Tuesday, July 24, 2012

Cameroon: Marafa Expected simultaneously in two courts this morning!

In one court, for hearing on embezzlement case and in the other for defamation lawsuit filed by  John Fru Ndi and the SDF

By Christopher Ambe
The embezzlement case pitting Marafa Hamidou Yaya and the people of Cameroon, which started last July 16 but was adjourned to today July 24 for trial, will be heard this morning.

 Marafa Hamidou Yaya, ex- SG at the Presidency of the Republic and former Minister of Territorial Administration, with others, is being prosecuted  in Mfoundi High Court Yaoundé for alleged  embezzlement of funds meant for the purchase  in 2003 of a Presidential plane for Cameroon 

But surprisingly, Mr.Marafa has also been summoned to appear this morning before the State Counsel of the Court of Frist Instance in Yaoundé “in order to be heard in connection with a law suit filed by the Social Democratic Front and John Fru Ndi against Marafa four years ago”, US-trained lawyer, Professor Ndiva Kofele Kale, Counsel for Marafa told reporters on Sunday in Buea.

 Following are two quick observations made by Professor kale on what he terms the latest assault on Mr.Marafa’s rights as a free citizen of Cameroon:
**  1st the Govt wants to embarrass my party, the SDF, and its Nat’l Chairman, by trying to use them as a Trojan horse to penetrate Marafa’s ‘defense perimeter’ in order to neutralize him. But the Chairman is no dupe: John Fru Ndi is one of the most experienced and seasoned political leaders in this country and no one, especially not this Govt., is going to take him for a ride!

**  2nd after failing to subdue Marafa through the contrived lawsuit filed by the convicted murderer, Bissong, some 3 weeks ago and defended by a Govt lawyer, it is now clear to any doubting Thomas that this Govt is determined to do everything within its power, even subverting its own laws, to keep Mr. Marafa behind bars!!    
Let’s leave everything in the hands of the Cameroonian people, for it is they who will deliver the final verdict!”
Concerning the embezzlement case, Professor Kale told the press that the Marafa defense was only handed an incomplete casefile barely four days ago. Below is Professor’s press statement on Sunday:

Marafa’s Defense Asks for Equality-of-Arms between the Parties: A Press Statement

 “Following their arraignment in the Mfoundi High Court, on Monday, July 16, a certain well known media organ, relying on the assurances given by the presiding judge, hurriedly announced to the Cameroonian public that copies of the case file in The People of Cameroon v Marafa Hamidou Yaya, Yves Michel Fotso et al. were already in the possession of the defendants. That announcement was premature because it was not until the late afternoon of Thursday, July 19 that an incomplete case file was delivered to the defendants. 

Less than two weeks ago, President Paul Biya, in response to a question put to him by a CRTV reporter, declared his complete confidence in our courts and promised to respect their verdict. When our Supreme Magistrate made this declaration, had he in mind the Mebara case where the accused was acquitted of several of the charges against him but is still being detained at the Yaounde Central Prison because the State Counsel chose to flee rather than sign the order releasing him? Or did the head of state’s confidence in our system of justice extend to the recent handling of the Titus Edzoa and Thierry Atangana file? It will be recalled that after 3 years of hearings in the Mfoundi High Court, on the day judgment was to be delivered, one of the three judges on the panel was suddenly transferred to a new duty post.

Would the treatment of the Marafa, Yves Michel Fotso and Nkounda Julienne case elicit presidential endorsement?  Informed in court on Monday, July 16 that their trial would begin on Tuesday, July 24, and that the record of the preliminary investigation was ready and copies would be made available to them, these defendants reluctantly accepted to prepare their legal defense in this short interval! The defendants would be served with the promised case file days later. But it was an incomplete file: the Examining Magistrate having conceded back in June that it would take the Chief Registrar about four months to assemble it!

It would be extremely difficult for the defendants to mount an effective defense without full access to the case file. We harp on this point because economic crime cases generally turn on documentary evidence. A paper trail must be established to demonstrate the movement of the misappropriated funds from the public treasury into the private account(s) of the accused. The defense is therefore within its rights in demanding access to the documents the State plans to rely on to establish the nexus between the accused and the purloined funds. Seven days, now reduced to four, to review a case file it took the State several months to assemble, which the defendants were seeing for the first time only a few days ago, do not afford the accused sufficient time to prepare an adequate defense in a case of this order!

Be careful what you wish for, an old proverb warns, as it may come true! For months Marafa and Fotso have been asking for their day in court to tell the truth, the whole truth concerning the abortive purchase of a mind-blowing $72 million Boeing Business jet aircraft for President Paul Biya. Now that the opportunity has presented itself, why are they still complaining? Their objections have nothing to do with their willingness to face their accusers but at the unseemly haste they are being dragged to court, without the slightest regard for their constitutionally-protected due process rights. They complain not because they are afraid to spend time in jail but because they are being forced to play on a playing field that is far from level. Not even Muhammad Ali, reputed to be the greatest professional boxer of all time, would have volunteered to step in a ring blindfolded to defend his championship belt against a Joe Frazier or a George Foreman! But this is precisely what Messrs Marafa and Fotso are being asked to do: to appear in court in a matter of days without having reviewed material information critical in preparing their defense! This violates all the rules of fair play inherent in our adversarial system of justice.

Members of the Press, a criminal trial in a democratic society, which Cameroon claims to be, should not be reduced to a medieval inquisition. After all, even those accused of a crime enjoy rights that must be protected. Foremost among which is the right to a fair hearing, guaranteed in our Constitution. Implicit in this right is the principle of “equality-of-arms” (egalité des armes) between the parties. The United Nations Human Rights Committee, the judicial body charged with monitoring State compliance with the International Covenant on Civil and Political Rights, has stated that a fair hearing requires that the Prosecution and the Defense be treated in a manner ensuring (a) that they have a procedurally equal position throughout the course of the trial, and (b) are in an equal position to make their case.

Equality of arms requires that the prosecution as well as the accused is afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis-à-vis the opposing party. This is particularly important in criminal trials where the prosecution has all the machinery of the State behind it. It is in situations such as these that the principle of equality of arms takes on importance as an essential guarantee of the right to defend oneself. It ensures that the defense has a reasonable opportunity to prepare and present its case on a footing equal to that of the prosecution. Each side must be given adequate time and facilities to prepare a defense, including disclosure by the prosecution of material information. The State of Cameroon has not respected these safeguards in its case against Marafa et al. The defendants have not only been kept in the dark with respect to material information in the State’s custody but have been given less than a week to prepare their defense. This can hardly be considered adequate time especially in a case with such national significance. 

Let us not forget that Mr. Marafa’s stake in this trial is of immense importance, both because of the possibility that if found guilty he may lose his liberty for a long time and because of the certainty that he and members of his family would be forever stigmatized by the conviction. Respect for human dignity makes it incumbent on any competent court to establish with moral certainty an accused person’s guilt before punishment is inflicted. It is equally incumbent on the criminal process to proceed with extreme caution when prosecuting persons accused of any crime much less the one Messrs Marafa and Fotso have been accused of-- misappropriation of funds belonging to the people of Cameroon.

Members of the Press, we believe that the Cameroonian people, on whose behalf this trial is being conducted, have an interest in making sure that their system of criminal justice functions properly on the basis of internationally-recognized judicial principles.  It is also in their collective interest to make sure that the conviction and punishment of Mr. Marafa and the other accused persons follow from evidence which leaves no doubt as to their guilt. Without this assurance there is a reasonable possibility that innocent compatriots may end up being punished for a crime they did not commit!

Professor Ndiva Kofele Kale, Esq.,

Counsel for Marafa Hamidou Yaya ”

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