Africa-Press – Ghana. The Judicial Service Staff Association of Ghana (JUSAG) has responded to Special Prosecutor Kissi Agyebeng on his lamentations regarding the cases that are dismissed by the courts.
JUSAG told the Office of the Special Prosecutor (OSP) that it noted a growing trend where anti-corruption agencies and crusaders assume immunity from criticism or unfavourable judicial decisions.
Any decision against an anti-corruption institution is interpreted to mean an endorsement of corruption. However, the rule of law requires that the laws be applied and enforced on all persons and institutions without fear or favour, affection or ill-feeling, JUSAG said.
“Much as the Judiciary is not above the law and are not immune from criticism, the OSP is equally a creature of the statute. It derives its powers from the law. Its functions and powers are exercised within the confines of the law. The Judiciary owe it a duty to ensure that no institution goes beyond its boundaries in the exercise of its statutory powers and functions. And this duty includes the power of the Judiciary to review itself through avenues provided by law. This may include appeals, reviews or applications to set aside any impugned order or decision of Courts. No matter how genuine the issues raised by the SP may seem, we all need to appreciate that the OSP is a novel institution in our 4th Republic, and will require tenacity and support of all players in the legal industry to set good precedence to guide the operations of the OSP and future judicial decisions.
“There are judicial avenues through which the concerns raised by the OSP can be legitimately addressed. Judicial remedies referred supra exist for concerns such as so-called ‘faulty judicial decisions, courts acting without or in excess of their jurisdictions, and misapplication or misinterpretation of the law’. The cases were tried at the High Court, and if the SP disagrees or is dissatisfied with the decisions of the High Court, it could proceed to the Court of Appeal, and will still have the opportunity to appeal further to the Supreme Court for redress.
“The OSP and legal luminaries ought to support the Courts and the Judiciary to broaden the frontiers of the justice system through judicial review. Instead of resorting to only the press briefing which does not change the ‘wrong’ judicial precedence supposedly claimed by the SP, his office, the legal system and the people of Ghana are better served if he explores the avenues of judicial review provided in the Constitution of Ghana. The Courts do not exist to satisfy itself or the whims and caprices of any individual or state institution. Indeed, justice emanates from the people and is exercised in the name of the Republic by the Judiciary which is independent, and subject only to the Constitution.
“It is our collective duty as Ghanaians to support critical state institutions such as the OSP. Equally, we owe it a duty to support the Judiciary through constructive criticism, and the use of appropriate fora to address our concerns in a manner developmental to the course of justice delivery and not detrimental,” JUSAG said in a statement.
This was after Mr Kissi Agyebeng had said that just as it is essential that anyone accused of a crime should have free access to the courts so that he may be duly acquitted if found not guilty of the offense with which he or she is charged, it is also of the utmost importance that the judiciary should not interfere with investigation and prosecution authorities in respect of matters which are within their statutory powers.
He said it would be gravely inimical to public policy, the fight against corruption, and the administration of justice if the courts stepped into this arena to decide who should be investigated or prosecuted and who should not.
The danger of this startling decision is once again obvious, he said.
“A judge has granted two persons immunity from investigation for suspected corruption and corruption-related offences and hence immunity from prosecution. This decision opens up a calamitous deluge as every person under criminal investigation would be encouraged to take out suits to injunct investigation and prosecution bodies from investigating and prosecuting them. The real and present danger looms largely on the consideration that by so doing, persons under investigation would conscript the judiciary to clothe them with immunity from investigation and prosecution.
” I do not intend to sound as though I am predicting doom. However, with this development, it would not be long, a suspected murderer or armed robber would boldly walk to court with the unthinkable prayer that the court should injunct law enforcement agencies from investigating him. We are not suggesting that the OSP is infallible and that every case brought by the OSP or against the OSP should end in a favourable outcome – no matter how improbable the evidence.
“However, it seems to us that the flagship public agency created by law to fight corruption should receive better regard and consideration by the courts and not the developing trend of dismissiveness and regression without regard to its governing enactments, and certainly not the erection of non-existent hurdles in its work and operations,” he said at a press conference in Accra on Wednesday November 29 while indicating that there appears to be a developing trend of rather regressive and dismissive judicial decisions in respect of cases involving the Office of the Special Procsueirt (OSP).
“In one case, the OSP applied to the High Court for a confirmation of a freezing order in respect of a deceased person’s estate. The judge refused to confirm the order by, in effect, holding that the OSP had come too late since the person of interest had died and that his death had extinguished the enquiry commenced after the occurrence of death.
“The danger of this outcome is obvious. It is to effect that a person may, in his lifetime, acquire property through corruption and then upon his demise happily pass on the corruptly acquired property to his estate and by so doing, extinguish all scrutiny as to the
propriety or otherwise of the acquisition of the property because his corrupt activities were not discovered during his lifetime.
“Indeed I have had several calls from well-meaning lawyers admonishing me that they have heard talk that our friends who have been elevated to the bench and presiding over cases in court do not take very kindly to criticism, especially of the public calling out variety as we do.
“And that if the office persists in the media releases, the judges will gang up against the office and throw out all our cases. Mind you, members of the press, collective admonishing is from very senior and experienced lawyers who are members of the law. Members of the press, my learning of the law for the past 25 years in three different jurisdictions, my teaching and training of lawyers and law students for the past 17 years, my 20-year record at the bar all bear testimony that I will be the last person to lead an institution to attack the judiciary.
“It will be absolutely of no good should it be the case that the OSP is set against the judiciary or that the judiciary is against the OSP. That will surely spell disastrous consequences for this republic, especially in the fight against corruption to the glee of corrupt persons.”