Dear Editor,
On Tuesday, March 8, 2016 the Court of Appeal (CoA) delivered an historic ruling in which for the first time in this country a jury acquittal in the offence of murder was set aside and a new trial was ordered.
The appeal by the Director of Public Prosecution (DPP) is a contravention of the fundamental right against double jeopardy enshrined in Acticle144 (5) of the 1980 Constitution: “No person… Tried by a competent court for a criminal offence and … acquitted shall again be tried for that offence…” The question then arises as to whether the constitution permits any abridgement or interference with Article 144(5), and whether the DPP has jurisdiction to appeal. In my opinion that was a question the CoA should have disposed of first. And I would respectfully suggest that both questions have to be answered in the negative. The High Court was “a competent court” and the matter should have ended there.
Sections 33A, 33B, 33C and 33D (ie 33A-D) which are amendments to the CoA Act Cap: 3:01 were the statutory provisions under which the DPP appealed and the CoA ordered a new trial. But sections 33A-D could not, as mere statutory law, override clear and unambiguous constitutional prohibitions or restraints, because our jurisprudence recognizes the constitution as our supreme law. So that if sections 33A-D are found to be inconsistent with or repugnant to Article 144 (5), the exercise of any power derived from those amendments, would be unconstitutional.
Prior to sections 33A-D which amended the Court of Appeal Act, the CoA had no such power of setting aside a jury verdict of acquittal and ordering a new trial, and the DPP had no power to appeal such a verdict. The DPP’s power (conferred in Act2/1978) was limited to a reference to the CoA “on a point of law” only; and the CoA to an opinion upon such a reference: “a reference… shall not affect… any acquittal at the trial.” A similar question about the constitutionality of the statutory extension or increase of the DPP’s power in relation to a fundamental right (ie to a fair hearing), had arisen in the analogous case, Re Application by Norris Williams and Cecil Salisbury, supra Haynes, C, whose position merits quotation: “I have no doubt whatever in my own mind that such a law unless protected as an ‘existing law’ or as a constitutional amendment of an ‘existing law’ would be inconsistent with a right which, in my opinion an accused on a indictable charge has to a fair hearing at the inquiry under article 10(1)”. One can readily apply what Haynes, C says in relation to the fundamental right to a fair hearing to the fundamental right against double jeopardy. So, the question would be: are sections 33A-D “protected as an ‘existing law’, or as a constitutional amendment of an ‘existing law’”? If the answer is, yes, then in point of constitutional law there is no inconsistency between section 33A-D and article 144(5), but if the answer is, no, then there is an inconsistency and sections 33A-D are accordingly unconstitutional, void and cannot stand.
So, the search for an answer now takes us to Article 152(1) (c); it is an important article. I would only point out here that the whole constitutional purpose of Article 152 (1) (c) is to save an ‘existing law’ (eg section 32A which is an existing law because it was enacted and existed prior to the commencement of the 1980 Constitution on October 6, 1980 by prohibiting any unconstitutional extension or increase of any power or jurisdiction conferred by it in relation to any fundamental right. And one thing is abundantly clear: sections 33A-D are not existing law because they were enacted in 2010 (Act 4/2010) after the 1980 Constitution commenced and not prior to. It was an amendment to section 32A of the CoA Act. En passant, I note that any Bill to alter Article 144(5) to provide the constitutional foundation for sections 33A-D to be constitutionally valid, requires a two-thirds majority (Article 16492) (b). Any such order for a new trial (section 33A-D) and a prohibition against such new trial (Article 144(5)) just cannot coexist; the constitution must prevail. All of these considerations lead me to suggest, most respectfully, that the appeal was constitutionally ultra vires. Under sections 33A-D there is no jurisdiction for the DPP to appeal.
Yours faithfully,
Maxwell E Edwards
