The year was 1989, the day January 21, a District Court at Kpando found one Glah and another guilty of the offence of conduct conducive to breach of peace contrary to section 207 of the Criminal Code 1960 (Act 29). Mr Glah was handed 12 months imprisonment with hard labour while the other accused person was sentenced to a fine of GH¢15,000 or in default be committed to serving 12 months in prison.

Their alleged crimes were quite bizarre then and now. Prosecutors led by one Dzanku an Assistant State Attorney told the court Mr Glah had an affair with his mother-in-law and sister-in-law. They both pleaded guilty. The case was taken to the Ho High Court shortly after the sentence was given. Their lawyer, Homenya argued that the District Court should not have accepted their plea of guilty because having an affair with mother-in-law and sister-in-law is not an offence under the law.

He pointed out that they were convicted for an offence which does not exist as he described the punishment as excessive. The state defended the judgement with prosecutors saying their conduct was insulting as the breach of the peace is likely to be occasioned. Mr Dzanku explained that the Chief and Elders of Dafor, as well as the PNDC District Secretary, has warned them to desist from such immoral acts but they paid no heed. He further argued that if other family members of the three women had not exercised restraint serious breach of the peace would have occasioned.

The presiding Justice, Mr Amuah however disagreed. While admitting that customary law frowns upon such conduct it was not captured by the law relied upon by the prosecutors. He said Glah had lived with and cohabited with these spouses peacefully for 17 years and has two children with each of them. If the opposition from the family is now feared, its the family that has to be restrained, he stated.

He quoted the case of Beatty v. Gillbanks (1882) 9 Q.B.D. 308 which arose out of opposition to the Salvation Army in its early days.

“The local Salvationists had been convicted of unlawful assembly and ordered to find sureties to keep the peace by a court of petty sessions.

On appeal to the Divisional Court it was held that since the association was for religious exercises an assembly and procession in the streets was not in itself unlawful. The disturbance of the peace was caused by the opponents of the Salvationists (known as the Skeleton Army) who had on several occasions violently interfered with their activities. It was clear that had the Salvationists not met in public and marched in procession, there would have been no disturbance of the peace.

Moreover, previous meetings had caused disorder so that the Salvationists knew that similar consequences were likely to ensue. But since the disturbances were caused by people antagonistic to the Salvationists and they themselves had committed no acts of violence, they could not be convicted of unlawful assembly and be bound over to keep the peace.”

He concluded that: “The prosecution would not take the easy course of preventing an association which is not caught by section 207 of Act 29 simply because they the prosecution feared opposition from the family”.

The conviction and sentence were thus set aside.

NB: Author relied on Glah and Another v The Republic [1992] 2 GLR 15-18

See full judgement below.