Musings from Abakrampa (ABK)

Ever heard of Abakrampa, aka ABK? It is a Fante town located in the Central Region.

The town’s name could have easily been conjured up by Charles Dickens, reminiscent as it is of toasted crumpets and tea!

I find myself saying it over and over again just to savour its wondrous tones. Try it! Anyway, I digress.

The occasion was a sad one —the final funeral rites for Nana Gyedua Eshun, the late sister of my dear friend since my days in England, colleague at the bar and senior partner at Sterling Partnerships, Yaw Eshun.

The tributes from a cross-section of highly influential personalities were a testament to a very accomplished life. May she rest in everlasting peace. Now to the business of the day.

I was ‘accosted’ by another colleague from our London days, who is also a prominent member of the New Patriotic Party (NPP), about the recent article on these pages justifying the spate of Nolle Prosequi notices filed by the Attorney General in some high-profile cases.

My charge (no pun intended) was that my riposte justifying the discontinuation of those trials was wrong and not based on any proper legal principles.

I took my dear friend through the rigours of legal exposition and he eventually succumbed to the forcefulness of my arguments.

The exercise left me musing on the ‘Reset’ agenda vis a vis criminal justice reform. 

What is agitating my mind is the fact that if a person of the intellectual calibre of my friend was of the view that the Nolle Prosequi were politically motivated and devoid of proper legal basis, then what chance would your average ‘Joe Bloggs’ have of understanding?

Therefore, I felt it behoved me to reiterate the reasons why I thought the discontinuation of the cases was justified.

Case

Due to the sheer constraints of space, I will use the Social Security and National Insurance Trust (SSNIT) case as a point of reference.

This is in part due to my first-hand knowledge of the case as I was one of the defence barristers. It is important to state right at the outset that I do not condone corruption, as this is the perception many people have of defence lawyers involved in these high-profile cases.

The duty of the defence barrister, as per the dictates of the legal profession, is to defend clients to the best of their abilities and ensure that due process is observed in any prosecution.

After all, the Constitution deems everyone innocent until proven guilty.

But for this role of defence lawyers, many otherwise innocent persons would be languishing in jail.

Five persons, Ernest Thompson, a former Managing Director of SSNIT, John Hagan Mensah, Dr Caleb Afaglo, Peter Hayibor (former employees of SSNIT) and Juliet Hassana Kramer (a businesswoman) were variously charged inter alia with conspiracy to commit the crime, wilfully causing financial loss to the state, defrauding by false pretences and contravention of Procurement Regulations.

This case, as subsequent events have proved, should not have been brought at all as it fell flat in the face of established principles of prosecution.

In other words, the criteria for instituting proceedings, as contained in the Code of Practice for Prosecutors, were not followed.

Rule

In particular, the cardinal rule of having sufficient evidence before starting a prosecution, i.e. the evidential threshold had not been reached. Right from the onset, the prosecution encountered problems.

For instance, the defence brought an application at the beginning of the trial that the preferred charges against the accused persons offended the provisions of Article 19(2)(d) and Section 112 of the Criminal and Other Offences Act, in that the charges were nebulous and did not state exactly what the accused persons had done.

The trial judge refused the application but it was subsequently overturned on appeal, first by the Court of Appeal and finally by the Supreme Court.

The prosecution, therefore, had to amend the charges accordingly, stating clearly what the accused persons had done to warrant the charges.

At the end of the prosecution case, the defence made a submission of no case, i.e. an application to dismiss the charges because the prosecution had failed to establish a case which warranted the defence opening their defence.

The trial judge, His Lordship Joseph Henry Kwoffie, a Supreme Court Judge, sitting with additional responsibilities as a High Court Judge, acquitted the five accused of almost all the charges relating to conspiracy, wilfully causing financial loss to the state and contravention of the Public Procurement Act.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com