Should we abolish criminal law?

Should we abolish criminal law?
By The Post
Sun 21 Nov. 2010, 04:00 CAT

Rupiah Banda and his minions should not complain when our people believe that the removal of the offence of abuse of office from the Anti Corruption Commission Act has been done to protect criminals in government who know that sooner or later, they will have to account for their misdeeds, particularly the plunder of national resources.

We agree with Maxwell Nkole, the former chairman of the Task Force on Corruption, when he says that the removal of the abuse of office clause is a calculated move by the government to shield selected individuals who are suspected to have abused their offices.

This is because we have looked very hard and tried to find a logical explanation, that stands up to the scrutiny of the principles of integrity and good governance, for the government‘s behaviour in relation to Section 37.

We can find none. We have listened to them trying to justify their actions and tried to accept their arguments for what they are and yet, still, we find no logic in their behaviour.

There is no explanation that they give which stands up to scrutiny. This has left them resorting to lies and half-truths.

They have tried to use what in logic is called the straw man’s fallacy. A straw man argument is an argument based on the misrepresentation of facts that are being debated.

One is said to attack a straw man if you create the illusion of having refuted a proposition by substituting the facts in dispute with superficially similar facts yet unequivalent and proceed to refute facts which were not being debated in the first place.

The common sense of this would be something like, after failing to fight a strong opponent, one creates a figure out of straw and beats it to pulp and then claims that he has won the fight.

This is what is meant when people say the argument that you are using is based on a straw man’s fallacy.

This is what Rupiah and his minions have been doing. They have failed to give reasonable justification for their reckless decision to remove the offence of abuse of office and the attendant prohibition of illicit enrichment by public officers.

They have now resorted to misrepresenting the Anti Corruption Commission Act and accuse it of all sorts of things. One of the principle lies that they have peddled to justify their actions is the fact that the Anti Corruption Commission Act presumes an innocent person guilty.

There is no such thing in the Anti Corruption Commission Act. In fact, what the Anti Corruption Commission Act criminalises in Section 37 is the act, by public servants, of being found in possession of property or wealth which cannot be explained from legitimate income.

The prosecution is required to show to the court by evidence that a public officer has property or wealth which cannot be explained from legitimate and disclosed sources.

It is only once that is done, and the court is satisfied that the prosecution have established a reasonable case, that the accused is required to explain the source of the wealth that cannot be explained from the disclosed income.

According to Rupiah and his minions, this means that the Anti Corruption Commission Act has presumed an innocent person guilty.

This is a senseless argument. We say this because if the logic of Rupiah and his minions has to be accepted, then all criminal laws should be abolished in our country.

This is so because every person who is charged with a criminal offence and is brought before a court, tried and found with a case to answer, is required to explain their role in the crime that is being prosecuted.

If the arguments that were applied to the Anti Corruption Commission Act were applied to every criminal offence, Rupiah and his minions would have us believe that all these laws are unconstitutional. What kind of nonsense is this?

It is amazing that in a country where the vast majority of people who should be in employment are walking our streets without anything to do, their government is fighting for the right of those who are employed in the public service to be able to abuse their offices, acquire inexplicable wealth as a consequence of their abuse and be free from any legal sanction.

Why should people who are employed at taxpayers’ expense push to run all sorts of shady businesses from their public offices and refuse to be accountable?

In a normal country which has normal leaders, people would be too ashamed to mention this, let alone fight for it.

In a country where being employed is a privilege, how can those who have jobs paid for by the taxpayers fight for the right to run businesses from those offices?

It shows just how corrupt the system has become.

Nonsense that should have been stopped by simple common sense has been escalated to the status of public policy.

Somebody reasonable somewhere should have told Rupiah, and even George Kunda, his shameless bootlicker, that what they were fighting for went against public interest and could therefore not form public policy.

We have no doubt that somebody somewhere must have told Rupiah or George that their antics regarding abuse of office were simply unacceptable and would do great harm to the country.

But why have they continued in spite of the clear public disapproval of the route they are taking?

One of the key roles of any government is to determine what public interest is and formulate public policies that enable it to safeguard that interest.

Anything that goes against public interests should not be the basis of public policy.

If this principle is applied to the debate on the removal of Section 37 of the Anti Corruption Commission Act, one would have to ask the following question regarding that section; what public interests were meant to be preserved by the enactment of Section 37?

Once you answer that question, you would have to ask the next question which is: what public interests are going to be served by the removal of Section 37 from the Anti Corruption Commission Act?

In other words, how will the public benefit from a law that allows public servants to acquire inexplicable property, wealth or advantage?

An averagely intelligent person would be able to answer the first question that we posed.

It is clear why the nation needed Section 37, a law which prohibited abuse of public office and also prohibited the acquisition of illicit wealth.

No disquisition is needed for the benefits that a nation derives from such a law.

It is clear that such a law preserves public property and resources from plunder by public servants.

It ensures that public servants do not turn their offices into business centres for their criminal activities calculated to defraud the state and consequently our people.

The policy justification is not a difficult one at all.

It is in the interest of the public that the behaviour of those who control our resources on our behalf should be regulated to ensure that public resources are spent on public requirements.

Although the answer to the first question that we posed is fairly straightforward, the same cannot be said about the second question.

How is the public going to benefit from a law that allows public servants to use their offices corruptly, illicitly acquire wealth and not be called to account for it?

It is clear that only criminals are going to benefit from this type of law. We say this because if people are allowed to amass inexplicable wealth, it is highly unlikely that they will then pay taxes on that illicit wealth that they acquire or that they will function in the formal economy where the general economic climate would benefit from their activities.

There can never be any meaningful public interest justification for Rupiah’s confused policy on abuse of office.

This is why we must agree with Nkole that these irrational manoeuvres by Rupiah and his minions can only be explained by the fact that they know they have done wrong things and that law is too much for them.

If we accepted their nonsensical arguments, we would have to abolish the whole criminal law and where would that lead us as a nation?