The Office of the Attorney General withdrawing cases for want of defendants is disturbing. That the courts asked the prosecutors to do so is as much troubling.
For in doing so, the message that is being received by the public, even if that wasn’t the intent, is that one could commit crimes and disappear.
We cannot blame the public for harbouring such perceptions, for there are several cases of gambling which come to courts as monetary disputes and remain there because the defendants have absconded. In this instance, however, it is understood that the jurisdiction of our courts end at our borders.
But in the recent case of the ATM racket, this may not be the case. The OAG was advised to withdraw cases against 23 of the 51 accused. According to the OAG, this was done as per the verbal orders of the court and that not doing so may result in contempt of court. It is now learnt that three among the 23 defendants showed up for the hearing and only 20 cases now remain deferred.
However, the other argument is that the OAG should have asked the court in writing to issue arrest warrants against those who could not be traced and produced in court. This did not happen. Those in the judiciary explain that the case will remain open and the accused prosecuted whenever he or she is traced. According to the court, the cases were deferred to ensure that other trials do not get prolonged.
The court’s dilemma is understandable. It could have decided the cases in absentia and issued judgments. But it chose to defer the case so that the defendants could be heard. This may be a good decision for the courts presume all to be innocent until proven guilty. It may be a good decision because if both the parties aren’t in court, there is no case.
However, questions remain. There appears to have been a procedural lapse with the OAG not requesting the court to issue arrest warrants. This lapse magnifies the weakness of the Anti- Corruption Commission of not being able to gather correct information during its investigation. When vital but basic information such as addresses and citizenship identity numbers of those involved in criminal activities are not correct, what do we make of other information that it gathers?
And if we are aware that all means to trace the accused so that they could be brought before the court of law have not been exhausted, why are the cases deferred? If such attempts were made at all, what does it tell us about our law enforcing agencies being unable to trace people even at home? What does it mean when our investigating agencies are unable to gather accurate information? Where could the issue of accountability be situated in this pursuit of justice?
And then, there is the issue of the Parliament’s resolution stating that the responsibility to summon defendants lies with the court. But the judiciary says that resolution are not a law and thus not binding on them. Some say that resolutions are guiding principles while there are others, who argue that in the absence of a law, resolutions are law.
These issues need to be ironed out. The blame game must stop. Investigating institutions need to address their weaknesses. The Act gives them the power to investigate and gather evidence. But it is information that empowers.