Let's have an independent prosecutor
"I know the attitude of the Kufuor Administration is to go after former NDC functionaries whenever we raise the issue of corruption in the NPP government. And the familiar charge is wilfully causing financial loss to the state, not corruption.
"I want to ask President Kufuor whether he and his Government have not wilfully caused much more financial loss to the state with the abandonment of the Quality Grain Project at Aveyime after the Government took it over in 2001.”
This was part of the recent statement issued by the presidential candidate of the NDC for 2000, 2004 and 2008 and former Vice President and head of the economic management team under the NDC regime, John Evans Atta Mills. In spite of the partisan nature of the statement above, it is ready-made ingredients for a good propaganda meal.
The truth is that so long as the power to prosecute or not to prosecute ultimately lies in the bosom of a Cabinet Minister, statements like that made whenever a member of the opposition is tried and/or convicted will continue to carry some value of legitimacy. The nature of competitive politics is that no government would go out of its way to embarrass itself in the eyes of the electorate.
Self-preservation is inherent in governments or people, generally. It is for this reason that our Constitution has embraced the doctrine of separation of powers.
Yet the Constitution, in our considered opinion, has not helped the arduous task of strengthening institutional integrity by leaving that essential component of criminal prosecutions manifestly vulnerable to partisan charges.
In May 2003, at the time that Obed Asamoah, Kweku Baah and others were criticising Justice Afreh's decision in the Quality Grain case, Nigeria's senate was considering a comprehensive anti-corruption bill, which proposed that the prosecutor should be independent of the executive.
The United Kingdom, which gave us the framework of our criminal law, has a Director of Public Prosecution independent of both the police and the executive.
Several common law jurisdictions have gone that way of separation to be seen to be manifestly ensuring fair and equal treatment in the prosecution of offences.
It is time we accept that it is the structure of our prosecution service which gives some credence to charges of political prosecution or persecution.
The process to correct this involves an Act of Parliament for the establishment of the position of Director of Public Prosecutions (which we already have). Second, the Act must provide for a public prosecution service.
Third, it must provide for the independence of the DPP and the PPS. Thus, the decision whether to prosecute or not, the prosecution proceeding itself and matters arising therefrom, and appeals, should all lie with the DPP.
The Attorney-General may still hold or share the power of nolles prosequi. But, the DPP, as head of the PPS must be responsible for all prosecutions within the jurisdiction of the Attorney General conducted on behalf of the Republic.
He may conduct all prosecutions independently of the Attorney General except that the Director of Public Prosecutions shall comply with all instructions or guidelines issued by the Attorney General in writing and published pursuant to the Act which establishes his independence.
On Monday, Dan Abadapki became another high profile politician to have been consumed by the crime of wilfully causing financial loss to the state.
The usual charge of the law being applied selectively is being played up again, with the Minority boycotting Parliament in solidarity with their jailed colleague.
Never mind, at most, five out of ten public servants tried (including Mallam Issah) and judged under the law of wilfully causing financial loss to the state have been convicted.
In our view, the imprisonment of the MP can bring no joy to any well-meaning citizen of this country. Even if the sentence is justified, that only goes to show that senior government officials have been misapplying state funds with impunity. If it is a travesty of justice then that is a matter we hope the appeal system will resolve.
Our view is that, if anything at all, ten years imprisonment appears too harsh if measured not against other general sentences but against other cases exhausted under the same law. But that is a matter for the law courts to settle.
The Statesman, however, has serious issues with the state of the law itself.
In 2003, after reading the erudite decision by the late Justice Afreh, we came to the conclusion that the law can be a good one depending on its understanding by those who are bound by it and its application by those who are in a position to prosecute it.
That is why we advised government to come up with a manual or system to educate every public servant - based on Afreh"s reasoning as endorsed by the Supreme Court - on how to stay clear of the law without making the law emasculate the public servant in applying responsible discretion in his official duties.
Yet, up to date nothing has been set up. A radical education on it and the knowledge acquired by public servants could have even be used to explain why such cases have not come before the law courts in recent years.
The other issue is to, through a constitutional rearrangement, de-politicise prosecutions in this country. The NDC may make their noise but their record compared woefully to the NPP on the courage to prosecute.
For example, there is evidence that by 1998 a docket was ready for the Quality Grain case and was presented to Prof Mills, yet no kind of trial took place, even though Prof Mills, according to leaked cabinet minutes, sounded adamant that the money lost to the state on the Aveyime rice project should be recouped or loses thereof cut.
This may be because even a civil case against Ms Cotton then could have embarrassed top government officials.
The law, 'wilfully causing financial loss to the State', in violations of section 179A(3)(a) of the Criminal Code (Act 29), 1960 (as amended) is said to be too vague to be applied fairly without fear or favour.
It was under the same law (among others) that an official of President Kufuor's government was tried, convicted and sentenced in 2001.
It was under the same law that 5 high ranking officials of the past Rawlings administration were tried, two freed and three of them convicted and sentenced on multiple counts.
It was under this same law that some NDC officials were tried, with Shirley Ayittey and Sati Ocran being found not guilty and the business man Ralph Casely Hayford convicted and freed on appeal.
The law, in our view, is not the problem but its appreciation and the integrity of its application are what need to be manifestly strengthened.