May 18, 2010 (Page 3 Lead)
THE five persons accused of causing financial loss related to the sale of Ghana Airways (GA) and the operations of Ghana International Airline (GIA) have filed a motion praying the Financial Division of the High Court to refer their request for relevant documents on the case to the Supreme Court for interpretation.
Counsel for the accused persons moved their applications under Article 19 (2e) of the 1992 Constitution, which states that “a person charged with criminal offence shall be given adequate time and facilities for the preparation of his defence”.
But the state has opposed the application, on the grounds that sections 163 and 181 of the Criminal Procedure Code of 1960 (Act 30) does not allow accused persons who are standing trial summarily to have access to such documents.
Following the state's opposition, lawyers for Dr Richard Anane, a former Minister of Transport; Mr Kwadwo Mpiani, a former Chief of Staff and Minister for Presidential Affairs; Dr Anthony Akoto Osei, a former Minister of State at the Ministry of Finance and Economic Planning; Mr Sammy Crabbe, a former Greater Accra Regional Chairman of the New Patriotic Party (NPP), and Prof Gyan-Baffour are praying the court to refer their request for an order directed at the Attorney-General to furnish them with all documents and exhibits the prosecution intends to rely on during the trial.
According to the lawyers, Act 30 clearly contravened Article 19 (2e) of the 1992 Constitution, which they described as being "supreme to all laws of the land".
Mpiani, Dr Osei, Crabbe and Prof Gyan-Baffour were present in court. On the last adjourned date, the court granted Dr Anane permission to be absent.
The accused persons variously face 22 counts of causing financial loss to the state, defrauding by false pretences, conspiracy to deceive public officers, deceit of public officer, misappropriation of public funds, opening an offshore account without authorisation from the Bank of Ghana (BoG), conspiracy to commit stealing and stealing.
They have pleaded not guilty to the charges and the court, presided over by Mr Justice Bright Mensah, has granted them self-recognisance bail.
Moving the motion on behalf of Dr Anane, Mr Jacob Acquah-Sampson said documents, including letters, technical evaluations and reports, business plans, press releases, Cabinet memos, memoranda of understanding (MoU), shareholders’ agreement, tenancy agreements, among a host of others, were what the prosecution intended to rely on during the trial and it was important that the accused persons had access to those documents in order to have a fair trial, as enshrined under the Constitution.
Counsel argued that the Constitution compelled the Attorney-General to provide the accused persons with appropriate documents to facilitate their defence and further argued that the apparent conflict between the prosecution and the defence needed to be handled by the Supreme Court.
Mr Acquah-Sampson told the court that the issues he intended to refer to the Supreme Court were whether or not, within the plain, natural and practical meaning of Article 19 (1) and (2e) of the Constitution, an accused person in a criminal trial, whether charged summarily or by indictment, was entitled to a disclosure of copies of statements made to police by persons who would and might be called to testify as prosecution witnesses and copies of documents and exhibits which were to be offered in evidence by the prosecution before trial.
According to counsel, the prosecution's affidavit in opposition did not make any claim to having a privilege not to disclose the relevant documents to the accused persons.
Citing numerous local and international authorities, counsel submitted that the rights of the accused persons to a fair trial was a "non derogable right", adding that the oppressive and unfair procedure set out by Act 30 had been swallowed by Article 19 (1) and (2e) of the 1992 Constitution.
Mr Acquah-Sampson further submitted that the fact that nobody had questioned the obnoxious sections of Act 30 did not mean he and his colleagues could not question them at present.
Counsel for Dr Osei, Mr Atta Akyea, associated himself with Mr Acquah-Sampson's submission and described the prosecution's position as "anachronistic".
According to Mr Akyea, any law which contravened the Constitution was null and void and of no effect, adding that the matter before the court was not simple. It was, therefore, important that the court made reference to the Supreme Court for interpretation.
He said the prosecution could not run from the Constitution and hide under sections 163 and 181 of Act 30, which he described as "dinosaur legislation".
Messrs Egbert Faibille, Sam Okudzeto and Kwame Boateng, lawyers for Mpiani, Prof Gyan-Baffour and Crabbe, respectively, associated themselves with the submissions by their colleagues.
Mr Okudzeto added that every Ghanaian, irrespective of his/her political affiliation, tribe, gender, religion, among others, had a right to be protected from obnoxious laws such as sections of Act 30 which contravened the 1992 Constitution.
The Director of Public Prosecutions, Ms Gertrude Aikins, is expected to respond to the submissions by the defence lawyers on May 31, 2010.
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