Prologue: The case of the missing hunters
Once upon a time in a village called Ampenkro, there was a law that made it a criminal offence punishable by death for any person to kill or eat the flesh of another person. This law was made because there was a great famine in the land, and people had to eat human flesh to survive. The land was full of wild and dangerous beasts which attacked and killed many people. Farmers could not go to their farms to fetch food stuffs as they feared to be killed by the wild beasts. Many people died of hunger. By a decree of the chief, six skilled hunters were selected to enter the forest to fetch food and meat for the town folks. The hunters travelled too far into the forest that they missed their way back home. Meanwhile, they had neither game nor food. When the hunters realized that they could possibly die of hunger, there was a proposal to kill and eat one of them to survive. Five of them voted in favour of the proposal while one voted against it. By majority decision, they killed and ate one of them. The human flesh sustained them till they eventually found their way home many days thereafter. When they got home, four of them quickly reported to the chief that a wild beast had killed one of them but they managed to escape. The other one told the chief the ‘truth’ that no wild animal killed one of them; they in fact killed and ate him to survive. As the law of the land protected whistle blowers from prosecution, the four hunters were arraigned before the court on two counts of (a) murder and (b) cannibalism, but the one was not charged. At the trial, the testimonies of all four accused persons concurred that the deceased was killed and eaten by a wild beast. The prosecution had only one witness to call in support of their case.
Now, the trial has ended, and you are the judge. You did not take part in the hunting expedition. Would you convict or acquit the four hunters? Can the testimony of one witness override concurring testimonies of four witnesses? Your judgment would be as good as mine!
Introduction
One of the greatest fallacies entertained by people about law is that the business of the court is to discover truth. Truth is a fundamental value deeply ingrained in our culture, morality and religion, which is a necessary component of social cohesion and progress. All the main religions in Ghana emphasize truth as a fundamental value. It is generally expected that the law would reflect that fundamental value and do so at the core of its processes. The public never accepts that justice can be attained without emphasizing truth. To the public, law should be a system of rules dedicated to the search of truth. But do courts really concern themselves with and commit to the search of truth? What at all is truth?
It must be pointed out that a court of law is never engaged in ascertaining ultimate verities. The business of the court is to determine what is the proper result to be arrived at, having regard to the evidence before the court. Like all common law countries, Ghana operates an adversarial system of legal procedure. The adversarial trial is not committed to the finding of truth as we know it in morality, religion and culture. The core business of the court is to find fact that is supported by evidence. This is why our judges are called ‘fact-finders’. The court is concerned with procedural truth or legal truth. The court does not concern itself with any truth that is not supported by evidence. The legal system has established fact-finding criteria and the norms to ascertain the truth in the established facts.
What is the purpose of swearing an oath?
Before a person testifies in court, he is made to swear an oath to speak the truth. A person may swear with the Bible, Quran, Cross, Traditional belief or Affirmation, according to his belief. Before giving his evidence, a witness swears the oath to speak the truth, the whole truth and nothing but the truth. The oath is a formal promise by which the person swearing invokes God or some deity or pronounces some words which he considers sacred. The purpose of the oath is to encourage truth. What kind of truth do parties and their witnesses swear to speak?
What is truth according to the Bible?
It was a cardinal maxim of the Mosaic Law that the testimonies of at least two witnesses were capable of establishing every matter as true. Thus, no one could be condemned or punished where there were not at least two or three witnesses to prove the offence against him. This maxim is also found in the New Testament of the Bible. References may be made to the following Bible verses:
Deuteronomy 17:6:
“At the mouth of two witnesses or three witnesses shall he that is worthy of death be put to death. At the mouth of one witness he shall not be put to death.” (MKJV)
Deuteronomy 35:30:
“Whoever kills any person, the murderer shall be put to death by the mouth of witnesses. But one witness shall not testify against any person to cause him to die.” (MKJV)
Matthew 18:16:
“But if he will not hear you, take one or two more with you, so that in the mouth of two or three witnesses every word may be established.” (MKJV)
John 8:17
“It is also written in your law that the testimony of two men is true.” (MKJV)
2 Corinthians 13: 1b
“In the mouth of two or three witnesses every word shall be established.” (MKJV)
Hebrews 10:28:
“He who despised Moses’ law died without mercy on the word of two or three witnesses.” (MKJV)
The clear import of these scriptures is that whenever the testimonies or evidence of two or more witnesses concur in proof of any issue, that issue is said to have been established and settled. The Mosaic law did not trust the evidence of only one witness, hence Deuteronomy 19:15 cautions thus “One witness shall not rise up against a man for any iniquity.” It was a belief amongst the Jews that a judgment based on the evidence of at least two witnesses accorded with natural justice.
Daniel Korang Esq.