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Feature Article of Saturday, 19 May 2012

Columnist: Adjei-Brenyah, Dennis

The Anatomy Of In-Court Failures.

Persecutions And Prosecutions: The Anatomy Of In-Court Failures.

By Dennis Adjei-Brenyah Esq

I have just read a news item on the web that is as interesting as it is stunning.(See Ghanaweb.com, May 16, 2012 “I don’t control judges else government won’t lose cases, VP) Our Vice –President, Mr. John Mahama, has declared that if he could “control judges”, the government would win its cases. As it is now, his government, our government, has “lost” ALL CASES--13 in all-- that it prosecuted in the courts of the land.

There is a reason we have walled separation between the Executive arm of the government and the dispute settling arm we call the Judiciary. Did somebody educate our esteemed V P on the complex web of democracy at work? Our V P is reported to have stated the following:

“ If I could tell judges how rule in cases, government will not be losing all our cases in court…. We have taken 13 government cases to court and we have been thrown out…….If I could influence judges then we would have won all those cases…”

In a sense, the V P is correct. If he, as Vice-President, could dictate to our judges how to rule on cases brought by the government, the legal process would be supplanted with and by political convenience. Legal integrity and scholarship would be soiled and covered up and replaced by political patronage. Legal reasoning and apolitical, dispassionate review and analysis of the admissible facts/evidence, would be submerged and gargantuan Woyomism would prevail ( I could NOT resist throwing this in) Our nation would be much the poorer for that.

In order to overcome the deficit the V P points to, one needs to review the cases the government takes to court. Criminal prosecutions are very well defined. The proof modalities are well known to all first year students. The expectations from the judges are crystallized in long-standing traditions and presumptions---as best we can, to protect the innocent. The governing imperatives at play are not negotiable or alterable at the convenience of the government in power. This is the field of play. An independent prosecutor must be able advise his political chiefs how to separate the grain from the chaff….prosecution properly so called, from political persecution. Assured integrity ought to govern the process. Otherwise, you risk losing 100% such cases of as has happened here. If you are guided and motivated and directed by the urge to persecute perceived political opponents without regard to the fundamentals of the legal process, you are doomed to the inevitable in-court defeats. The multiple defeats the V P refers to speak loudly of several factors in play. Otherwise, how do you explain the very sad picture of a government headed by a Law Professor losing cases left and right. And this, only in the criminal arena. Then, there is the unfathomable case of the WOYOME dole out----in the millions --- sanctioned by the most dubious legal thinking. Prosecution must anchor on solid evidence of criminal wrongdoing, not political convenience.

And so, ” we have taken 13 government cases to court and we have been thrown out….”

Thirteen or more different judges (of various political persuasions themselves) “threw out” those cases. This is a loud and clear affirmation of either little thought going into the prosecution decision process or, worse, outright malice-tainted political persecution.

Our government will continue to lose as long as they are driven by the darker call of persecution of those perceived to be political enemies. 100% defeat in the courthouse is a rather spectacular failure rate, and an even more spectacular invite to focus on MERIT rather than political convenience. “ If I could influence judges, then we would have won all those cases…..”. But, thankfully, it is a healthy statement of our political maturity level. The fearless independence of our judiciary should sustain this drive to our freedom and justice as promised to us by our national creed. The government in power and its agents and functionaries and chieftains are effectively disabled from influencing the judiciary .

The other day, a political chieftain of the governing party threatened that there were many ways to kill a cat. That was in response to the same chain of defeats suffered by this government in the court. That was ill advised. That was arrogant. The “failures” the Vice President decries is, in fact, solid good news for our emerging democracy and its judicial apparatus. A prosecutor’s legal and ethical obligations are NOT owed to the sitting government, but to the much broader imperatives of justice. Let me put it this way: The government “wins”-- and we all win-- when justice is done.

Dennis Adjei-Brenyah Esq; is a lawyer based in New York

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