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Thursday, August 2, 2012

Why is Marafa’s case being rushed? Ayah Paul Opens Can of Worms



The Persecution not prosecution of Marafa.

The PERSECUTION NOT PROSECUTION
By AYAH Paul ABINE, PAP National Chairman.

Cameroun was awash a few days back with press information that Mr. Marafa had been summoned up by two courts on the same day. Not any less was Cameroon! Mr. Marafa was to be before one of the courts to plead to a charge of defamation consequent upon a complaint lodged in 2008.

By the laws of Cameroun, prosecution is time-barred if a complaint on defamation is lodged more than four months from the publication of the defamatory material. Prosecution is equally time-barred if four months elapse between two actions in preparation (investigation) or in prosecution.

The summons must have issued on the legal ground that a complaint had been filed not later than June 2008 as the defamatory material is said to have been published during the “hunger strikes” of February, 2008. But what remains inscrutable is how the judge issuing the summons could have conducted investigation every four months at the least for more than four years for an offence least complicated. Is not it true that nothing was required beyond recording statements from witnesses and from the suspect? Necessarily therefore must the judge show that he recorded those statements every four months for over four years!

The judge in question knew or is, at least, presumed to know, that if the contrary is true, then the withdrawal of the complaint was nugatory. Surely does he know that it is a matter of law that even where the complaint is filed within the legal time frame, the lapse of four months without the judge performing an act in investigation or prosecution automatically leads to prescription. Was there any matter legally before that judge at the time the summons issued?

Let us begin by supposing that the judge recorded one statement a week, (which is quite a good record for a diligent Camerounese judge), then there should be at the least 200 witnesses for the prosecution. In that event, the learned judge must redefine the ingredient of corroboration that entailed the hearing of such an astronomical number of witnesses for corroboration to be found in a matter least complicated. Even that granted, one would not be apprehensive of being contradicted in suggesting that, by taking four years to record a statement from the suspect,such a judge has not done much honour to the Camerounese judiciary, on the ground that the prolonged delay smacks of apprehension.

Again, the coincidence between the trial of Mr. Marafa by the so-called Special Criminal Tribunal and the order for him to appear on the same day before a common law court does lead those familiar with the Camerounese judiciary to perceive instruction from the executive arm of government to the judiciary. That raises the whole issue of the independence of the judiciary in a country notorious for a domineering executive. It is an affront to common sense that the subjugation of the judiciary to the all-powerful executive over the decades has met with beneficial complacency from those calling themselves learned. It is all the worse that such is the situation in spite of the constitutional provision that the judiciary is an independent power, and, additionally, that the oath of office of a member of the judiciary enjoins the member, inter alia, “to do justice to all manner of people without FEAR or FAVOUR…”

One should easily understand that the oath absolutely precludes a member of the judiciary from operating under the apprehension of incurring possible adverse consequences from his acts. Submission to apprehension does equally contradict the legal duty to determine issues solely in accordance with the “law and (the) conscience” as stipulated in the oath formula. Few bold jurists would hesitate to read perjury into a judge’s compliance with unlawful orders from whosoever. It is immaterial that a member of the judiciary only indirectly seeks to curry favours because the President of the Republic determines his promotion, appointments and transfers.

A member of the judiciary must be a person of character: impartial, honest, fearless and disinterested. Anyone lacking in any one of these minimum prerequisites falls short of attaining just the threshold of the realm of the “learned profession”. If there can be no democracy without democrats as Mr. Paul Biya once declared, one could by analogy proclaim without fear or favour that there is no judiciary without judges. Assailing Mr. Marafa upon the foundation of extra-legal dictates inevitably leads to the conclusion that Cameroun, in the main, is still in search of judges – independent judiciary much more.

It is difficult in the circumstance to hold otherwise than that Mr. Marafa is being persecuted and not prosecuted. Verily my brother, was not he arrested on the same day with Chief Inoni Ephraim for the same offence? Why is Marafa’s case being rushed when even persons arrested close to five years earlier on are still awaiting trial? Could some learned lawyer explicate whether it is within the law these special expeditious actions by the Special Criminal Tribunal behind the celebrated international principle of “equal protection of the law”! Or is it one of the exceptions à la Camerounaise?

PERSECUTION! PERSECUTION! PERSECUTION!





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