“Throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” – Woolmington v DPP  as quoted in The Bahamas Court of Appeal ruling.
Last week, The Bahamas Court of Appeal denied the prosecution’s application to set aside the Magistrate Court’s ruling in favor of Frank Smith, the former chairman of the Public Hospitals Authority (PHA), for his alleged involvement in corruption related to his office at the PHA.
We have long maintained that Smith’s prosecution was highly and primarily motivated by the government’s desire to portray the Progressive Liberal Party (PLP) as a corrupt party.
Therefore, this week, we would like to consider this…was the case against Smith a political prosecution and what was the real cost of this exercise?
The rush to judgment
On May 10, 2017, the Bahamian electorate rejected the PLP’s bid for re-election. There is no question about it; many Bahamians were incensed and infuriated by certain Cabinet ministers and high-level officials in the former Christie administration.
We will not rehash the reasons for the widespread antagonism that abounded against those leaders and their colleagues. Suffice it to say that, on election day, like a predator preparing to pounce upon its prey, the electorate was determined to punish the outgoing government for its shortcomings while in office, real or imagined.
Shortly after the new Free National Movement (FNM) government came to office, the Office of the Attorney General initiated several investigations and criminal prosecutions against PLP politicians, alleging that they had engaged in corrupt activities while in office. Several prominent personalities in the upper echelons of the FNM tried to discourage the authorities from proceeding down this slippery slope, but those who heard their supplications did not listen.
During Smith’s Magistrate’s Court trial, his defense team proved that the police investigating this matter tampered with and manipulated the evidence. The magistrate questioned the credibility of the Crown’s primary witness and complainant and chastised the involvement of government ministers in this matter. The magistrate determined that the Crown did not present a credible case for Smith to answer.
Last week, the Court of Appeal upheld the magistrate’s decision. More about that later.
A new era of incivility unleashed
In the wake of the actions taken by the police and the political directorate against Smith, right-thinking Bahamians from opposite poles of the political divide expressed concern about what appeared to be political witch hunts against former parliamentarians.
A teachable moment
It is worth remembering that, when the PLP first came to office after the January 10, 1967 general election, the new government obtained concrete, conclusive, corroborative confirmation regarding the corrupt practices of some of the former United Bahamian Party (UBP) Cabinet ministers.
The instances of blatant corruption were well-documented in the independent Report of the 1967 Royal Commission of Inquiry that chronicled obscenely large payments that were made to UBP ministers for their involvement in the casino industry in Grand Bahama.
At the time, there were many Bahamians who felt that those former ministers should have been prosecuted on the evidence that was presented by the Royal Commission. However, in its collective wisdom, the new PLP government decided not to initiate any prosecutions against those who were named in the commission’s report.
The Pindling administration refused to proceed along that course because it understood that it would have deflected attention and enormous public resources from the very important priorities of national development.
Court of Appeal ruling
In its judgment in the Smith case that was appealed by the Crown, the honorable justices said: “We fail to see the utility or the justice in requiring an accused person to make a case in circumstances where the trier of facts has heard the evidence on which the prosecution relies to prove its case and has concluded the witnesses who testified in support of the prosecution’s case are not credible or reliable.”
When all is said and done, the only reasonable conclusion that can be drawn from the results of this diabolical fiasco is that the prosecution of Smith was politically motivated by parties who were driven to disparage him and the political party with which he chose to identify. Those who were complicit in this sordid affair must account for their actions.
The cost of political prosecutions
There are quantitative and qualitative costs that result from political prosecutions. Firstly, the financial costs are enormous.
Although this government came to office on the promise of accountability and transparency, we may never fully fathom what this political prosecution cost the Bahamian people. The cost of the British Queen’s Counsel who the government engaged to prosecute the case undoubtedly amounted to hundreds of thousands of dollars. Add to that the cost of the local legal prosecutors, police officers and court personnel who dedicated their attention to prosecute this case and you wind up with quite a stunning amount.
Then there is the cost that Smith incurred to defend the baseless charges against him. Fortunately, he had the financial wherewithal to defend himself, a reality that is not afforded hundreds, if not thousands, of persons who are charged, sometimes falsely, by the police and unjustifiably prosecuted by the judicial system.
Then there are reputational costs associated with this travesty. The fact of the matter is that, in our system, although persons are presumed to be innocent until proven otherwise, even persons who are acquitted often bear the stigma of having been vilified by a system that unjustly accuses them of transgressions of which they are innocent.
There is equally an intensely human side that is intrinsically and integrally intertwined with this experience. There is the loss of liberty, the disgrace of being unjustly charged and prosecuted and the enormous loss of time that is devoted to defending oneself instead of living one’s life, free of such provocations, distractions and interrogations.
Then there is the terrible teasing and taunting of innocent children and family members and the scurrilous rumors and vicious lies that one is subjected to because of the unwarranted and unjustified, trumped up charges. This very often leaves deep wounds for many years and in many ways that are neither readily identifiable nor quantifiable.
There is a further, more imperceptible cost associated with such activities: the cost of discouraging and dissuading suitably qualified, well-intended persons from entering public life for fear of callous and corrupt insinuations and innuendos by uncaring, small-minded minions in our society and the political directorate. The innumerable costs of ill-founded and baseless political prosecutions are as long-lasting as they are incalculable.
The early days of the Minnis administration unleashed an era of incivility that is unprecedented in recent Bahamian history and, if not quickly contained, could result in irreparable and irreversible damage to our national and social fabric.
We are a small nation where so many of us are connected and related to each other. It is therefore essential that we treat each other with respect. We must avoid the natural inclination of rushing to judgment, an action that could have long-lasting, residual ramifications both to those erroneously or hastily charged and to their families.
Finally, we must all be ever vigilant and aggressively challenge those who would attempt to abuse their authority through intimidation or threats of persecution. Corruption and abuse of power demean, damage and depreciate our national foundation and our democratic institutions.
We must, therefore, nurture the national framework and jealously protect those democratic institutions. If we do not and these precious Bahamian institutions are abandoned to persons who will abuse them for their own selfish purposes and personal agendas, it will create a Bahamas we would neither recognize nor want for our children and the generations to come.
• Philip C. Galanis is the managing partner of HLB Galanis and Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to email@example.com.