The three GECOM employees who on Tuesday declined to testify before the Commission of Inquiry (CoI) into the March 2nd 2020 general elections have together filed a $150 million suit against the State, which they have accused of breaching their constitutional right to a fair hearing and against self-incrimination.
Denise Babb-Cummings, Shefern February and Carolyn Duncan had been summoned to appear by the Commission; but their lawyer, Eusi Anderson, in a letter to Chairman of the CoI, retired Justice Stanley John, said that while his clients would attend, they were going to provide information no further than basic biometric data.
The contention of the trio is that since they are currently before the Court facing criminal electoral charges stemming from the 2020 polls, participating in the CoI would adversely affect the fairness of the criminal proceedings against them.
In the fixed date application (FDA) filed on behalf of his clients, Anderson is seeking damages to the tune of $150 million for what he says is the violation of their constitutional right against self-incrimination and a fair hearing as protected by Article 144 of the Constitution.
Against this background, the women are seeking several declarations; including that the summonses issued to them by the CoI have resulted in a breach by the State of its duty to ensure that every person charged with a criminal offence is given a fair trial.
The lawyer argues that the summons issued to his clients by the CoI which was established by President Irfaan Ali is likely to impugn the fairness of their prosecution for the criminal charges levelled against them, which stem from the “identical factual circumstances” the Commission is tasked with inquiring into.
It is on this point that Anderson is asking the High Court to quash the summonses which would have been issued by the Chairman of the Commission.
He is seeking on behalf of his clients, damages in excess of $50,000,000 each for breach of their constitutional right to “due process, a fair trial, the State’s duty to ensure a fair trial in their substantive criminal proceedings and the State’s willful exposure of them to self-incriminatory testimony under risk of compulsion and contempt.”
They are also asking for any further order and costs which the Court may deem just to grant.
Listing the grounds for the application, Anderson said that it is the State, specifically the Executive branch, which is responsible for the duality of criminal proceedings and the CoI into his clients’ alleged involvement.
He argues that for all intents and purposes, it is the very State through the Executive branch that is seeking a conviction in the criminal proceedings for which they are charged, “while simultaneously seeking a conviction in the court of public opinion and the Commission of Inquiry.”
He contends that key to the latter, is their participation in the proceedings of the CoI and the “coercive powers to ensure their participation therein and draconian sanctions for non-cooperation.”
Anderson argues that it is within this context that the summons issued to his clients to attend the CoI is “unjustified, unconstitutional, manifestly prejudicial and an egregious breach of their right to a fair trial.”
He advances that the Commis-sion of Inquiry Act Cap 19:03 confers the Commission with the power to make findings of “facts, condemn a witness for giving false evidence and penalize a witness for interrupting proceedings by non-cooperation.”
These powers and sanctions he says in the FDA, attract imprisonment for up to six months; while adding that his clients ought not to attend at all, nor be summoned to, in so far as they remain charged for a criminal offence born out of the circumstances the Commission is inquiring into.
The lawyer advances on behalf of his clients in their application, that their attendance and participation “risks the jeopardy of giving answers which can be deemed to be false by the Commissioners in their sole discretion,” in accordance with the Commission of Inquiry Act, or “in the extreme their non-participation, by silence when present or absence altogether, can be construed as contempt which is punishable by the Commission with a fine and imprisonment.”
The application goes on to state that in either situation of act or omission, the Applicants remain charged and present before a court of law and the consequences of the CoI receiving their full participation or judging them as contemptuous by absence or silence is likely to adversely affect the fairness of the criminal proceedings which, among other things, predated the commencement of the CoI’s mandate.
Counsel deposes on his clients’ behalf that in so far as the State is criminally prosecuting them and the State is also seeking to compel them to give evidence as witnesses in a tribunal which has identical, if not greater powers than the Magistrate before whom they appear, “the State is in and of itself breaching their right to a fair trial in both fora of inquiry.”
The FDA deposes that “the risk of contradictory answers, contrary findings, pollution of the public opinion, varying standards of proof, the absolute right to silence in the criminal proceedings and the tacit putting of their case through cross-examination in the said criminal proceedings and any adverse findings by the Commission are all caution flags which the resourced and all-powerful State should not ignore.”
The FDA then goes on to assert that the Constitution expressly forbids the State from acting in a manner to undermine a citizen’s right to a fair trial; while adding that the State must “preserve, protect, defend and further the rights of all its citizens to a fair trial.”
The Applicants say that it has been two years since their prosecution for criminal charges commenced and that the State is yet to call a single witness against them. Against this background and having been summoned by the Commission, they complain that what the State is in effect attempting to do, is “summon us as the first witness against ourselves in both the Commission of Inquiry and the criminal trial,” which they say is yet to start.
They say they remain “deeply fearful” that the State, in its criminal prosecutorial jurisdiction, “will benefit from any participation we embark upon consequent (to) this summons.”
“It is damned if we do and damned if we don’t,” the women say.”
Meanwhile, the application adds that the onus is on the State to “actively keep this duty at the forefront of all its decisions and conduct,” even as it notes that the Applicants will assert at trial that the State is indivisible “in so far as it is the same State which is prosecuting criminally and establishing the CoI for the identical fact matrix.
The Applicants say they will contend at trial that they are entitled to damages “least because of the emotional damage and distress,” the State has caused them, but most because “all these consequences of the breach were foreseeable and within the realm of possibilities when State actors proceeded to issue” the summonses.
“The Court has a duty to vigorously telegraph to all State actors that the jealous protection of Constitutional and human rights is only tangible in a substantial award of damages where such egregious breaches are established,” the FDA says.
In the letter to Chairman John on Tuesday, Anderson had said that while his clients would attend, they would only provide basic biometric data that is publicly available on their national identification cards; and that any question posed outside that “strictly delineated parameter will be met with an invocation of the constitutional right to silence and against self-incrimination.”
