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Opinions of Tuesday, 13 October 2015

Columnist: Cameron Duodu

Obfuscation by lawyers is confusing the public over judicial corruption

Opinion Opinion

It would have been naïve of anyone interested in ensuring probity in public life to have imagined that the mere fact that Anas Aremeyaw Anas had produced what in Ghana is called fili-fili (eye-witness) evidence to demonstrate that there is corruption within our judiciary, would be enough to produce a signed and sealed resolution of the issue.

But one of the more salutary effects of living in a democracy, under the Rule of Law, is that the system provides room for more than one view to be held over any issue. So it is not strange in the least that lawyers should be giving different interpretations of the various actions taken by state agencies, including the judiciary itself, in reaction to the evidence contained in the Anas videos.

Two views by lawyers have caught my attention, and I want to deal with them because they are capable of confusing not only the public, but some of the state agencies that are trying to sort out the judges' corruption issue.

The first is a statement by the counsel for one of the affected judges, to the effect that the police “have suspended investigations into the role of one of the High Court Justices embroiled in the judiciary bribery scandal”. According to this lawyer, “the Police suspended their probe after he drew their attention to ongoing investigative processes by a committee set up by the Chief Justice.”

(The police had announced earlier that they had “commenced criminal investigations” into the judicial bribery scandal and that two of the accused judges were interrogated by the Police Criminal Investigations Department.)

But speaking on the Joy News programme, Newsfile, this lawyer said: “The Police that we met …. told us that because of the content of our letter, they have suspended sittings with our clients until they hear from the Attorney- General, who directed them to do that”. He explained that “the two processes cannot go on side by side.”

The lawyer also said that when it comes to the constitutional provision regarding the stated misbehaviour of a superior court judge, the idea is that because of the independence of the judiciary, the constitution says clearly 'that a judge is indemnified, that is, no action can commence against him in the performance of his duties”. This is calculated to protect the judiciary.'

This view was rightly challenged by a member of the Newsfile discussion panel, who said he found it “it hard to understand why criminal processes cannot be brought against a judge for wrongdoing . After all, (he argued) what do judges themselves rely upon to acquit or convict suspects brought before them? Evidence – and the stronger it is, the easier it makes the judge's job.”

I find this exchange of views interesting for two reasons: first, the strange announcement by the lawyer that the police had “suspended” their investigations because of a letter he had written to them! There is no authority in the land that can prevent the police from carrying out their lawful duty of investigating crime. Not even the Attorney General can order them to stop an investigation into crime.

The reason is that it is the duty of the police to investigate a crime that has been brought to their notice, gather evidence on it, and send a docket on it to the Attorney-General, whose department would then decide whether the evidence gathered is strong enough to warrant a prosecution before the courts on the basis of the evidence produced by the police.

Of course, like all institutions run by humans, there must be occasions when the police and the Attorney-General's Department disagree on whether a prosecution is warranted on a case or not. If there are, mechanisms must have been evolved for resolving such differences of opinion. The two public institutions have to achieve a high level of co-operation if the public weal is to be safeguarded against crime.
So although there may be a conflict here and there, they cannot be at daggers-drawn. Without the evidence gathered by the police, the lawyers in the Attorney-General's Department would have nothing to prosecute anyone with. And unless they are backed by legal advice from the Attorney-General's Department, the police would have many of their more complex cases thrown out by the courts. Period.

I am certain that the police would not have suspended their investigations into judicial corruption just because the lawyer of a person being investigated -- an "interested party" -- had written to tell them they were infringing the Constitution by doing so. The Attorney-General's Department would have told them straight away that they should continue their investigations and that if they had any doubts about the legality of doing so, they would consult their constitutional experts and let the police know.

The point cannot be stressed often enough that because this case of judicial corruption is so unusual, the processes for resolving it may seem complicated. But they aren't, however hard lawyers may try to make it look look like that seem so. There are, basically, just two issues – first, there is the issue of misconduct in office by judges, which must be dealt with by the Chief Justice, who is the head of the service to which the judges belong, the Judicial Service. The Chief Justice has set up machinery that is dealing with that aspect, in accordance with the conditions of service of judicial officials appointed into the administration that she heads. Where impeachment is needed, to fulfil the requirements of the Constitution, proceedings will move to that level in due course.

But on a parrallel course, there is the question of the crime of taking a bribe, as a public officer, which falls, not under the legislation concerning the judicial service, but under the Criminal Code. ANY public officer – and judges ARE public officers – who acts in a manner that, on the face of it, or in legal parlance, provides prima facie evidence – that he/she has infringed the provisions of the Criminal Code, must be investigated, and brought to court to face trial on a charge relating to that criminal offence.

The largely administrative offence of misconduct cannot negate the criminal offence. Therefore, if in order to establish a case in the offence committed under the Criminal Code offence, an investigation has to take place, it cannot be suspended because purely administrative issues affecting the alleged offender are also being pursued simultaneously. And that is as it should be, for selling justice to the highest bidder is such a serious offence that it cannot be dealt with only at one level.
Let us not forget for one moment that it was a judges' decision that placed the administration of the entire country in the hands of our current Presideht! What could be more important, then, than a clean judiciary?

I think it was sheer bravado that made the lawyer for one of the judges make a public statement that the police had suspended their investigations into a possible offence by a judge who is his client – because of representations he had made to the police on the client's behalf.
To begin with, it is not wise for any lawyer to speak on behalf of the police – unless he gets it in writing! For one of the methods used by a smart CID to obtain facts about a case is to throw dust into the eyes of the suspect being investigated. In any case, were the police to say they had not told anyone that they had suspended any investigation, they would enjoy what is called “plausible deniability”. So we should disregard what the lawyer said.

Another lawyer, commenting on the same case, said that it was “illegal” for Anas to have shown his video to the public because cases involving judges are to be held “in camera”. Again, I think the lawyer, experienced though he is, overlooked the dual nature of the process for dealing with judges who take bribes. The misconduct charge against them, as we have seen, may lead to impeachment proceedings, which do take place in camera.

In fact, the judicial council/committee process only provides for impeachment i.e. Suspension, reprimand and removal of judges. It has no criminal teeth whatsoever. That is another reason one process cannot be said to be incompatible with the other. Again, although under Art 127(2) of the Constitution, there is indeed immunity for what judges do, it only applies to what they do in exercise of their judicial power. So unless the Supreme Court interprets the Constitution to say that justice for sale is a (proper) exercise of judicial power, no immunity can apply!

Certainly, no in camera process can apply to the criminal case. Indeed, any attempt to adjudicate, behind closed doors, any case in which highly-placed public officers are accused of taking bribes, would be seen as abolishing “equality before the law” in this country and would be appropriately greeted with a massive revolt by civil society at all levels.

I would like to end this article by appealing to the Attorney-General to heed the plea made by “Occupy Ghana”, less than a fortnight ago, that she should lay out clearly, a time-table of the processes she intends to follow in dealing with this judges' corruption issue. The Attorney-General of all people should know that in legal matters, unless clarity issues from authoritative sources, a great deal of confusion can be caused in the public mind, not least by legal ”experts” out to make mischief for reasons best known to themselves.
If such mischief-makers were to be found to be acting against the public interest (for financial or other gain to themselves) the administration of justice in the country would be even more greatly undermined than it has been already, on the basis of the damaging video evidence shown to some judicial officials and the public..

The President has said he does not want that to happen; the Chief Justice has also said she doesn't want that to happen and that the corrupt judges will be weeded out of the judicial service. There is no obfuscation in any of that. So the Attorney-General should live up to her responsibilities, and clear the air, once and for all. She should, in other words, go the extra mile to take the public with her, in her own vital contribution to the difficult process of ridding our judiciary of "bent" judges.

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