the entire matter. If therefore there are any facts that go to challenge the Magistrate's jurisdiction, it becomes, in our view, our duty even at this stage to ascertain those facts.
The learned Judge of the High Court held that the appellant's counsel precluded himself from calling any evidence and it was therefore not the fault of the Magistrate that the accused was not called upon to make his defence. The reference in the learned Judge's decision was to a note recorded at the close of the case for the prosecution in the following terms:
Mr. Amofa was the appellant's counsel. This note was interpreted by both counsel for the prosecution and the learned Judge as meaning that counsel expressed his intention not to call evidence and that he was going to rely entirely on his submissions. This interpretation we find somewhat unfortunate, for the fact that counsel was not putting his client in the witness-box did not mean that he was not offering any other evidence. Counsel for the fugitive-appellant made his submissions of, in effect, no case, and among these submissions was one that the offence was of a political nature relying, as indeed he was entitled to do, on the evidence in support of the requisition. The Magistrate no doubt acting on the interpretation which he had placed on counsel's statement as stated above, namely, that counsel was offering no evidence, proceeded to rule, inter alia, that the offence was not of a political character. Counsel denied that he expressed the intention not to offer evidence either by or for the appellant and he in effect attempted to question the veracity of the Magistrate's record. We have already in our order of 26 October 1966 said that we consider this attempt to be scandalous, and we accept the record as true. Counsel further submitted that the Magistrate misunderstood his statement...
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