Will Chief Justice Sir Salamo Injia settle the law on Powers?

by YAKAN LEKAPALI

Will Chief Justice Sir Salamo Injia settle the law on re Powers, functions, duties, and responsibilities of the Commissioner of Police?

The grant of interim stay orders by the Supreme Court instituted by Chief Justice Sir Salamo has not settled well with many frustrated citizens. This is understandable given the grave negativity with the recent incidents involving senior judges. But hold on and be patient for now.

Was the grant on the stay orders legal? In short, YES. Like other citizens, Peter O'Neill has the right to appeal as allowed by the law. Hence, among other factors, the execution of the warrant of arrest stay in the interim is in order. Without the temporary stay order, the whole purpose of the appeal could stand defeated. 

Note that the time gap between execution of the warrant by police lapsed when Police Commissioner Gari Baki delayed executing warrant of arrest on PM. Prime Minister Peter O'Neill must, therefore, thank Gari Baki for the delay. Put another way, it could have meant the Prime Minister's right to appeal be rendered futile, nugatory and hypothetical. Lawyers know that. It is that simple for even non-lawyers to understand.

In fact, the outcome of the appeal is somewhat interesting because the law is continuously evolving. We have the two contradicting Supreme Court case authorities; Wartoto v State [2015] SC1411 and In re Powers, functions, duties, and responsibilities of the Commissioner of Police [2014] SC1388.

In Wartoto v State case, the Supreme Court enumerated that it could be inappropriate or improper and/or could amount to an abuse of process for an accused person to invoke or resort to an unlimited civil jurisdiction of the National Court to raise a criminal process, procedure or substantive issue. Any issues an accused may wish to raise should be raised at the appropriate levels in the criminal proceedings.

On the other hand, in the case of In re Powers, functions, duties, and responsibilities of the Commissioner of Police, the Supreme Court held that the Commissioner of Police may challenge a warrant of arrest obtained by a member of the Police Force. The Court further pointed out three modes of challenging a warrant of arrest:

(a) by way of a notice of motion in the District Court that issued the warrant,
(b) by way of appeal in the National Court under Section 219(1) of the District Courts Act, or
(c) by way of constituting a Judicial Review proceeding in the National Court.


From reading these two Supreme Court authorities, we should appreciate that the law is not yet settled, or there are ambiguities still hanging. Through this appeal, the Supreme Court will settle this law. The outcome is so interesting, isn't it?