A legal challenge mounted by the National Chairman of the opposition National Democratic Congress (NDC), Samuel Ofosu Ampofo, against the use of a leaked tape as evidence in his ongoing trial has been dismissed by the Accra High Court.
Mr Ampofo is standing trial, together with Anthony Kwaku Boahen, a Deputy Communications Officer of the NDC, over an alleged leaked tape in which the NDC National Chairman allegedly incited violence against the Chairperson of the Electoral Commission (EC), Mrs Jean Mensa and the Chairman of the National Peace Council (NPC), Rev. Prof. Emmanuel Asante.
The two have pleaded not guilty to conspiracy to commit assault against a public officer, while Ofosu-Ampofo has pleaded not guilty to two counts of assault against a public officer.
His lawyers were seeking to have the charges of assault on public officers leveled against their client dismissed on the basis that the leaked audio tape, which is expected to be used by the prosecution as evidence,was obtained illegally.
It was the contention of the lawyers that the leaked tape infringed on Ampofo’s right to privacy as enshrined in Article 18(2) of the 1992 Constitution.
However, in a ruling last Monday, the court, presided over by Justice Samuel Asiedu, dismissed the application, describing it as unmeritorious.
The presiding judge held that the application was not different from a similar application by Ampofo which was earlier dismissed by the court.
Justice Asiedu ruled that the prosecution had not started its case or presented any evidence for the court to determine whether or not that evidence was in violation of any law.
He said the only way that could be done was if the evidence was adduced in the trial.
“There is no merit in the application and the court will not honour the invitation to strike out the charges,” Justice Asiedu held.
Protect my client’s privacy
Making a case for the application, counsel for Ampofo, Mr Tony Lithur, submitted that the state should not be allowed to infringe on the rights of his client.
He argued that the state should be restrained from abusing the privacy of citizens on the basis of preventing a crime.
According to counsel, if the state was allowed to engaged in such acts, citizens would be at risk.
“It is a dangerous precedent for the state to be allowed to prosecute the leader of the biggest opposition party under such circumstances,” he argued.
In response, the prosecution, led by the Director of Public Prosecution (DPP), Mrs Yvonne Atakora Obuobisa, disagreed with the defence and urged the court to dismissed the application.
She argued that Article 18 clause 2 which protected the privacy of people had exemptions such as the prevention of crime, public order and public safety.
“Your individual freedoms stops when someone’s freedom is also affected.
Where your freedom involves the commission of a crime or disorder, then this exception applies,” she argued.
It was also her submission that the said leak tape in which Ampofo allegedly made the said comments were already in the public domain.
“The audio recording was public knowledge even before it came into the possession of the police,” the DPP argued.
Case of the A-G
According to the prosecution’s facts, following the Ayawaso West Wuogon by-election debacle on January 31, 2019, Ofosu-Ampofo met with some NDC communicators on February 3, 2019.
The facts explained that at the said meeting, Ofosu-Ampofo and Boahen set out a road map of criminal activities, including violence against Mrs Mensa and Rev. Prof. Asante.
It said an audio recording of the said meeting was leaked, leading to investigations by the Criminal Investigations Department of the Ghana Police Service into the comments on the tape.
The prosecution added that on February 20, 2019, Boahen granted a radio interview in which he confirmed his participation in the said meeting and also revealed that the leaked audio recording was a true reflection of what had transpired at the February 3, 2019 meeting.