Ghana @ 50 Ruling, State Appeals Against Mpiani, Wereko-Brobbey

Tuesday, July 5,2011 (Lead Story)

HEARING of the state’s appeal against the acquittal and discharge of a former Chief of Staff, Mr Kwadwo Okyere Mpiani, and Dr Charles Wereko-Brobby, of all charges of wilfully causing financial loss to the state began at the Court of Appeal yesterday.

The case was, however, adjourned indefinitely because Mr Mpiani had not been served with the appeal process filed by the state.
Consequently, the court directed its registrar to serve appeal processes on Mr Kwadwo Okyere Mpiani.

The two former officials of the defunct Ghana@50 Secretariat were discharged by the Accra Fast Track High Court on August 11, 2010 on the grounds that due process was not followed to warrant their prosecution.

Dissatisfied with their discharge, the state filed an appeal but it emerged at the Court of Appeal’s sitting in Accra yesterday that Mr Mpiani had not been served with the appeal process.

Dr Wereko-Brobby has, however, been served with the appeal process.

Counsel for Dr Wereko-Brobby, Mr Akoto Ampaw, drew the court’s attention to the fact that Mr Mpiani had not been served with the appeal process.

He, therefore, stated that it was important that the issue was resolved before hearing of the appeal could proceed.

Following counsel’s submission, the court, presided over by Mr Justice S.E. Canyon, with Mr Justice K. N. Aduama Osei and Mr Justice Dennis Adjei as the other members, accordingly directed the registrar of the court to serve Mr Mpiani with the relevant documents on the case.

A new date is yet to be fixed for the hearing of the substantive appeal.

Among the grounds of appeal filed by the state are that the trial judge erred in law when he concluded that before adverse findings or reports were deemed to be judgements of the High Court, the constitutional arrangements under Article 280 of the 1992 Constitution precluded the Attorney-General from initiating prosecution against persons affected adversely by the findings or reports of commissions of inquiry, whose conclusion was clearly a gross misdirection on the powers of the Attorney-General under Article 88 of the 1992 Constitution.

It said the judge, having confused himself on the issues as to ‘public inquiries developing into criminal trials’ and ‘public inquiries forming the basis of criminal trials’, erroneously concluded that the prosecutions in the High Court of persons against whom adverse findings were made by the commissions established under Constitutional Instrument (C.I) 36 of 2002 were in contravention of Article 280 of the 1992 Constitution.

The trial judge, it said, having misinformed himself that all persons who appeared before the Ghana@50 Commission of Inquiry were called as witnesses, failed to appreciate the legal distinction between a person called by a commission of inquiry ‘as a subject of inquiry or as having been in anyway implicated/concerned in the matter under inquiry’ and ‘as witness’ under Article 282 and 283 of the 1992 Constitution respectively, and thereby came to the wrong conclusion that the respondents were compellable witnesses whose incriminatory evidence was not used in any criminal or civil proceedings against them under Section 10 of C.I 61, rather than finding that the respondents were either subjects of inquiry or persons who were otherwise implicated/concerned in the matter before the Ghana@50 Inquiry within the meaning of Article 282 of the 1992 Constitution and on the strength of the evidence before him.

It said the trial judge misinformed himself on the import of Sections 8 and 9 of the Commission of Inquiry (Ghana@50) Instrument, 2009 (C.I 61) of 2009 relating to privilege, indemnity and immunities of persons appearing before the commission when he held that the criminal proceedings subsequently instituted against the respondents at the High Court after the commission’s work were wrong in law.

Dr Wereko-Brobby, also known as Tarzan, the former Chief Executive Officer of Ghana@50 Secretariat, and Mr Mpiani, Chairman of the National Planning Committee (NPC) for Ghana@50, were charged with four counts of wilfully causing financial loss to the state.

They pleaded not guilty and were each admitted to GH¢35 million on their own recognisance bail.

A Court of Appeal judge with additional responsibility as a High Court judge, Mr Justice Samuel Marful-Sau, in his ruling, upheld the motion of the defence that under Article 280 of the 1992 Constitution, the accused persons were entitled to an appeal at the Court of Appeal because the Ghana @50 Commission of Inquiry which recommended the prosecution of the two had the powers of the High Court.

According to the court, although the law mandated the Attorney-General (A-G) to prosecute, the A-G must ensure that due process of the law was adhered to, adding that the arguments put forward by the prosecution that the accused persons misappropriated Ghana @50 property at Trassaco Valley were not part of the charges before the court.

It said Article 282 (61)(2a) and (62) of the Constitution made it unlawful for the prosecution to charge the accused persons who appeared before the Commission of Enquiry as witnesses with any criminal offence.

It accordingly advised that any time the state wanted to prosecute people considered to have misappropriated state resources, it could resort to other investigative agencies and not a Commission of Enquiry.

The facts of the case were that Parliament approved $31.80 million, equivalent to GH¢29.31 million, for the celebration of Ghana@50 from January to December 2007 and the holding of the African Union Summit.

The prosecution said the amount was made up of a first tranche of GH¢18.29 million, which was approved by Parliament on July 20, 2006, and a second tranche, which was a loan of GH¢11.02 million, contracted from the Fidelity Bank and approved by Parliament.

It said aside from those sums approved by Parliament, huge sums of money appeared to have been spent on the celebrations, adding that more than a year after the celebrations, many projects remained uncompleted and the government was saddled with huge debts.

The prosecution said it was against that background that the Commission of Enquiry was set up by President John Evans Atta Mills into activities of Ghana@50 Secretariat and the entire celebration.

According to the prosecution, the Commission found out that although Parliament had approved GH¢29.31 million for the celebration, GH¢97,776,338.44 was spent on it, out of which GH¢75,569,563.34 was directly spent by the Secretariat and the NPC.

The Secretariat and NPC, therefore, spent about GH¢46,999,563 in excess of the amount approved by Parliament for the celebration, the prosecution said.

It further stated that the Commission of Enquiry also found out that contrary to Articles 176 and 178 of the 1992 Constitution, the Secretariat and NPC used all the internally generated funds, totalling GH¢19,352,498.00, without approval from Parliament.