In The Matter of The Republic Vrs Tsatsu Tsikata

IFC HAS NO

IMMUNITY

…Supreme Court Declares

…Justice Abban, Appeal Court Were Wrong

By J. Ato Kobbie, Managing Editor

The Supreme Court of Ghana, Wednesday held by a unanimous decision that the

International Finance Corporation (IFC), has no immunity and therefore amenable

to the laws of Ghana, thereby upholding an appeal by Tsatsu Tsikata, former CEO

of the Ghana National Petroleum Corporation (GNPC).

The five-member panel, comprising Justices William Atuguba, presiding, Sophia

Akuffo, Samuel Kwadwo Asiamah, Sophia Adjeibea Adinyira and Vida Akoto-Bamfoe,

all affirmed that both the High Court, presided over by Justice Henrietta Abban

and the Appeal court were wrong in not granting Tsikata’s request to have the

IFC subpoenaed to come and testify in his trial.

Tsikata, who was standing trial before the fast track court was convicted and

jailed on June 18, 2008 by the presiding judge Mrs. Justice Abban, at a time an

appeal by Tsikata was pending at the Supreme Court. The decision means Tsatsu

Tsikata did not get a fair trial and his human rights were trampled upon

contrary to Article 19 of the 1992 Constitution, which requires that accused

persons are granted the opportunity to defend themselves and adduce evidence

without hindrance.

Justice Abban, who had stayed proceedings at the high court since December 20th

2006, when she was first notified of the appeal at the highest court of the

land, “so that there would not be a trial or miscarriage of justice,” in the

event that the Supreme Court upheld the appeal, rescinded her decision on June

18, 2007 convicted, and jailed the former GNPC boss.

The panel was however, split in its decision regarding the immunity of directors

and officers of the IFC, where it held by a three-to-two decision that these

officials, like diplomats and in conformity with international treaties and

conventions to which Ghana subscribe, immune from judicial processes in Ghana.

Justice William Attuguba, who read the first ruling to which Justice

Akoto-Bamfoe associated herself, declared that the IFC, together with its

directors and officials were all amenable to judicial processes of Ghana and

therefore were compellable witnesses.

The second ruling, which was read by Justice Adinyira, and shared by Justice

Akuffo and Julius Ansah, however declared that with the exception of the IFC,

the directors and officials are immune from court processes.

Justice Adinyira argued that the Appellant’s Constitutional rights and

privileges were limited by the rights and privileges of others and therefore the

IFC Country Director’s claim of right to immunity must be respected.

The panel was reconstituted in May 2010, with Justices Sophia Akuffo and Vida

Akoto – Bamfoe, replacing Justice Alan Brobbey, who recused himself from the

original panel, and Justice Samuel Kwadwo Asiamah, who retired.

THE APPEAL

In his grounds of appeal, Professor Emmanuel Victor Oware Dankwa, counsel for

Tsikata, had submitted that the Court of Appeal erred by relying on the

statutory provision conferring immunity of the International Monetary Fund (IMF)

from judicial process, to uphold the immunity claims of the IFC

Prof. Dankwa argued further that by that grave error of using a statutory

provision on the immunity of the IMF, when the case concerned the IFC, the Court

of Appeal erred, thereby denying his client the constitutional rights to a fair

trail, by denying him the opportunity to have his witness heard.

Tsikata’s counsel submitted further that the Appeal Court failed to appreciate

that the High Court, having issued a subpoena to the IFC Country Director to

attend court to give evidence and produce documents, was misled to set aside

that order by counsel for the IFC, who cited a statutory provision relating to

the IMF.

Mr. Tsikata, who was standing trial on three counts of causing financial loss to

the state and one count of intentionally misapplying public property, sought

from the Supreme Court a reversal of a ruling by the Appeal Court o December 19

2006, which endorsed the IFC’s claim of immunity from appearing before any court

in Ghana.

However, on June 18th, 2001, a week before the date the Supreme Court had fixed

to deliver its ruling on whether or not the IFC could be prevailed upon to

appear in court to testify in the case, Mrs. Justice Abban, an Appeal Court

judge presiding over the trial at the Fast Track High Court, convicted the

former GNPC boss, declaring that litigation must come to an end.

She sentenced Tsikata to five years imprisonment on each of the four counts on

which he was charged.

Tsikata subsequently moved a motion at the Supreme Court (SC) for the court to

exercise its supervisory jurisdiction to quash the judgment of Mrs. Justice

Henrietta Abban on June 18th, 2008.

Mr. Tsikata also asked the Supreme Court to arrest this judgment on the appeal

on whether the IFC, the private sector arm of the World Bank Group, was amenable

to the jurisdiction of the court of Ghana or not.

He argued before the court that the decision by justice Abban not to await the

Supreme Court decision on the IFC immunity, as she herself had previously

determined, undermined the authority of the Supreme Court and amounted to

disrespect and a slap in its face.

Tsikata argued that this was more so as the trial judge herself had indicated

that failure to await the Supreme Court decision could lead to a mistrial or

miscarriage of Justice.

Tsikata further argued that Mrs. Justice Abban acted in breach of Article 296

(a) of the 1992 Constitution to be fair and candid in the exercise of her

discretionary power and committed patent errors of law in making the decisions

and determinations prior to delivering her judgment convicting him.

The former GNPC boss further told the Supreme Court that Justice Abban had

violated her constitutional right of determining who represented her in court by

insisting that he represented himself in curt because he was a lawyer.

The then Attorney – General, Mr. Joe Ghartey, opposed the Appellant’s arguments.

GNPC, under Mr. Tsikata, guaranteed a loan for valley Farms, which was into high

grade cocoa plantations, on the advice of Merchant Bank. However, Valley Farms

defaulted in repaying the loan and GNPC, as guarantors, were called upon to pay.

Tsikata was represented in court by Prof. E. V. O. Dankwa, whilst the state had

Mrs. Merley Wood.