NCA Trial: High Court refers matter to Supreme Court

An Accra High Court hearing the case of some former senior officials of the National Communication Authority over a four million dollar Cyber Security Surveillance Equipment has directed lawyers of the five accused to seek interpretation of Article 19 clause 2 (e) and (g) of the 1992 Constitution at the Supreme Court.

The issues are about disclosure of documents a prosecution would want to rely upon in a trial.

The Court presided over by Mr Justice Eric Kyei Baffour has therefore stayed the proceedings before it.

Delivering its ruling, the court noted that there were three questions that ought to be answered in relation to matter.

According to court there was the need to ascertain whether or not the accused persons were entitled to the disclosures adding that if they do, at what point the should prosecution furnish them with all documents that they sought to rely on.

Additionally, whether or not the Supreme Court would opine that in a summary trial an accused person was entitled to documents in possession of prosecution even if they will not rely on them in the trial.

According to the High Court, defence counsel’s assertion that prosecution should give them all the documents they intend to tender in evidence three days before admitting them in evidence was inadmissible.

“No wonder the defence counsels failed to cite any rules or laws supporting their demands” the court remarked.

Defence counsels at the last sitting prayed the Court to order the State to furnish them with documents and other relevant materials they wish to rely on in the trial.

The lawyers had prayed prosecution to provide them with witnesses’ summary and caution statements and the summary of evidence and that the State’s refusal to provide them would constitute a violation of human rights of the five to a fair trial.

Moving the motion, Mr Godwin Tamakloe, one of the Counsels for Alhaji Salifu Mimina Osman former Deputy National Security Coordinator, further submitted that all materials that prosecution seek to rely on should be provided them within three clears days before attempting to tender them in evidence during trial.

Osman is standing trial with George Derrick Oppong, a Director of Infralock Development Limited (IDL) and 3 former NCA officials namely Eugene Baffoe-Bonnie who is a former Board Chairman, William Tetteh Tevie, the former Director General, Nana Owusu Ensaw, a former Board Member.

Mr Tamakloe further prayed the court to declare inadmissible all documents and materials which did not meet the three clear days requirements.

Defence Counsel who cited Article 19 (2) (e) (g) to buttress his claims said the accused have the right to be given adequate facilities and other documents that may go against them or may benefit them.

According to Mr Tamakloe the situation whereby documents that the prosecution intends to rely on are given to the accused in court and witnesses are called to tender those documents did not constitute fair trial.

Additionally, Mr Tamakloe said the accused ought to be afforded facilities for them to adequately prepare for their defence.

“How can a man prepare for his defence when he is kept in the dark or blindfolded,” Defence Counsel asked.

Mr Tamakloe was not enthused with the practice that the State produced over three different documents and defence counsels only go through the documents briefly to conduct their cross-examination.

Mr Osafo Buabeng, Counsel for Oppong who associated himself with Mr Tamakloe’s submissions indicated that the issue before court boarded on the interpretation of the Constitution hence the court should stay proceedings for the matter to be refer to the Supreme Court for that effect.

Mrs Evelyn Keelson, a Chief State Attorney opposed the motion and said there was no practice in the Constitution that required the state to furnish the accused with all the documents they were calling for.

According to Mrs Keelson the State filed its affidavit in opposition on January 24, this year pointing out that prosecution had complied with the orders of the court and they have made certain documents available to the defence team.

The Chief State Attorney said Article 19 of the 1992 Constitution did not place any obligation on the prosecution to furnish them with of all documents since it was a summary trial.

“We do not know under what rule under Evidence Act that suggests that they should be provided with document that would be tendered. Summary trials are guided by criminal and civil procedure law.”

Mrs Keelson prayed the court not be in a hurry to refer the matter to the Supreme Court adding that if care was not taken, “this practice would be an infringement on Constitution.”

According to her, “no constitutional issue has arisen out of this trial, no need to stay proceedings and refer any matter to the Supreme Court.”

The five accused persons are being held over alleged malfeasance into the purchase of a Cyber Surveillance Equipment.

They have been variously been charged with wilfully causing financial loss to the State, conspiracy to steal and stealing, using public office for private gain, in contravention of the Public Procurement Act, Money laundering and intentionally misapplying public property.

The five have all pleaded not guilty and are on a bail of one-million dollar each as well as three sureties each.

Sometime in 2015, the accused without authorization took a decision to purchase a Cyber Surveillance system, which they claimed was to be used for anti-terrorism operations.

The system, which was to be used in the fight against terrorism, reportedly has some of its components missing, and it cannot be utilised.

On December 22, last year, three persons, including Eugene Baffoe-Bonnie, former NCA Board Chairman and two others were hauled before the court over the alleged fraudulent purchase of a Cyber Security Surveillance system at a value of eight million dollars without approval of the Authority’s board.