Encountering Zebus of the Kingdom of Uranus

In a rapidly changing world, containing conscience claims – whether religious or non-religious – can be very difficult. Should the Potterhead’s claim to Hogwarts be treated differently from a Pentecostal’s belief in heaven? Should a Catholic’s firm belief in purgatory be treated any differently from a Tolkien fellow’s firm belief in Middle Earth? These are the tough decisions that both national, regional and global legal systems struggle to make. Notably, disputes over conscience claims do not arise in vacuo. They are cultivated in material disputes of action or inaction. One is required to do or refrain from doing a thing. The disputes, therefore, start from the outside in and not the inside out. In other words, one justifies one’s action or inaction on grounds of conscience manifestation.

Approaches to conscience claims differ. The global legal system characterizes conscience and religion. It avoids defining it. Some national legal systems provide a threshold formulation. Is the conscience claim sincere? Is it held in community with others? Is an alleged practice, being the physical manifestation of one’s conscience claim, an essential practice of that conscience manifestation? While the first two questions are framed in non-essentialist terms the last question is not; the difference is important. The non-essentialist questions take a broader view of conscience. The Hogwarts student or the Middle Earth warrior may both succeed; the Pentecostal and Catholic too. The essentialist test may invalidate Middle Earth and Hogwarts. But the essentialist test appears to leave the internal dimension of conscience untouched. It focuses on the manifestation thereof. Thus, while it will not invalidate one’s firm conscience claims – rather acknowledging them in fact – the manifestation of such conscience claims can be illegitimated; though that sounds more like telling someone how to manifest their conscience. Can a judge know a person better than the person themselves? That’s a tough question.

What will an essentialist test look like? We find some guidance in State v Otchere. It will be observed that in my past blog pieces on religious freedom, I seem to paint the picture that the judicial attitude of Ghanaian judges towards religious freedom and by extension conscience claims has been one of subtle pacesetting – using pre-existing legal rules to guarantee religious freedom. I still stand by that view. However, it is my more recent contention that that pacesetting could have come earlier – in 1963 (Otchere) rather than in 1965 (Nyameneba).

Otchere was decided during the Nkrumah era, shortly after the Kulungugu bomb attempt on the life of Ghana's first President, Kwame Nkrumah. A number of high profile politicians and members of government as well as non-members of government were accused of having a hand in the bombing. The accused persons were arraigned and charged with the offences of treason. One other was charged with misprision of treason, that is, after having become aware of the plot, the accused failed to reveal it to lawful authorities.

Otchere is one of those landmark cases of Ghana’s criminal jurisprudence because of the memorable fallout that followed - the sacking of the judges who decided it and the empanelment of newer judges to retry the acquitted. Those are the political significance of the case. They are other legal significance, especially with respect to the principles of conspiracy under Ghanaian law. Because this case appears on the course list of many law schools in Ghana as a relic of the law of conspiracy, many law students never go far enough to encounter Zebus of the Kingdom of Uranus. I did; and I argue that Otchere has conscience and religious freedom dimensions also – an aspect always overlooked.

Ako Adjei (of the big 6) was part of the accused persons. He was said to have advanced some money to support the treason efforts; that was the substantial part of his contribution to the conspiracy and the larger treason attempt. Ako Adjei, who until his arrest was the Minister of Foreign Affairs did not deny that he had obtained a loan from the Ghana Commercial Bank. However, he sought to explain away the reason why he took out the loan.

Coalescing hubris and vainglory, Ako Adjei, the Court noted ‘ spoke with ecstatic self-congratulation of his academic achievements in America and in England in such varied fields of learning as sociology, economics, anthropology, political science, philosophy, history, journalism and law’. He said he was a dedicated spiritualist who had consumed over 73 books on ‘spiritualism, eastern occultism and magic’. Interestingly, he went to great pains to display these in Court. This is an account of how he used the money:

He took the money, that is the £G25,000, to the fields on the Accra-Dodowa Road and there invited the spirit of Zebus of the Kingdom of Uranus to have the money doubled for him. He saw Zebus in a flame of fire clothed in white robes with feet suspended in the air, and he left the money in the fields in accordance with spiritualist practice. He was to call later to find it doubled. When he called, however, the spirit Zebus asked for another £G2,500 which he promptly delivered. Up to the time of giving his evidence in court Zebus had not obliged, but he was undaunted in his hopes. Zebus would not disappoint him… (my emphasis)

This is the focus of my attention. A man of his learning, having demonstrated his religious and spiritual inclinations and having gone to great lengths to demonstrate it to the Court, one would have thought that the Court would at least acknowledge and respect his beliefs and the expression of those beliefs. Rather the Court described his story as ‘a veritable Alice in Wonderland story’ and ‘an ignominious lie’. The Court described his story as one ‘which, if true, would show him to be possessed of a mentality not a shade higher than that of an unsophisticated illiterate simpleton’. To the Court, a man of Ako Adjei’s learning could not manifest his belief in Zebus in this way. He was far more intelligent than that. In fact, the Court did not even expressly recognize the conscience claims he was making when it said, ‘While Ako Adjei might fervently believe in magic and spiritualism…’ So, to the Court led by Chief Justice Aku-Korsah, it seemed to be the view that the taking of money to Zebus for multiplication could not be an essential manifestation of a belief in Zebus. Worse still, a belief in Zebus could not be a belief properly so-called.

I think otherwise. Conscience claims do not depend on the learning of the individual making those claims. Conscience claims are conscience claims because they emerge from the soul, heart and mind of a person. Conscience claims are internally sentimental and though they may be induced by a person’s contextual environment, it is not always so. Also, I think a non-essentialist view of conscience claims carries with it more potency because it includes more claims instead of limiting claims at the expense of legitimate claims. Rather, restrictions on the manifestation of conscience claims should only arise in the context of rights negotiation: Where there is a conflict between two rights. Even then, it is my view that both the conscience claim and the expression of that conscience claim should be recognized but within the context of the case that is being considered, restricted on legitimate grounds that underpin rights negotiation.