The Republic v. Wereko-Brobbey & Mpiani PDF

Preview

Summary

case law...

Description

THE REPUBLIC v. CHARLES WEREKO - BROBBEY & KWADWO MPIANI

OKYERE

THE REPUBLIC VR CHARLES WEREKO-BROBBEY ; KWADZO OKYERE MPIANI IN IN (FAST AD CASE THE VR. 1. 2. 10TH

THE THE

SUPERIOR HIGH TRACK NO.

COURT OF COURT OF DIVISION)ACC

CHARLES KWADWO

39/

WEREKOOKYERE AUGUST,

JUDICATURE JUSTICE ACCRA 2010 2010 REPUBLIC BROBBEY MPIANI 2010

Facts The first accused person namely Charles Wereko Brobbey, was the Chief Executive Officer of the Ghana @ 50 Secretariat. The second accused Kwadwo Okyere Mpiani was the Chairman of the National Planning Committee of the Ghana @ 50 Celebration. The second accused was also the former Chief of Staff and Minister for Presidential Affairs under the government of former President J. A. Kufour. The two have been charged before this court with four counts of wilfully Causing Financial Loss to the State contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). The two have pleaded not guilty to all the four counts. Before the prosecution could start adducing evidence to discharge its burden, the accused persons separately filed two motions on notice challenging the jurisdiction of this court in trying them. The application filed by the first accused on the 24th May 2010, prayed as follows: ‘’ (a) an order striking out the instant criminal action and charges against the first accused person and dismissing same as being premature and a gross violation of the right of appeal of first accused person against adverse findings of a Commission of Inquiry under Article 280 (1), (2), (3), (4(, (5) and (6) of the 1992 Constitution or in the alternative; ‘’(b) an order staying proceedings of this criminal action until such time as the period allowed under the Constitution for first accused to challenge any adverse findings made against him by the Commission of Inquiry into the activities of Ghana @ 50 Secretariat has elapsed. Attached to first accused application were the Charge Sheet filed in this case and a photocopy of the White Paper on the Report of the Ghana @ 50 Commission of Inquiry. The second accused in his application to this court prayed that the charges against him be struck out and the criminal action dismissed as being unlawful and a gross violation of his constitutional right. The second accused also exhibited the Charge Sheet and the White Paper on the Report of the Commission of Inquiry on the Ghana @ 50 celebrations. For purposes of easy reference the two accused persons will be referred to simply as applicants in this ruling. APPLICANTS ARGUMENTS Learned Counsels for both applicants have argued strongly that the prosecution mounted against the applicants violates articles 278 and 280 of the 1992 Constitution. The main thrust of learned Counsels for applicants argument is that, in as much as the charges preferred

against the applicants originates from the adverse findings of the Ghana @ 50 Commission of Inquiry, the Attorney General is wrong in law by initiating this trial against applicants, who have a right of appeal against the said findings. The reasons advanced by Counsels are that by virtue of Article 280 of the 1992 Constitution the adverse findings of the Commission of Inquiry constitute a judgment of the High Court. They argued that being a judgment of the High Court; the Attorney General cannot prefer charges from the adverse findings. According to learned Counsels for applicants the only court proceedings that could take place after the Commission’s report, is for the applicants to exercise their right of appeal against the findings of the Commission at the Court of Appeal. Counsels submitted that in view of applicants’ constitutional rights of appeal, which they intend to exercise, the High Court cannot investigate or evaluate the adverse findings as the Attorney General is seeking to do in mounting this prosecution. Counsel for the second applicant in particular traced the constitutional history of Commissions of Inquiry in Ghana before the 1969 constitution and submitted that the framers of the 1969, 1979 and 1992 constitutions accepted the proposal that the findings of Commissions of Inquiry should no longer form the basis of criminal trials. Learned Counsel argued that the period before 1969 when adverse findings of Commissions of Inquiry were deemed prima facie evidence against persons adversely affected was no longer the law in view of article 280(2) of the 1992 constitution, which virtually is a reenactment of the provision in the 1979 constitution. Counsels further argued that the applicants appeared before the Commission as witnesses complying with the Commission’s requirement and like all such persons they should not be subjected to any civil or criminal proceedings, under any enactment in accordance with section 8(2) of the Commission of Inquiry (Ghana@ 50) Instrument, 2009, CI 61). Learned counsel again submitted that by initiating this prosecution contrary to the provisions of article 280(2) of the 1992 Constitution as well as section 8(2) of CI 61, the Attorney General was exercising her discretion wrongly and arbitrary contrary to article 296 of the 1992 constitution. Learned Counsels for the applicants therefore submitted forcefully that the instant prosecution of their clients is a blatant violation of their constitutional rights and for that matter the criminal charges should be struck out and the action against the applicants dismissed or stayed until their rights of appeal as provided by the constitution elapses. PROSECUTION’S ARGUMENTS IN RESPONSE The Attorney General in opposing the application by the applicants filed an affidavit on 10th June, 2010 and a supplementary affidavit on the 14th July 2010. In his submissions before this court learned Chief State Attorney who appeared for the Republic argued that the powers of the Attorney General to prosecute criminal offences in Ghana under article 88 of the 1992 constitution cannot be restrained by any court in as much as the power is exercised within the limits of the constitution. On this point Counsel referred this court to the case of Republic v. Circuit Tribunal, Koforidua, Exparte Nana Anku- Dododzah Didieye III, Court of Appeal unreported of 8th July 2005. Counsel argued further that there is no provision in the constitution that stops the Attorney General from prosecuting the applicants herein on the basis of the adverse findings made against them by the Commission of Inquiry into the Ghana@ 50 celebrations. Counsel submitted that the findings of the said Commission could only be deemed a judgment of the High Court after six months of the publication of the Commission’s report; hence nothing stopped the Attorney General from prosecuting the applicants before the six months matured. In a response to Counsel for the second applicant’s submission that the present prosecution amounts to a wrong and arbitrary

exercise of discretion by the Attorney General, the Chief State Attorney cited the case of Republic v. Minister for the Interior; Ex-parte Bombelli (1984-86)1 GLR 204, and argued that where the Attorney General is called upon to execute its constitutional and statutory duties it cannot be said that the exercise of such duties amounted to abuse of discretion. Counsel for the Republic argued further that the applicants herein were the main subject of the Ghana @ 50 Commission, so they should not be treated as ordinary witnesses for which they could take advantage of section 8(2) of CI 61. Counsel concluded that the applicants will be given a fair trial and for that matter this court should dismiss the application since they are without any merit. Having heard Counsels for the Accused persons and the Republic, and having examined and studied the processes and exhibits filed in this application, I am of the view that the application raises one fundamental issue to be resolved. That issue is whether or not the adverse findings or the report of the Ghana @ 50 Commission constitute a Judgment as defined by Article 280 of the constitution and if so whether or not the Republic acting through the Attorney General can mount this prosecution in the circumstance of this case having regard to the provisions of Article 278 and 280 of the 1992 Constitution. Before I proceed to address this major issue I would like to make some observations and also address some collateral issues that were joined in this application. The first observation is that the case of the applicants is not that the Attorney General has no power to prosecute crimes detected in the country as urged by learned Counsel for the Republic and averred in paragraphs 15 to18 of the affidavit in opposition. The case argued by Counsels for the applicants is that in the circumstance of this particular case, in as much as the prosecution is based on the adverse findings of the Ghana @ 50 Commission of Enquiry, the 1992 Constitution does not confer on the Attorney General the right to prosecute the applicants. This court is mindful of the powers conferred on the Attorney General of the Republic by article 88 of the 1992 Constitution. Indeed by article 88 (3) the Attorney General shall be responsible for the initiation and conduct of all prosecution of criminal offences in Ghana. What I understood Counsels for the applicants as submitting is that under Articles 278 and 280 of the 1992 Constitution adverse findings of Commissions of Inquiry established under the said provisions are deemed to be judgments of the High Court subject only to appeal to the Court of Appeal; and by that constitutional provisions and arrangements the Attorney General has no right to prosecute persons against whom adverse findings are made, since the adverse findings constitute a judgment. Simply put the case of applicants is that; the Attorney General cannot prefer charges against the applicants out of an existing judgment against them. In other words Counsels for applicants are submitting that in the circumstance of this case the Attorney General already has a judgment against applicants, which judgment the applicants have the right of appeal to the Court of Appeal. A collateral issue I seek to address is whether the charges preferred against the applicants in the charge sheet filed in this case is derived from the adverse findings of the Ghana @ 50 Commission. Clearly, the fact that the Ghana @ 50 Commission of Inquiry was established under article 278 of the 1992 Constitution is without any dispute. Indeed paragraph 1.0 of the Government White Paper exhibited by all the parties in this case provides as follows:“1.0: On June 1 2009 the Government of Ghana by Constitutional Instrument No. C.I 61 of 2009 appointed a Commission of Inquiry under Article 278 of the 1992 Constitution of the Republic of Ghana to enquire into the operations of the Ghana @ 50 National Planning Committee, the Ghana @ 50 Secretariat and matters incidental to the Ghana @ 50 celebrations.”

From the above provision there can be no dispute that the Commission was established under Article 278 of the 1992 Constitution. The issue joined really by the affidavits filed by the parties was whether the charges preferred against the applicants originated solely from the Commission’s findings. Even though in his submissions before this court, learned Counsel for the Republic conceded that the charges are derived from the findings of the Commission’s report, I deem it necessary to address this issue in view of the disposition in paragraph 22 of the Attorney- General’s main affidavit in opposition to the application and the attached exhibit marked’’ AG3’’. The resolution of this issue is important particularly so since this application is being tried on affidavit evidence .The said paragraph 22 reads as follows: “22 - That the accused/applicants are very much aware that apart from the Commission’s work, separate SFO/Police Investigations were conducted into their conduct relating to the Ghana @ 50 affairs and the Police contacted them in that regard.” The Attorney General then proceeded to exhibit a letter from the Serious Fraud Office marked as AG3 to support the above deposition. The content of the said exhibit which is addressed to the Director General of the Criminal Investigations Department, Police Headquarters, Accra, copied to the Honourable Attorney General and dated the 7th of January, 2010 will be reproduced for purposes of sound reasoning.

Dear

Sir,

INVESTIGATIONS INTO SUSPECTED STEALING OF STATE PROPERTY: TRASSACO VALLEY RESIDENTIAL FURNISHING FOR THE GHANA @ 50 CELEBRATIONS This office had information about the suspicious removal/disposal of property purchased by the state and used to furnish houses at the Trassaco Valley for the Ghana @ 50 Celebrations. The information available to the office is that the said items, which include furniture, airconditioners and other fixtures, were subsequently taken away and cannot be traced. We are forwarding to you a duplicate copy of our docket on the preliminary investigations we have conducted in order that you may undertake investigations into the said allegations as well as any other related issues which may come to your notice. I am by a copy of this letter advising the Honourable Attorney General of our action. Please

kindly

acknowledge

receipt.

Yours

faithfully,

B. EXECUTIVE Cc: The Attorney

MORTEY

Hon.

Attorney General’s

General and Minister Department,

AKPADZI DIRECTOR for Accra.

Justice

It is obvious that the investigations which is the subject of the above letter relates to alleged removal or disposal of fixtures from furnished houses at the Trassaco Valley for the Ghana @ 50 Celebrations. Having reproduced the letter from SFO, I think it is important I examine the charge sheet and the facts supporting same as an aid to determine whether the charges preferred against the applicants are derived from the findings of the commission or other source as paragraph 22 of the Attorney Generals affidavit in opposition sought to portray. As

indicated

the

applicants

are

charged

with

four

counts

as

follows;

COUNT ONE Willfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE 1.Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 wilfully caused financial loss to the state to the tune of GH¢ 46,999,563.00 by spending GH¢ 46,999,563.00 in excess of the amount of US$ 31.80 million or the cedi equivalent of GH¢ 29.31 million that was approved by Parliament for the Ghana @ 50 celebrations.

COUNT TWO STATEMENT OF OFFENCE Wilfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29)

PARTICULARS OF OFFENCE 1.Charles Wereko Brobbey, Chief Executive officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between February 2007 and January 2009 wilfully caused financial loss of GH¢ 2,116,906.91 to the state in the form of interest paid by the State on a loan of GH¢ 10,438,036.37 you contracted from Prudential Bank without authority.

COUNT THREE Wilfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, (Act 29)

PARTICULARS OF OFFENCE 1. Charles Wereko Brobbey, chief executive officer of the defunct Ghana @ 50 Secretariat,

2. Kwadwo Okyere Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, in or about September 2006, wilfully caused financial loss of GH¢ 966,048.52 to the State in the form of interest paid by the State on a bank overdraft you contracted from Prudential Bank without authority. COUNT FOUR Wilfully causing financial loss to the state contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960(Act 29). PARTICULARS OF OFFENCE 1. Charles Wereko Brobbey, Chief Executive Officer of the defunct Ghana @ 50 Secretariat, 2. Kwadwo Mpiani, Chairman of the National Planning Committee of the Ghana @ 50 celebrations, that you between May 2006 and December 2008 wilfully caused financial loss to the State by expending the amount of GH¢ 19,352,498.00 being income that was realized from the activities and programs of the Ghana @ 50 Secretariat without authority. The facts presented by the prosecution in support of these charges and to basically explain the circumstance under which the offences charged were allegedly committed, clearly demonstrates that the preferred charges originates from the findings of the Ghana @ 50 Commission. In fact in the particulars of the four charges as stated above, the applicants are charged for expending the various sums of monies stated therein without authority or causing the state to loss such sums of money. There is no count on the charge sheet that relates to removal or disposal of furniture, air conditioners or other fixtures from the furnished houses of the Ghana @ 50 Secretariat at the Trassaco Valley. Having examined the charge sheet and the facts presented by the prosecution, I find clearly that the charges preferred against the applicants in this case have its origins from the adverse findings made by the Commission which was established under Article 278 of the 1992 Constitution. I now address the fundamental issue in this case; which is whether the adverse findings so made by the Commission constitute a judgment of the High Court as defined by Article 280 of the 1992 Constitution. And if it is a judgment, is the Attorney General right in law in mounting this prosecution? In addressing the legal issues raised in this case, I have cautioned myself that the High Court has no jurisdiction to interpret provisions of our constitution and I do not attempt to assume that jurisdiction, which is preserved for our Supreme Court. I seek to address the legal issues under the authority of article 33 of the 1992 constitution, which vest the High Court jurisdiction to enforce the fundamental human rights enshrined in our constitution. The said article 33 provides as follows:“Art. 33 (1) Where a person alleges that a provision of this constitution on the fundamental human rights and freedoms has been or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress’’. The applicants herein are invoking the jurisdiction of the High Court to strike out, dismiss or stay this prosecution mounted by the Attorney General, in the circumstances of this case because it is a violation of their right of appeal guaranteed under article 280(2) of the 1992 Constitution. It is clear that the right of appeal, as provided under article 280(2) is not one of

the specified rights and freedoms enshrined in Chapter 5 of the 1992 Constitution, however article 33 (5) of the constitution guarantees other rights not specifically mentioned in chapter 5 of the constitution. Article 33(5) provides as follows:“ Art.33 (5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man’’ I find the right of appeal guaranteed under article 280(2) of the constitution one of such rights inherent in a democracy and as such the High Court has the jurisdiction to enforce same under article 33 of the Constitution. From the report of the Commission which was exhibited in this proceedings by the Attorney General and marked as ‘’AG2’’ there is no doubt that the Commission made adverse findings ...