The purpose of this blog is to see when selective investigation and persecution is legitimate and when it becomes in contravention with the rule of law and order.
I must confess at the outset that I am neither a political scientist nor a lawyer. Nonetheless, that does not stop me from jumping into matters legal and political with both eyes wide open. Recognizing my handicap in matters legal, I will use hypothetical legal cases to address basic normative principles from a laywoman’s perspectives.
Let us assume a fictional country called Dystopia governed by a political entity called WEYALIE (ወያሌ) and a government-owned conglomerate called MYSTAKE. Assume further for the sake of argument that MYSTAKE was managed by five executives.
Let us assume also that a new government came to power and suspected egregious corruption bordering on a highway robbery in MYSTAKE and arrested the five top executives, four of whom happened to be political associates of WEYALIE.
Now the question is can the four associates of WEYALIE allege politically motivated selective persecution against them? The only way they can use the selective prosecution defense is if they can provide prima facie evidence that the government prosecuted only the four of them, but arbitrarily exempted the other executive who was not associated with WEYALIE.
To add a contentious layer to an already contentious legal wrangling, assume that the new government started to investigate another conglomerate called DEFFRET whose business dealings are intertwined with MYSTAKE. Lo and behold, assume also that all the founders and executives of DEFFRET happened to be closely tied with WEYALIE and the executives of MYSTAKE.
Now the question is: Can DEFFRET’s executives use politically motivated selective persecution as a legal defense, using their association with WEYALIE and citing that 100 percent of the accused are WEYALIE associates? The answer is simple. If you governed and stole alone, you shall be prosecuted alone.
In any country including Dystopia, people break the law in big ways and small. People engage in a host of criminal activities, including peeing in public, shoplifting, using government vehicles for personal use, and abusing their government positions to wipe their country clean of its resources.
Prosecutors, by the very nature of their profession, are doomed to be selective, because they have limited resources (financial and professional) to go after an infinite number of criminals small and large. They have no alternative but to prioritize some suspected criminals over others. For example, corrupt officials are given priority over shoplifters. Similarly, public officials who are suspected of embezzling billions get priority over those who stole a couple of government cars and three dozen laptops.
If one group of friends and political associates engaged themselves in high crimes and misdemeanors such as invading the political market and through it monopolizing public and private enterprises and sucking them dry, it is their crimes that make them targets, not their political affiliation. The best legal strategy for them is to defend themselves that they are innocent, rather than engaging in a futile effort to muddy the law cloaking it with political smog.
They are best served to know that selective prosecution is widely practiced in democratic countries. In the US, the Supreme Court has rejected the selective prosecution defense “based in part upon the potential deterrent effect on others.”
In other words, if the Prosecutor believes that selectively going after a particular class of criminal activity will help to deter others from committing similar crimes, that, in and of itself, constitutes a legitimate ground to exercise his discretionary authority to go after such cases.
How about the Board of Directors who did not stop the alleged criminal activities? How about former members of the executive branch of Dystopia who knew that the alleged high crimes and misdemeanors were being committed with impunity? Why not go after them first?
Common sense would suggest that the Prosecutor must first go after the suspected criminals. He cannot go after the Board of Governors before he established under the law that high crimes and misdemeanors have been committed on their watch. If he successfully proves his allegations against the executives of MISTAKE and DEFFRET and holds them accountable, then he can investigate if the Board of Directors are liable for dereliction of duty, in their statutory function to protect the public interest.
In making this decision, the prosecutor will consider if there were mitigating factors. Can it be proven that the Board of Directors of MISTAKE and DEFFRET knew or should have known that crime was being committed over an extended period? Were there other mitigating circumstances such as fear of political retribution. Prosecutors of organized crimes are cognizant of the fact that such crimes are often aided and abetted by political forces who will not hesitate to squash dissenting voices.
If by a deliberate demographic design a certain group of people congregated around large conglomerates such as MISTAKE and DEFFRET and engaged themselves in high crimes and misdemeanors, they will have no legal ground to stand on to use the selective prosecution defense.
Put in the vernacular, if a certain group of political forces use the police and the court system as oppressive tools and use them to enrich themselves and victimize those who challenged them, then when judgment day comes those certain group of people will by necessity populate Dystopia’s prisons. This is not political prosecution or persecution. It is Karma ending in legal victory. It the rule of law sweetened with creamy and delicious karma sauce.
Koki Abesolome (Ph.D.) is a freelance blogger. Her blogs are posted on her Facebook https://www.facebook.com/koki.abesolome.3