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SC Rescues NCA Gang

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The Supreme Court has unanimously granted the application for disclosure filed by lawyers in the trial of Eugene Baffoe Bonnie, former Board Chairman of the National Communications Authority, (NCA) and four others for causing financial loss to the State.

The court, presided over by Justice William Atuguba, held that pre-trial disclosure was crucial but not absolute.

According to the court, accused persons were entitled to all prosecution witness statements even if the statements would not be tendered in court.

Ruling

The court, however, stated that the disclosures were subject to certain conditions such as its relevance, the public good, state security, among others.

The court further posited that failure by the prosecution to disclose its document among others does not in its essence nullify a trial

The decision, read by Justice Sophia Adinyira, explained 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.

In the view of the court, a trial cannot be said to be fair and just if the prosecution was allowed to keep documents to its chest for the purposes of securing a conviction, indicating that it is contrary to the dictates of the 1992 Constitution

Justice Adinyira stated that non-disclosure is a potent source of injustice and that an accused person’s right to fair trial takes precedence over an individual’s right of privacy.

The apex court argued that the current restrictions in Ghana’s laws impede justice delivery.

The trial of former NCA Board Chairman, Eugene Baffuor-Bonnie, and four others, charged with causing financial loss to the state, suffered an indefinite adjournment in February this year in order for the Apex court take a decision on the matter.

Baffoe Bonnie and four others are before an Accra High Court over an alleged $4m financial loss to the state.

They are William Tevie, former Chief Executive Officer, NCA; Nana Owusu Ensaw; Alhaji Salif Mimina Osman, former Deputy National Security Coordinator and George Derrek Oppong, a private businessman, and Director of IDL facing 17 charges such as conspiracy to steal, stealing, using public office for profit, money laundering, among others.

Charges

According to the prosecution, the accused persons are being tried for allegedly causing financial loss to the State to the tune of $4 million under the guise of procuring a Cyber Surveillance System which they claimed were to be used for anti-terrorism activities in the country.

The five in January this year filed a motion at the high court and succeeded in staying proceedings in the case.

Lawyers for the accused persons wanted the matter refereed to the Supreme Court for interpretation, following a motion seeking an order of the court compelling the Attorney-General to disclose to them all documents they intended to rely on in the trial.

The Defense lawyers were also seeking to compel the Attorney Generals Department to disclose to them all documents the prosecution intended to rely on throughout the trial, as well as a comprehensive list of all prosecution witnesses.

Stay

The court, presided over by Justice Eric Kyei Baffour, in a ruling 8on February 1, 2018 held that it had no authority to interpret the portions of the 1992 constitution which had arisen in the trial.

In the view of the court the interpretation of the constitution was within the jurisdiction of the Supreme Court.

Justice Kyei Baffour contended that rival interpretations have been placed on the meaning and the extent of pre-trial disclosures.

The commercial court judge said the prosecution itself admits that a question of interpretation arises in respect of article 19(2)(e) in relation to whether prosecution must furnish them with police witness statements, summary of evidence and documents to be relied on by prosecution.

The court however wants the apex court to answer whether on a true and proper interpretation and/or construction of article 19(2)(e)(g) an accused person in a summary trial conducted in accordance with Part III of the Criminal and Other Offences Procedure Act, Act 30, was entitled to comprehensive pre-trial disclosures as the accused persons have argued.

Justice Kyei Baffour also wants the Court to show at what point prosecution should make the disclosures available to the accused person in view of the fact that summary trial may commence within 48 hours upon arrest and charges being proffered against the accused whether an accused in a summary trial was entitled to full disclosure of documents in the possession of prosecution that would not even be tendered by the prosecution as exhibits before a trial court.

By: Jeffrey De-Graft Johnson

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