The Commercial Division of the Accra High court has admitted into evidence the alleged leaked audio recording of the Chairman of National Democratic Congress (NDC) after over five hours of court hearing.
This was after the court presided over by Justice Samuel Asiedu, a Court of Appeal judge sitting with the additional responsibility as a High Court judge had allowed the over two-hour recording to be played in opened court.
The audio tape which was tendered in evidence through Police investigator with the Criminal Investigation Department Detective Chief Inspector Bernard Berko, the State’s third witness captures the voice of Samuel Ofosu-Ampofo and some party officers at a party function.
The presiding judge while ruling on objections by defence counsel Tony Lithur and Aziz Bamba on the admissibility of the audio tape said that the audio is relevant to the charges leveled against the NDC chairman and Kweku Boahen, a deputy communications officer of the party.
On the defence lawyers argument that the manner the said audio was obtained breached the constitutional rights of the accused persons and the Security Intelligence Agencies Act 526, the court said there was no evidence before the court that says the audio was obtained by the National Security or any of its agencies.
The court also turned down a request from the defence lawyers to refer the matter to to the Supreme Court upon citing Article 18 (2) which raised issues of constitutional interpretation.
The court is of the opinion that, the apex court had earlier determines such a provision and the only thing the court below it is to do is to apply it.
Breach of privacy
Mr Lithur, counsel of the NDC chairman in objecting to the tendering of the audio evidence said the background given by the witness to the acquisition of the tape that it was recorded surreptitiously without the knowledge or consent of the accused persons was wrong.
He argued that, the recordings obtained on the assumption that that Mr Ofosu-Ampofo has been or will be identified as none of the speakers of the occasion breaches the lawful practice.
Mr Lithur argued that, the accused person’s right of privacy of his communication as has been guaranteed under Article 18 ( 2) of the 1992 Constitution.
He also contended that, Mr Ofosu-Ampofo is the chair of the largest opposition party in the country and that position is a unique one.
He argued that, his client is entitled under Article 21(3) to right and freedom to join political party and participate in politicised activities subject to what maybe necessary in a free democratic society.
He said the consequences by which the security intelligence agencies Act order under sections 29/30 Act 526 requires a warrant and that being the case, the agency itself could not have lawful recordings without a warrant.
He further argued that, with that being the case, the state cannot rely on the audio recording as the sole basis to institute a criminal prosecution against his client.
“This is a classic case where I will urge your lordship to exclude evidence on the basis of substantial prejudice.
“In fact, I will like the court to refer this case to the Supreme Court for determination because your Lordship is bereft of jurisdiction under Article 130 (2) for determination of what is clearly a matter that requires constitutional interpretation,” Lawyer Lithur urged the court
“My position will be different if some offense is alleged to have been committed by any of the accused persons and the tape is being sought to be tendered in evidence in support of the case. In this case, the tape is the only evidence they are relying upon," Lawyer for Ofosu-Ampofo argued.
Who made this recording?
Lawyer Aziz Bamba, counsel for Kweku Boahen who also opposed vehemently to the tendering of the audio recording argued that, “the admission of a radio recording will not comply with the essential required of Article 18 (2) of the 1992 Constitution in terms of the prescribed circumstances under which the right to privacy of the citizen could be interfered with.”
He argued that, prosecution has not been able to demonstrate that the audio recording was secured or made in accordance of the law.
He contended that, “the violation of the rights to privacy is redressible human right violation under Article 33 (1) of the constitution.”
“Without knowing the identity of the person who made the recording, how can the victim of the interference be able to maintain cause of action and seek redress?”, he wondered.
Responding to the the objections of the defence lawyers, the Director of Public Prosecution (DPP) Mrs Yvvone Atakorah Obuobisa said it is the case of prosecution that per the audio recording which the investigator sought to tender is relevant to the conduct of the case.
He said, section 51 (1) of the Evidence Act, the information contained in the audio recording taken on February 19, 2019 is critical to prove the existence of the utterances made by the accused persons and to also assist the court to make a determination.
“I have also looked at whether it’s admission infringes Article 18 (2) of the 1992 Constitution as have been alleged by defense counsel. My Lord, Article 18 (2) guaranteed the protection of our individual privacy which we tout ad also place an exception which allows this right to be interfered with…to serve as the safety and well-being of the country, protection of disorder of crime,” the DPP told the court.
She argued that the recording was coming from a proper custody as the investigator has testified on how he obtained it.
She said by virtue of section 142 of the Evidence Act the opinion of Chief Inspector Bernard Berko as to whether the voice is any of the accused persons is very relevant, authentic and must be admitted.
The court after listening to all the parties and making references to relevant authorities overruled the objections and admitted the audio recording into evidence.
After over five hours of hearing, the court adjourned hearing to November 30, for continuation.
The two have been charged with the conspiracy to commit harm to certain persons.
While the NDC chairman is separately facing a charge of assault for allegedly inciting party communicators against the EC chairperson and the chairman of the Peace Council.