<<Print>>

Former President Rawlings screamed on an occasion out of frustration that �The law is an ass.� This was when the courts acquitted officials of a previous regime he considered corrupt. The statement means the law can miss the truth, free the guilty and jail the innocent. Charles Dickens reportedly first made that statement in his Oliver Twist character, Mr Bumble, when he was informed that "the law supposes that your wife acts under your direction". Mr. Bumble responded: "If the law supposes that ... the law is a (sic) ass�a idiot.�� In the famous case of page 28 involving the late Justice Abban, the Supreme Court ruled along a line people perceived as ignoring the truth. The current Speaker of Parliament, then sitting at the Supreme Court, said �truth does not matter.� This irritated a section of the public. But she was right. Mr Balado-Manu had occasion to remind the Speaker when she was being appointed as such, that �if truth does not matter at the bench it does matter in parliament.� He was also right. In the case of Maybee and Johnson, the defendants argued that though they were public officials at the time of the alleged offence, they could not be investigated while they were out of public office. The courts upheld that. A court has just quickly freed a suspected cocaine trafficker when the cocaine allegedly tested as washing soda though it had earlier tested cocaine. A jury in the United States recently delivered a �not guilty verdict� in a murder trial of Casey Anthony who allegedly killed her own daughter. The public was outraged at the verdict. Prominent US attorneys said Casey�s acquittal �does not mean she is innocent but that there is not enough evidence to convict her�. Casey�s Criminal Defence Attorney said �this is not about justice, nor even about truth; it is about admissible evidence�. He went on further to state that �if you want truth go to the scientist, if you want justice go to the philosophers, if you come to the law it is admissible evidence�. Meanwhile Troy Davis, also of US, has been executed on conviction of murder though he maintained his innocence and the adversarial witnesses actually retracted their evidence outside the court. The law in reality seeks to establish justice through uncovering the truth about an event, supported exclusively by evidence. Truth is therefore proxy for justice. However, truth is itself elusive. We recall the age old question of Pontius Pilate at the trial of Jesus when the former asked �what is truth?� That question is still perplexing and philosophers continue to grapple with it. Truth simply is the reality as it is, but more complex than that is: how do we know reality? Truth (reality) cannot be known directly except through proxy. Truth is indirectly accessed through knowledge; we move from what we know to what is the reality. That brings another fundamental question of how do we know what we know, and how do we confirm that to be true? That is epistemology or the theory of knowledge. We know and confirm knowledge from four methods: adoption (learning from teachers, parents, peers, books, elders, others, etc); sense perception (experience and experimentation); reasoning or rationalisation (including abstract thinking); and intuition (flashes of thought or serendipity, strong inner urge and revelatory knowledge as in dreams and visions). The law courts use the first three approaches � what can be seen or felt (evidence), reasoned (deductions and inferences) and what we can compare with previous ruling (precedent in the common law system) - yet these alone without the fourth method (intuition) may not always produce the truth. Thus, the pathway from law to justice is: facts as evidence, to knowledge, to truth, to justice - a really tortuous pathway which could have a hitch. Truth (even assuming it is the same as knowledge) reveals itself through its manifestation as evidence and facts. Thus, when we want to know what happened in an event, we gather the facts thereof as evidence and piece them together to get the picture of the truth. The fundamental assumption is that all the facts necessary to reveal the truth will be available to us. In reality, however, we may not always get all the facts and we often fill the void through conjectures and inferences. That is where the danger lies. Because we hope to get to truth through evidence, we tend to be obsessed with evidence to the detriment of the truth. Absolute incontrovertible truth would be known only if we had infinite knowledge for infinite amount of evidence. Yet we are finite beings who cannot have access to infinite knowledge. Thus, absolute truth will always be elusive. What at any time we hope to attain is, therefore, the relative truth based on available admissible evidence. Even if we were presented with facts as evidence we would need to fit the jigsaw and interpret. Thus, our ability to move from evidence to truth depends on availability of all or sufficient numbers of the facts as evidence, quality of the evidence and ability to piece the facts together appropriately and interpret them properly. That also means the ability of the person interpreting, his wits, mental acuity and sharpness, previous experience and knowledge, intelligence, prejudices and other such personal attributes. T hat also depends on the other person�s ability to debunk these arguments you put across. A case may thus be won not because it is true but because the lawyer representing the case may be smarter than the other, or due to the attributes of the presiding judge or jury and also the quality of the witnesses on either side. Evidence itself is not truth but proxy for truth, hence, the courts seek evidence as eventual proxy for justice. But admissible evidence may not always be available, and when available, may not lead to truth. For example, if I kill and nobody sees me, there may be no evidence. Yet we tend to lose focus as we concentrate on evidence per se even if it leads us away from the truth. Since evidence is accessible and verifiable, it brings in technicality as to whether the evidence is sufficient, reliable, credible, related to the issues at stake and, in summary, is admissible. So, again, while using evidence as proxy and technicality to establish the quality of evidence, we end up being consumed in the technicality itself leaving the evidence and even worse, the truth, though admittedly, technicalities are a means of auditing and validating the quality and admissibility of the evidence. From above, while the ultimate concern is the truth, the immediate and more practical concern is admissible evidence. The law, thus, is more interested in evidence than the truth, in the hope that truth will be a vicarious beneficiary of evidence. That is why courts always say: �based on the evidence before us� and hence �truth does not matter�. And that is why at the court of appeal, no new evidence is entertained for the appeal is to examine the evidence that was used. It is because of these issues that the law tends to be an ass as it follows the evidence robotically. The law says you must remove �all reasonable doubts,� and this becomes problematic if you have a Rene Descartes or a doubting Thomas on the jury because he can always doubt your evidence. That is the complexity the law finds itself - establishing justice through three proxies, the proxy of truth for justice, of knowledge for truth and of facts as evidence for knowledge, with facts and technicality taking the centre stage in law. Legal justice is hence different from natural justice. Gloria Steinem, a prominent US journalist and gender activist, was right when she said �Law and justice are not always the same.� A popular story says a man was charged for stealing �five-five� cigarette. When the prosecutor tendered in the exhibit, the defence lawyer realised the inscription on it was �555� and not �55�. He argued on that basis and got his client acquitted. We recall the infamous case of Suarez and the �hand of the devil� in the 2010 football World Cup match between Uruguay and Ghana at the quarter finals stage. The evidence is that the ball did not cross the line hence it could not have been a goal. The truth, however, is that the ball was goal-bound and, therefore, virtually a goal. Natural justice would have given it a goal but football legal justice declared it as no goal. Ghana was denied a semi-final berth. On August 27, 2010, there was news that a royal python which had been terrorising citizens near Weija had been killed by residents. The python was said to have bitten and killed a dog. The dog�s owner ran away. The next day, the dead dog disappeared, believed to have been swallowed by the python. A week later, the residents searched for, found and killed the python. In the preceding few weeks, many goats and dogs had been missing and now they believed this python was the culprit. My immediate reaction was that if the python had a brother to pursue the case in court, the python could have won. Did they see the python swallow the dog? Where is the evidence? Why do they associate the previous missing goats and dogs to a swallow? Even if a python swallowed them, what shows this was the python? Even if we establish that this python swallowed the current one, why do we link the previous ones to this python? Too many gaps to erase any �reasonable doubts� � the defence counsel could have contended. The law says it is better to release ninety-nine guilty persons than to jail one innocent soul. Lawyer Appiah Menka �Apino�, in his autobiography and on a national television (so it is public knowledge), has confessed how he managed to win a case through concocted evidence though the truth was a different matter. He said he got his client who had killed a person to slash himself with a machete to simulate an attack so that he could fall on the plea of �self-defence�. He won. He used the loophole of evidence which he cooked. That is why some lawyers will coach their clients on how to answer questions, and will object to some questions during cross-examination. So the law truly is an ass. Next time you lose a case you believe you should have won, or win a case you knew you were guilty, know that the law is an ass, for law and justice are not always the same and truth does not matter in law.