Whither the face of ‘Prima Facie’?

There has been a huge hue and cry by sections of society, notably by the irrepressible political and social activist, Oliver Barker-Vormawor Esq, who have stated that the standard used by the Chief Justice in these cases is somewhat lower than the one used in the removal of the former Chief Justice, Gertrude Araba Esaaba Torkornoo.

What is central to the debate is the identification of what constitutes a ‘prima facie’ case to ignite the removal process.

Many citizens are confused about the meaning of ‘prima facie’, so a brief description would not go amiss.

Black’s law dictionary says: adjective – sufficient to establish a fact or raise a presumption unless disproved or rebutted: based on what seems to be true on first examination even though it may later be proved to be untrue.

It goes on to say that a ‘prima facie’ case is “the establishment of a legally required rebuttable presumption”.

Simply put, when a ‘prima facie’ case is said to be made, it means there is enough evidence at first sight to warrant further investigation, the outcome of which might affirm or disprove the issue at stake.

In the former Chief Justice’s case, a ‘prima facie’ case was established whilst in the recent petitions against the Electoral Commissioner and the Special Prosecutor, the decision was that there was not a ‘prima facie’ case and they were accordingly dismissed.

The process of any removal must, of necessity, begin with a preliminary legal assessment, which in itself is not a determination of guilt but an examination of whether the petitions, at face value, have sufficient grounds to justify a full investigation.

The process is not and should not be a forum to debate politics.

Backdrop

Against the backdrop of the circumstances that catapulted the current Chief Justice into office, his conclusion that the allegation, on face value, did not reach the high constitutional threshold to warrant further investigation, is profound as it demonstrates a consistent application of this standard devoid of political manipulation. Indeed, some have hailed the President as someone who doesn’t interfere with the duties of the highest court as most of those clamouring for her removal were NDC sympathisers.

In that context, the dismissal of the petitions is a victory for judicial independence as the Chief Justice asserted its constitutional autonomy. It is a victory for independence of the Judiciary and the rule of law.

It showed the accusations targeted at people holding such important and crucial public positions must meet a clear evidential threshold before the removal process can be triggered.

It also demonstrated institutional restraint ensuring but the Judiciary does not become a stooge of the Executive, an essential element of true democratic states.

Otherwise, there is a risk of reducing such petitions into political cudgels, subject to the ebb and flow of public sentiment rather than constitutional standards.

Debate

However, the public outcry that the dismissal of the petitions has engendered has rekindled the internal debate about transparency and consistency, as a section of the citizenry are claiming that the standard seems to have been lowered.

There is ,therefore, an urgent need for clarification as to what should constitute a ‘prima facie’ case in such petitions.

The law must be certain so that any future interpretation can be scrutinised and assessed in the ambit of the stated threshold.

There is an urgent need for public education and legal clarity.

This exercise must involve the publication of clear guidance on how ‘prima facie’ is assessed and what kind of evidence satisfies the threshold so that the citizenry and civil society can meaningfully engage in legitimate constitutional processes without confusion.

The need for the law to be both just and to be seen to be just is paramount in any democratic dispensation.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com