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Opinions of Wednesday, 16 September 2015

Columnist: Ata, Kofi

Is (In)justice Dery legally bankrupt or just arrogant?

I have read a summary of the application for interlocutory injunction by and the encounter between the High Court Judge, Injustice Dery and Anas’s team and it is despicable that this judge has the audacity to ask for such reliefs from the court (see “Judicial scandal: Indicted Justice Derry sues Anas” and “Justice Dery freed drug baron for Ghc11, 000 and a goat”, Ghanaweb, September 13 and 14, 2015 respectively). This is a brief analysis of the two reliefs being sought by the now disgraced high court judge in his application for the interlocutory injunction to prevent the public showing of the video.

First and foremost, I must admit that it is within his rights to go court and again, when it comes to secretly recording someone without his or her permission the product may be unacceptable as evidence in court because of the right to privacy and the method used in obtaining that evidence. However, the right to privacy is not absolute and in such matters, it is balanced against the public interest test, press freedom, free speech and the public’s right to know.

In this particular case, the public interest is overwhelming and therefore overrides Injustice Dery’s right to privacy. For that same reason, the illegality or otherwise of how the evidence was obtained is irrelevant because of the high public interest. The second legal barrier for the judge is that, there is no such thing as a right to commit crime in private. So the arguments about his right to privacy and illegal recording of private conversation fall flat and rendered null void. In fact, some aspects of the acts being complained of (secret recording of private conversation without permission and the act of taking bribe to free a criminal in a false judgment) are crimes under Ghanaian law. For this reason, the secret recording of the criminal act is a service to Ghana. This is particularly true when one considers that corruption is a threat to foundations of justice, democracy and the very existence of the state as well as corruption causing Ghana millions if not billions in lost revenue.

The next hurdle for Injustice Dery is the right to know. The public has the right to know about matters that are of public interest and for the public good such as crimes against the state, the administration of justice. Unfortunately for Injustice Dery, as a high court judge, his behaviour, actions and omissions both inside and outside court are of great public interest. For these reasons, the public good of knowing how Injustice Dery has been dispensing injustice or justice in his court overrides protecting his privacy, image and personal goodwill.

The other problem for Injustice Dery is press freedom and free speech. Preventing the showing of the video will be tantamount to curtailing press freedom and free speech in Ghana under the 1992 Constitution. It is not in the interest of Ghana to protect his privacy by curtailing the two freedoms in a democratic society. In fact, such curtailment could even breach the constitution but I stand for correction since I am not a constitutional lawyer.

The most unreasonable and irrational argument advanced in Injustice Dery’s application is the fact that a public showing of the video will be prejudicial to his case or defence. The fact is, the Judicial Council which is investigating the allegation against him has already watched the video. Moreover, he is not being investigated by the public or being tried in the court of public opinion. Therefore, the showing of the video in public will have no effect on the Judicial Council members who already know what is on the video. Even if the Judicial Council found him guilty as charged and he is subsequently charged for criminal offence, he will still be tried in a competent court of jurisdiction and not in the court of public opinion. This argument is not only bizarre but perverse.

The relief that immunity granted to Anas and his team by the Judicial Council is illegal and therefore null and void is neither here nor there. To prevent citizens from abusing and making vexatious allegations against others and organisations, the use of Whistle Blowers Acts is limited. Again and as in the right of the public to know, press freedom and free speech the overarching principle is the public interest. If the public interest is met then anyone who relies on a Whistle Blowers Act to make public information that is highly of public interest is protected under Whistle Blowers Act. The Anas investigative work perfectly fits the public interest test, no matter how high the bar is raised. For that matter, Anas and his team, including the company he operates under deserve to be protected from any future prosecution against them, criminal or civil. The investigative work will save Ghana in millions, improve the administration of justice and strengthen democratic institutions in Ghana.

The Judicial Council and the Attorney General are therefore within their authority to grant the immunity from prosecution. In fact they are on solid legal grounds. Injustice Dery’s application for the immunity granted to Anas be striped off flies in the face of both the letter and spirit of the law. In fact, he has no legal basis to make suck application and the odds are starkly against him.

I also notice that his application is made to a High Court and not the Appeal Court. The Judicial Council is a quasi judicial body with the same powers as High Court. If that is accurate, then if Injustice Dery is appealing against a decision of the Judicial Council/High Court, then the right place is the Appeal Court. For this reason a High has no jurisdiction to review a decision made by a body that has the same powers as a High Court. Consequently, the application should be dismissed outright by the High Court but granted permission to take it to the Appeal Court. I wonder if the Injustice Dery’s Attorneys were unaware of the appellate system, what about Dery himself who is described as a legal luminary in Ghana?

The other illogical argument by Injustice Dery is that he was entrapped by Anas and his team and that without the entrapment he would not have taken the bribe and set the criminal free. I am not sure if Injustice Dery is listening to himself but he ought to be reminded of the most powerful legal doctrine against him. That is, the legal maxim or doctrine of “Ex turpi causa non oritur actio” (from a dishonourable cause an action does not arise or one cannot benefit from his/her own wrongful or illegal action/s).

A good example is the case of one Mr Gray who was a passenger in the Ladbroke Road Train Crash in October 1999 in the UK. Although not badly hurt physically he subsequently developed severe post traumatic stress disorder and depression. In August 2001 he was involved in an altercation and as a result of his psychological condition, stabbed the other person to death. It was proven that he would probably never have acted in that way but for the psychological injury he suffered from as a result of the crash. He subsequently sued Thames Trains and argued that his actions were a consequence of the negligence of Thames Trains and claimed future loss of earnings.

The Court of Appeal agreed the claim was fair. Thames Trains appealed to the Law Lords (then UK’s Supreme Court) who ruled that Mr Gray’s claim for future loss of earnings failed because of the legal maxim “ex turpi causa” (one cannot base a claim upon your own unlawful actions). The same maxim applies in Injustice Dery’s case because he is claiming that he collected bribe, gave a false judgement and set a criminal free because he was entrapped (all unlawful and illegal act). He therefore cannot ask for any of the reliefs he is seeking based on this legal maxim. It’s as simple as that and in fact, the court must not assist him to get away with his crime.

Last but not the least, it is very interesting to note that Injustice Dery made references to what is done in the US and UK in such matters in his application. In fact, he is lucky not to be in the US and the UK because had he been secretly recorded to have taken bribe and actually freed a criminal in both countries, he would have been arrested by the police, charged to face prosecution and not invited by the Chief Justice to receive a letter informing him about the allegation against him. This is because in the US and the UK, unlike Ghana, institutions do work without fear or favour and irrespective of who is involved most of the time.

This application is a wasteful exercise in futility and perhaps even vexatious.

By Kofi Ata, Cambridge, UK