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Friday, August 14, 2009

Editorial: Betty Mould is a danger to Rule of Law

Attorney General Betty Mould Iddrisu
Attorney General Betty Mould Iddrisu

Shortly after President JEA Mills said in an interview published by the Daily Dispatch that he has full confidence in the Bureau of National Investigations, his Attorney General has suffered to major defeats in two successive days in government’s bid to defend the BNI’s blatant abuse of the human rights of suspects.

What we find most worrying is the posture of the government, specifically the President and his Attorney General, both of whom are lawyers. They are exhibiting a very worrying contempt for the rule of law and civil rights.

Two prominent civil society actors have this week pointed out this worrying trend. The head of Legal Resources, Edward Amuzu, is calling on Mrs Betty Mould Iddrisu to rather focus on defending the fundamental rights and liberties of the citizen than to fighting against it. In fact, he has blamed the Attorney General “and her team of experienced lawyers” for choosing to defend such cases in the first place.

The High Court on Tuesday ruled that the BNI has no mandate to seize passports of citizens without recourse to the courts. Also on Wednesday, facing another obvious embarrassment the A-G finally pulled out from defending another case where the plaintiff is demanding that his right to legal counsel be respected by the BNI.

“I am sad to the extent that the Attorney General’s Office and her team of lawyers will allow these cases to go this far for the court to make this pronouncement because I think it was too obvious that the courts will reach the decisions that they have reached,” Mr Amuzu says.

In a Joy FM interview he added, “I will be highly surprised with the calibre of people in the AG’s office and with the powers they have been clothed with will not take quick decisions which will protect human rights, but will rather do this sort of thing and go and defend these cases in court.”

Asare Otchere-Darko of the Danquah Institute has also described as unfortunate the attitude of the A-G and the government on human rights issues and has called for greater respect of human rights on the part of the state.

He has also taken the A-G and the Interior Minister on for maintaining that the BNI is entitled to hold on to the passport of former Foreign Minister Osei Adjei even though the High Court ruled on Monday ordering the BNI to release Mr Osei Adjei’s passport to him, further holding that due process must be followed before a citizen’s passport can be seized by a state department or operative.

The A-G and Cletus Avoka are saying that the government is entitled to hold on to the passport for 7 days after the judgment and that they don’t have to comply with the judgment until the one week has expired if they then decide not to file an appeal.

That is a complete and unfortunate misreading and misunderstanding of the law, exposing the historical instinct of the (P)NDC against the protecting of human rights.

In fact, Rule 27(3) of the Court of Appeal Rules, (CI 19) says that there is a 7-day stay of execution with respect to a “judgment or decision appealed from”. That simply means that although the mere filing of an appeal does not operate as a stay of execution (under rule 27(1)), a person who files an appeal will have a 7-day stay from the date of the judgment appeal from.

In other words, unless you have to have filed an appeal, you cannot claim the 7 day stay. This is basic, and has been upheld in the case of AMAKYIE v. ABABIO AND ANOTHER [1982-83] GLR 933 by Mensa-Boison JA at page 937 as follows:

“In my opinion rule 27 (3) did not operate as a stay of execution of the ruling on 22 March 1982 since there was no notice of appeal given against that decision. There was therefore no irregularity in the execution of the writ on 23 March 1982.”

In effect, you can go into execution of a judgment even on the day it is given. The only thing that can stop you, for a period of 7 days, is if the losing party has filed an appeal.

Indeed, Order 41 of the High Court Rules expressly state that a judgment comes into effect as soon as it is given.

What the A-G, the state’s number one lawyer is saying to Ghanaians is that even if a court of competent jurisdiction rules that a prisoner has been unlawfully detained and that, habeas corpus, the prisoner must be immediately released, the prosecutor can refuse to comply, claiming they have one week to decide whether or not to appeal and as they wait to make up their minds the person must continue to rot in jail!

Clearly, the A-G is not showing any comforting regard for the rule of law and respect for fundamental human rights. This is extremely worrying for Ghana. It is very dangerous for our democracy.

Credit: Statesman/Ghana

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