Judge rules murder case report was privileged: Security chief loses important ruling in libel action against 'Independent'. Rhys Williams reports

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The Independent Online
The Independent yesterday won the first round of a libel action brought by Kojo Tsikata, Ghana's head of national security, after the paper reported findings of a high-level inquiry in Ghana which concluded that he had 'masterminded' the kidnap and murder of three high court judges.

Jonathan Sumption QC, sitting as a deputy judge of the High Court, ruled that unless a jury subsequently finds that the Independent was acting maliciously, then the report was protected by privilege and did not constitute libel.

The newspaper reported in 1992 that a Special Investigation Board into the killings recommended the prosecution of 10 people, including Mr Tsikata, but that only five faced trial and were executed. It added that no action was taken against Mr Tsikata.

Mr Tsikata, right-hand man to Flt Lt Jerry Rawlings, until last year Ghana's ruler, says he was defamed because the story failed to mention that a public tribunal and the country's attorney-general later ruled there was not enough evidence against him to prosecute.

Richard Dowden, the Independent's diplomatic editor, said: 'I am delighted, both for the paper and our reporter Karl Maier, at the outcome of today's hearing. The judgement means a report of the stature of this public inquiry into the murder of the three judges can be relied upon by the press unless and until authoritatively discredited. It extends the boundaries of foreign reporting, thus freedom of the press, in this country.'

In June 1982, six months after the coup which brought Flt Lt Rawlings's Provisional National Defence Council to power, three serving high court judges and a senior retired army officer were abducted from their homes.

Their charred remains were later found at an army shooting range near the capital, Accra.

In response to the ensuing public outcry, the Ghanaian government set up a Special Investigation Board of inquiry. The final report completed in March 1983 found that the murders had been 'masterminded' by Mr Tsikata and carried out under the direction of another member of the PNDC, Joachim Amatey Kwei. It recommended the prosecution of a further eight individuals who formed the murder squad.

The case against Mr Tsikata rested largely on the evidence of Kwei. Although Kwei's testimony was inconsistent, it directly implicated his colleague, whose own submission to the board was considered 'in certain respects incredible or mutually contradictory'.

The board submitted its report to Ghana's attorney-general, who then published it at a press conference in May 1983 with a detailed commentary of his own. He concluded that while Kwei and four members of the murder squad should be prosecuted, there was insufficient evidence to proceed against Mr Tsikata.

A public tribunal in Accra subsequently tried Kwei, who repeated the allegations against Mr Tsikata as part of his defence. Mr Tsikata denied them, and when Kwei declined to cross-examine, the tribunal treated the refusal as an endorsement of Mr Tsikata's version of events. The tribunal concluded that 'the alleged role of Captain Kojo Tsikata by Kwei is just a figment of his own imagination'.

Immediately before his execution on 18 August 1983, Kwei twice confessed that he had invented the allegations against Mr Tsikata - first, to a clergyman and then to Flt Lt Rawlings as he was being led to the firing squad. Flt Lt Rawlings tape recorded the conversation.

In a landmark ruling that privilege applied, the judge said the views of the attorney-general and the evidence of the public tribunal did not constitute 'an authoritative or conclusive refutation of the Board's (original) findings.' The Independent was therefore not obliged to refer to them in its report.

Geoffrey Bindman, of Bindman & Partners, said his client was considering an appeal. 'This is only a preliminary stage which does not affect the final outcome of the case which has still to be decided by a jury.'

(Photographs omitted)