At the end of the delivery of his Judgment in the case of the Republic versus Eugene Baffoe-Bonnie and four others, thereafter called the (The NCA Case), Court of Appeal judge sitting with additional responsibility as a High Court Judge, Justice Eric Kyei Baffour, could not but make recommendations on the way and manner we go about criminal prosecution as a country. Indeed, the specific suit of the Republic versus Eugene Baffoe-Bonnie and four others which took about two and a half years to adjudicate formed the basis for the recommendations of the learned judge. I had the privilege of being in Justice Kyei Baffour’s Court from the first day the accused persons were arraigned till the day the Court delivered its decision.
For the purposes my argument, it will be necessary to review the NCA Case. The trial of the five accused persons, Eugene Baffoe-Bonnie, the former Board Chair of the National Communication Authority (NCA); William Matthew Tetteh Tevie, former Director-General of the NCA; Nana Owusu Ensaw, a former board member; Alhaji Salifu Mimina Osman, a former Deputy National Security Coordinator, and a businessman, George Derek Oppong, begun on the 16th of January 2018 when the state called its first prosecution witness, the Director of Legal Administration at the National Communications Authority (NCA), Abena Awarkoa Asafo Adjei, and ended on the 10th of March 2020 after the state, led by the Director of Public Prosecution, (DPP) Yvonne Atakora Obuabisa, concluded her cross-examination of the 5th accused person in the case, George Derek Oppong.
Prosecution Witnesses
The state in all, called six (6) prosecution witnesses. They are the Director of Legal Administration at the National Communications Authority (NCA), Abena Awarkoa Asafo Adjei; Dr. Isaac Yaw Ani, Deputy Director General in charge of Management and Operations at the National Communications Authority (NCA); Henry Kanor, Deputy Director General in charge of Technical Operations at the National Communications Authority (NCA); Colonel Michael Kwadwo Poku, Director of Operations at the National Security; Deputy National Security Coordinator, Duncan Opare, and Detective Chief Inspector Michael Nkrumah, investigator of the case. All the accused persons when they took turns to open their defence testified on their own and none called any defence witnesses in support of their cases.
The Counts and Charges
In all seventeen (17) counts and eight (8) charges were preferred against the accused persons. They are 1. Conspiracy to willfully cause financial loss to the State, 2. Willfully cause financial loss to the State, 3. Conspiracy to steal, 4. Stealing, 5. Using public office for profit, 6. Using public office for profit, 7. Using public office for profit, 8. Using public office for profit, 9. Using public office for profit, 10. Contravention of the public procurement act, 11. Contravention of the public procurement act, 12. Money laundering, 13. Money laundering, 14. Money laundering, 15. Money laundering, 16. Money laundering, and 17. Intentionally misapplying public property.
Observations of the Court
The two and a half year trial was bedeviled with multiple applications for stay of proceedings at the High Court pending the determination of several applications at the Court of Appeal, interlocutory applications on admissibility of exhibits, ruling on submission of no case and a reference to the Supreme Court for an interpretation of article 19(2)(e)(g) of the 1992 Constitution. A trial that could have been completed in six (6) months thus traveled for two and a half years. During the trial, Justice Kyei Baffour could not hide his frustration on the “delay tactics” adopted by the defence team by seeking to go on appeal over the slightest disagreement in the course of the trial. Justice Eric Kyei Baffour thus made the following observation when he delivered his judgment;
“Before I receive submissions from learned counsel in respect of mitigation, I find it necessary to place on record some lessons emanating from this suit by way of guidance for future possible reforms of the Ghanaian criminal jurisprudence. The suit which commenced in this court on the 22nd of December, 2017 has taken about two years five months to complete. Part of the delay was the necessity for a reference to the Supreme Court for an interpretation of article 19(2)(e)(g) of the 1992 Constitution. The guidance provided no doubt will shape our criminal trials in this country for a long time to come. However, the greater part of the delay in this trial was the persistent interlocutory appeals that were filed. No one can be grudge any party that intends to test the rightfulness or otherwise of a decision or a ruling by a trial Judge more so when the rules do not frown on them. Due to that there were numerous appeals with its attendant applications for stay of proceedings before me and on refusal before the Court of Appeal. A great deal of these appeals related to the decision of the court to admit some documents especially Ex ‘G’, ‘L’ and ‘K’. What dawn on me was that in a simple trial there could be as much as one thousand interlocutory appeals as any decision to admit or reject a document or any decision to allow or overrule a question being asked in examination in chief or cross examination can be a subject of interlocutory appeal with its attendant applications for stay of proceedings”.
The learned Judge further noted that “admission or rejection of a document does not mean that a substantial miscarriage of justice has occurred. A document may be admitted alright but may have little or scant probative value. And if under section 31 of the Courts Act, Act 459, where even there has been a conviction or acquittal and there is an appeal, the appellate court is enjoined to dismiss the appeal unless the Appellant can demonstrate that any technical defect or the point being canvassed was weightier enough to have occasioned a substantial miscarriage of justice’.
Recommendations of the Court
From the foregoing, the Court of Appeal Judge posited that “a decision by a trial court to admit or reject a document or admit or overrule a question at the trial, its impact on the outcome of the case in either sustaining a conviction or acquittal is very difficult to determine at that stage”. “And if that cannot be determined at that stage, it is suggested that the Attorney General and the Law Reform Commission should seriously consider the introduction of a possible amendment in the Courts Act or the Evidence Act to make a trial proceed with minimum interruptions and only grant a limited widow of an appeal in respect of an interlocutory matter such as submission of no case to answer”.
“For it is when after judgment, an appeal is lodged that a party can bring up the call of the trial court on a document that was admitted or rejected and how that call has affected the outcome of the case by resulting in a substantial miscarriage of justice. Any claim of any serious fight against public sector corruption would be an uphill task for the nation if the rules that we operate moves at a snail’s pace. The citizens of Ghana in whom the sovereignty of the nation resides will continue to mourn that the poor without lawyers are tried within a short time but the rich and powerful who are able to afford the best of lawyers use the rules to drag cases in court ad infinitum” Justice Eric Kyei Baffour Stated in his judgment.
In the judgment, the venerable Justice of the Court of Appeal said “with case management conference now introduced in criminal cases, such an innovation as I have proposed, if added will give full meaning to the Constitutional provision under article 19(1) of the Constitution that a person charged with a criminal offence shall be given a fair hearing within a reasonable time. Two, the necessity for pre-trial disclosures and inspections that emanated from this case as decided by the Supreme Court, to my mind calls for an urgent need for a complete overhaul of the both Act 29 and Act 30 as the decision of the Supreme Court makes the procedure under Act 30 now anachronistic”.
‘If these necessary amendments are effected to take away interlocutory appeals on admission or rejection of documents with the sole purpose to cause enough delay and stultify criminal trials when there is no evidence to demonstrate how such a ruling has occasioned a substantial miscarriage of justice, that would send cold shivers down the spine of corrupt public officials that when their misdeeds come to light and are arraigned in court, their fate would be known in not more than six months’ time, such persons would definitely be deterred from corrupt acts. These are the innovations needed for public officials to know that public funds are not meant to be used as personal property” Justice Eric Kyei Baffour opined in the concluding part of his recommendations.
Conclusion
Is it possible to set two, three or four weeks aside to adjudicate and conclude a criminal trial once started, that is, after case management has been concluded and discoveries and pretrial disclosures are complied with by the prosecution? This is done in other countries why not in Ghana? As I set out to write this opinion, I recalled what I call the three major elements of criminal trials and they are the Law, the Facts and the Process. It is the duty of the prosecutor to ensure that an accused person has been charges based on the law and that the facts of the case that are presented in Court support the breach of the law by the accused person or persons. The duty of Pretrial disclosure to the accused and their lawyers imposed on the prosecution means that the defence team is brought up to speed on all grounds on which the State seeks to stand to press charges against the defendant(s) in a criminal matter. To this end, the procedure for criminal trials under Act 29 and Act 30 offers accused persons a blank cheque to frustrate their prosecution when their corrupt practices are found out. If Ghana is to win the fight against corruption, it is absolutely important that urgent reforms are introduced to block the avenues in the law that affords accused person the opportunity to fight the prosecution process and thereby delay the adjudicating of criminal cases.
THE WRITER
Wilberforce Asare
Presidential and Legal Affairs Correspondent
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