The Special Prosecutor Has Become A Fair Cow To The Legal Precepts

The ultimate day came and Ghanaians, as well as, people at the diaspora were waiting for the axe to fall. The territory of Ghana was keyed up _ a day of emancipation had been vaticinated. Who was the protagonist to trigger such Arcadian tranquility ? A scene, which would put the overall populace in a twitter. Guess what, it was a foretold patrician and donnish. The populace had been upbeat about his forthrightness, gallantry and horse sense. Kissi Agyeben was the binomial nomenclature then, ringing in every ears at that time, a man who had squirreled around for all the requisite facets about the sample. The people intensified their moods to be like a cat on a hot tin roof, because truthfulness and equitability were his signature.

The moment he clutched the microphones with his hands, he exhibited his cloaked partisan slant. A sacrilege became his unbridled staple diet at that very point. Once loved, got draconian stigma and animus from various provinces like a shot. Kissi Agyebeng without compunction articulated that, the government official 1, whose identity had been put on tacenda is the erstwhile President, John Mahama, where he subsequently hallucinated that, upon his involvement, there isn't ample attestation to be used to criminalize him. I was entombed with a foreign shock waves upon hearing that. Indeed, it is a tortuous process to criminalize such individuals, but it isn't a sheer mirage. De Bracton once said, " The King should be under no man, but under God and the Law " This means, the principle of equality before the law must be applicable to all and sundry regardless.

I know, there's a formulated policy by the Supreme Court known as ' the presidential immunity ', where sitting president (s) must not be subjected to either civil or criminal proceedings in Court. This indemnity affects the incumbent president only ; former presidents aren't given this same dispensation. In fact, Article 57(6) of the Constitution states that, "Civil or criminal proceedings may be instituted against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President " This is a luculent springboard to have been used to indict John Mahama by the Special Prosecutor and on top of that, where the US Court has given us the underlying reasons to impeach his inclusion.

When considering charging a former president with crimes, two extreme positions should be discarded at the onset.

1) First, some dissent that, equality under the law means just that. If a former president commits a crime, he should be implicated.

This position skirts the corporeality that, the costs associated with charging a former president – particularly one who is a current candidate for president – can be punitive.

Our criminal justice system relies on the citizenry believing in its legitimacy. Blanket belief that the prosecution of a former president is being used as a political tool, whittles away that legitimacy.

2) Others wrangle that a ci - devant president should not be inculpated with any crime, as doing so will exact permanent injury on the credibility of Ghana's democratic traditions. This reasoning overstates the likely repercussions as well. In recent years, two democratic countries, France and Israel, have indicted a former or sitting leader, and both of those democracies are still functioning effectively.

In France, former president Nicholas Sarkozy was charged and convicted in 2021 on corruption counts. And in Israel, sitting prime minister Benjamin Netanyahu was charged with bribery, among other counts.

Like France and Israel, the Ghana's democratic traditions are hulking enough to swallow the prosecution of a former president or a presidential candidate.

But disgustingly, our Special Prosecutor, Kissi Agyeben was so egocentric to place magnitude on these.

Criminal Law has been catalogued into two by our Legal theorists.

I) The first category known in Latin as " malum in se " which is used to define conduct that is considered naturally evil as determined by the sense of a civilized community.

II) The other category is known in Latin as “malum prohibitum” and involves conduct that is a crime only because the law makes it so.

In plain terms, the malum in se is illegal because the conduct, on its face, is heinous.

In contrast, malum prohibitum is immoral only because a law has deemed it illicit.

For instance, a premeditated murder is immoral on its face. Prosecutors should only indict former president (s) or presidential candidate(s) for crimes believed to be nefarious. By the description, scandals at this point are considered to be a grave immoral in every jurisdiction, hence John Mahama ought to have been indicted and prosecuted by the Special Prosecutor.

Equal protection under law is a value which Ghanaians should hold dear. But when it comes to a former president, vying values must be surveyed. Is the purported tort so ghastly that the benefit of holding a former president equal before the law outweighs the price associated with the appearance of a partisan, weaponized prosecution? Scandals on any day are bête noire to every rational human being and as such, it must be zapped at all cost under the operationalism of our legal efficacy.

For the Special Prosecutor to exculpate John Mahama from a crime he admitted John Mahama was entangled in it, got me into a hotbed of bafflement. Criminal liability law acknowledges situations where a person, despite engaging in a criminal act, should not be held accountable for it. This includes individuals who, due to mental incapacity, lack the culpability required for criminal guilt. Another group exonerated from certain criminal liability is minors. The underlying rationale is that these individuals cannot form the obligatory intent for it to be just to hold them at fault for the crime. In essence, they are responsible for their actions but not legally liable due to their incapacity to meet the required intent standard. On this note, I want to put this to Kissi Agyeben, is John Mahama being affected by any of the aforementioned deficiencies which we don't know ? Your willingness to massage this legal tussle is nonsensical ! You want to skate on thin ice, right ?

This concept is pellucid under the General Principles of Criminal law, where there is this legal maxim " actus non facit reum, nisi mens sit rea” is a cornerstone of penal liability, emphasizing that guilt cannot be established solely based on an action, labelled as " actus reus " — it must be accompanied by a guilty state of mind, known as “mens rea.” His pronouncement of John Mahama being liberated from this chicanery was perfunctorily done and politically driven. We were wager that, Kissi Agyeben would have emerged better off Martin Amidu to weed out all the corruption acts on the shores, but not knowing, he is a prophet of those who execute it clandestinely. Let me tell you the axiomatic truth, you have slighted your personality wholly and have put your office into incorrigible snafu. Ghanaians are all het up about that impetuous declaration _ it wasn't judicious to had rushed about like a bull in a China shop as far as that legal incidence was concerned. I have apprised you before, I do admire your legal brains but implement it impartially in all legal matters.

Felicitously, reflect back and rejig that promulgation you have issued or else, you shall be poised to incur the inveterate testiness of Ghanaians.

By : Prof. Dinkum.
(The Buzzing Rapine of Erudition)
E - mail : dinkumchoice@gmail.com

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