NASSAU, BAHAMAS — A Supreme Court ruling yesterday could have far-reaching implications after it was determined a voluntary bill of indictment (VBI) signed by Assistant Director of Public Prosecutions David Bakibinga was invalid.
Attorney General Ryan Pinder said he planned to meet with his team on the ruling today, adding there may be something that can be done legislatively to mitigate any impacts.
“With respect to the ruling, we’re actively taking advice,” Pinder said.
“I’m meeting with my team in the morning. it is an unfortunate consequence, something the PLP never believed with. We believe we have Bahamians who have the capacity to fill those positions and that issue has been actively looked at since coming to office. It is an unfortunate chain of events I think the Bar Council’s position is clear.”
Bakibinga, a Ugandan, and Nigerian Nikiruka Jones-Nebo were hired to top positions at the Office of the Director of Public Prosecutions in 2019 amid widespread controversy that Bahamians could have filled those roles.
The pair were appointed by the Judicial and Legal Services Commission to serve as deputy director of public prosecutions and assistant director of public prosecutions but were denied admission to the Bahamian Bar.
Bar Association President Khalil Parker previously said the Bar Council was not satisfied they met legal requirements for admission.
At the time, Attorney General Carl Bethel accused the Bahamas Bar Council of acting “politically”, telling The Tribune: “The Bar Council can act or Parliament can act.”
Speaking on condition of anonymity, one senior legal officer said: “Unfortunately if the law is being interpreted that those indictments with the respective person signatures are nullity or invalid, then you have a scenario where it’s just a natural consequence, it just follows that any other indictment that has those features is not a valid indictment.”
The official added: “Obviously it will impact matters that are before the court, matters where persons are convicted and I dare say it will impact persons who have been acquitted. If the VBI is invalid, then wouldn’t the acquittal be invalid? So you’re not just talking about convictions but acquittals as well.”
The Office of the Director of Public Prosecutions (DPP) was formed in 2017 by the passage of the Constitution (Amendment) Act 2017.
The Act amends Article 78 of the Constitution and further confers all powers relating to criminal prosecutions previously vested in the attorney general.
The legislation aimed to create an independent office to enhance the rule of law and remove political influence.
Based on the Criminal Procedure Code, only the Attorney General or a legal practitioner acting on his behalf can sign VBIs.
However, the Constitution Amendment Act 2017 stipulates the DPP can exercise its powers to institute criminal proceedings against any person directly, or through “any other person acting under or in accordance with his general or specific instructions.
He noted there is another similar case before Senior Justice Bernard Turner that was adjourned this week.
“The particular section in play is section 258 of the Criminal Procedure Code Act that particular provision says that the attorney general or a legal practitioner on his behalf shall sign the VBI,” Gaskins said.
“What we say is the AG part aside, we are now talking about the DPP, the material question is whether someone other than a legal practitioner can sign and the legal practitioner reference simply means those called to the bar.
“They (Bakibinga and Jones-Nebo) are not called to the bar but they are legal officers within the AG office appointed by the Judicial and Legal Services Commission. Lastly, Article 2 of the constitution is very clear and that article states in very striking terms that the constitution is the supreme law and if any other law is inconsistent with that, the constitution prevails and the other law becomes void.”
The written ruling is expected to be handed down in a matter of days.
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