Kissi Agyebeng, Special Prosecutor
The ultimate day came, and Ghanaians, as well as people in the diaspora, were waiting for the axe to fall. The territory of Ghana was keyed up after a day of emancipation had been vaticinated. Who was the protagonist to trigger such Arcadian tranquility? A scene that would put the overall populace on Twitter. Guess what? It was a foretold patrician and donnish. The populace had been upbeat about his forthrightness, gallantry, and horse sense.
Kissi Agyebeng was the binomial nomenclature then, ringing in every ear 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 signatures.
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, I 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 Dramani Mahama, and subsequently hallucinated that, upon his involvement, there isn't ample attestation to be used to criminalize him.
I was entombed with 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 apply to all and sundry, regardless.
I know there's a policy formulated by the Supreme Court known as presidential immunity, where sitting presidents 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, 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.
First, some disagree that equality under the law means just that. If a former president commits a crime, he should be implicated.
This position skirts the fact 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. The blanket belief that the prosecution of a former president is being used as a political tool whittles away that legitimacy.
Others wrangle that a civil president should not be inculpated with any crime, as doing so will exact a permanent injury to 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, 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 categorized into two by our legal theorists.
The first category, known in Latin as "malum in se," is used to define conduct that is considered naturally evil as determined by the sense of a civilized community.
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 presidents or presidential candidates for crimes believed to be nefarious. According to the description, scandals at this point are considered to be gravely immoral in every jurisdiction; hence, John Dramani Mahama ought to have been indicted and prosecuted by the Special Prosecutor.
Equal protection under the law is a value that Ghanaians should hold dear. But when it comes to a former president, voting 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, they must be zapped at all costs 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, which 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 exempt 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 Agyebeng: 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," which is a cornerstone of penal liability, emphasizing that guilt cannot be established solely based on an action labeled "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 wagering that Kissi Agyeben would have emerged better off Martin Amidu to weed out all the corrupt acts on the shores, not knowing that he is a prophet of those who execute them 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 have rushed about like a bull in a China shop as far as that legal incidence was concerned. I have apprised you before that I do admire your legal brains but implement them impartially in all legal matters.
Felicitously, reflect and rejig that promulgation you have issued, or else you shall be poised to incur the inveterate testiness of Ghanaians.
