Ordered To Release Documents Opuni & Others
The Supreme Court, has ordered the Attorney-General, Gloria Akuffo, to hand over all documents to former top officials of the National Communications Authority (NCA) and a businessman, standing trial for causing financial loss to the state.
Former COCOBOD Chief Executive Officer (CEO) Dr. Stephen Opuni and Seidu Agongo, who are also standing trial in a separate case, are also beneficiaries of the unanimous decision by the seven-member Supreme Court panel presided by Justice William Atuguba.
The disclosure of all pre-trial documents the prosecution intends to rely on in prosecuting the former NCA officials and Dr. Opuni and Seidu Agongo, will prevent ambush trials and miscarriage of justice as the ex-former government officials, will prepare adequately to defend themselves by responding to the issues raised against them.
The Court also gave the AG the discretion to hold on to some documents on the basis of relevance and public interest. This discretion will, however, be subject to a review by the trial judge hearing the case or the Supreme Court.
The question of whether or not suspects are legally entitled to documents the state intends to rely on in prosecuting them forced the two high profile cases – one involving Dr. Stephen Opuni, and another, involving four former NCA officials and a businessman, both at an Accra High court – to be put on hold as the AG and defense lawyers, disagreed on which documents should be made available.
The trial of former NCA Board Chairman, Eugene Baffuor-Bonnie and four others, charged with causing financial loss to the state, also suffered an indefinite adjournment for the Apex court to take a decision on the matter.
Defence attorneys, had argued Article 19 of the Constitution allowed an accused person to be afforded all facilities to put up his defence (including the list of witnesses and all relevant documents to be used and as well as those prosecutors do not intend to rely on).
The lawyers maintained the A-G, was constitutionally obligated to furnish all the suspects with all the documents – whether the state would use them or not – relating to the cases against their clients.
A-G, Ms. Akuffo, argued she was not prepared to hand over all documents the state would be relying on, but contested the demand for all documents, be they relevant or not. She said there was no law grounding their demand and that she was being magnanimous by offering to give them relevant documents.
Dissatisfied with the A-G’s position, the suspects and their lawyers, proceeded to the Supreme Court for a Constitutional interpretation, forcing the lower court to suspend hearing into the criminal cases against the former government officials.
The Supreme Court in its decision read by Justice Sophia Adinyira, yesterday, stated that the current restrictions in Ghana’s laws, impede justice delivery.
The Court, therefore, ordered that all documents be handed over to the suspects and their lawyers, except where there is a justification not to.
Deputy A-G, Godfred Yeboah Dame, said he was satisfied with the decision, because it chimed perfectly with what the state’s argument had been.
Now the lower court, can resume hearing of the substantive cases.
Eugene Baffoe-Bonnie, William Tetteh Tevie, a former Director General of the NCA; Nana Owusu Ensaw, a former board member of the NCA; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator, and George Oppong, a private businessman are standing trial for causing financial loss to the state.
The Supreme Court, explained that, in the case of civil trials, the element of surprise is completely removed, because applicants and respondents are given the opportunity to have access to all documents to be used in the case by both sides.
However, in criminal trials, the element of surprise, still exist as there is no obligation on the part of the prosecution to give to the accused persons all documents they intend to rely on and it is improper.
The court, however, added that the duty of the Prosecution to carry out pre-trial disclosures is not an absolute right of the accused person as any attempt to make pre-trial disclosure absolute could compromise the security of witnesses, investigators, prosecutors and other interested parties in a criminal trial. The right to Pre-trial disclosure should therefore be subject to the relevance of same as well as the dictates of the principle of privilege.
On February 1, 2018, the Commercial High Court, presided over by Mr. Justice Eric Kyei-Baffour, suspended proceedings of the trial and referred a constitutional issue raised by the accused persons to the Supreme Court for interpretation.
Counsel for Baffoe-Bonnie and Oppong, filed an application seeking the Supreme Court to interpret the true and proper meaning of Article 19 (2) (e) and (g) of the 1992 Constitution which borders on the right to a fair trial.
The lawyers, had argued that per Article 19 (2) (e) and (g), their clients were entitled to all the documents the prosecution intended to rely on in the trial, which began on January 16, 2018.
All the accused persons have pleaded not guilty to various counts of causing financial loss of $4 million to the state.
The High Court had granted each accused person a $1-million bail, with three sureties, and directed them to surrender their passports to the registrar of the court.
According to the facts of the case, as presented by the A-G, Baffoe-Bonnie, Tevie, Ensaw and Osman were allegedly aided by Oppong to engage in the criminal act.
It said the previous administration had contracted an Israeli company, NSO Group Technology Limited, to supply a listening equipment at a cost of $6 million to enable the authorities to monitor conversations of persons suspected to be engaged in terror activities.
A local agent, Infraloks Development Limited, charged $2 million to facilitate the transaction, bringing the total sum to $8 million. The facts explained that the National Security did not have the money to fund the transaction and for that reason the NCA, which had supervisory jurisdiction over the use of such equipment, was asked to fund the project.
It said $4 million was withdrawn from the NCA’s account, while $1 million out of the withdrawn amount was deposited into the account of the Israeli company.
The A-G explained that the remaining $3 million was lodged in the account of Oppong, who acted as a representative of the local agents, Infraloks Development Ltd.
Dr. Opuni who is standing trial alongside private businessman, Seidu Agongo of Agricult Ghana Ltd.
They face 27 charges of causing financial loss to the state, conspiracy to commit crime, defrauding by false pretence, abetment of crime, amongst others. They denied the claims by the Akufo-Addo government against them.
Baffoe-Bonnie, Tevie, Ensaw, Oppong and Osman, have also denied engaging in any criminal act.
Both cases according to the opposition NDC, are political persecutions by the Akufo-Addo government to prove a point that the Mahama administration, was corrupt as claimed before and during the 2016 election year.