Dear Editor,
There are many troubling aspects of the recent written decision of the Chief Justice on the issues before him involving the Commissioner of Police. This is from the point of view of one not versed in law.
One sentence in the CJ’s ruling, which aimed at justifying his ruling, leaps out of the page. He points out that a defendant may suffer the consequences of an unwise prosecution. One of these is in “family relations.” He says this to justify hearing the case against the DPP’s use of her discretion.
So far as the Commissioner of Police is concerned, by his own testimony and that of his accuser, he tampered with his own “family relations” by finding himself in a hotel room with a woman who had gone to him for support and some kind of protection. I find it “irrational” for the honourable Judge, in the remarks supporting his decision, to suggest that he could at that stage undo what the suspect had already done, and done, “knowingly,” to his own “family relations.” The Chief Justice is therefore protecting a citizen who had previously thrown those relations out of a hotel window. Is this not an attempt to guard the Chief Guardian?
Apart from that, the Chief Justice studied the statements of both the accuser and the man accused. He seemed to make a mental cross-examination of the two parties. To this process counsel were not admitted. The press report does not allow us to see how the Judge dealt with any doubts arising in the judicial mind. One part of his mind posed questions and another part answered them. All of that may be very good legal procedure. We just do not know.
What we as outsiders know for certain is this. In matters of alleged rape there are always power relations. And power relations can be read into certain situations. A Commissioner of Police, armed or unarmed, is a person of great power compared to an average woman asking him a favour. Who will decide the conditions under which he goes with her into a hotel and a hotel room? She or he? Did the Chief Justice look into that? What were her chances if she did not go? Did he promise her anything for “good” behaviour? What choices were before her? This would be a good place for the court to speculate about “consequences.”
One report reads, “Chung ( ie,the CJ) said that after the two left the hotel and were driving in the car, Green was talking to her as though they were lovers.” And then he poses the question, “Why would the applicant soon after assaulting and having forcible intercourse with the complainant speak to her as though they were lovers?”
My former, much respected colleague, has spent a lot of her time for years arguing and teaching that rape is not “intercourse”; that forced intercourse is a serious crime. It is hard to teach those already learned.
Unfortunately, there was no one to answer the very pertinent question posed by the Judge and repeated in the previous paragraph, The answer is not a mystery to those who have seen even one bandit movie. It is of course possible that a DPP could lack reason. Now we know that a court can lack imagination.
If it is true that there is this fantasy that some things belong solely to a jury, it is also true that learned judges on their own may be ill equipped to be sole judges of the facts. I am very much on the side of those men on the spot who have said in their own words that the CJ’s leading decision can lead to new immunities, that is protection from prosecution. I am also delighted that it is a woman who expressed fear that the post of DPP may now be undermined. Many other readers pointed out the value of cross -examination, which the ruling may result in avoiding.
Is there really need for judicial review as the Chief Justice advises, when a suspect is already on the way to the courts?
Yours faithfully,
Eusi Kwayana
