Repealed law cannot be acted upon - Counsel

Accra, June 12, GNA - Professor Emmanuel V.O. Dankwa, Defence Counsel for Tsatsu Tsikata, a former Chief Executive of Ghana National Petroleum Corporation (GNPC), who is standing trial for causing financial loss to the State, on Monday told an Accra Fast Track Court (FTC) that a repealed law could not be acted on.

He asserted: "No person shall be convicted of a criminal offence unless the offence is defined and the penalty is prescribed in a written law."


Prof. Dankwa, who was continuing an address on behalf of his client to close his case stated: "The general rule of law is that a repealed statute cannot be acted upon after its repeal, although all matters that have taken place under it before its repeal are valid and cannot be called in question."


He said: "My Lord we have noticed the ingenuity of the Director of Public Prosecution (DPP) trying to integrate a repealed law." Counsel, referring to the repealed law, "PNDCL 78 with Section 179 of the amendment of the Criminal Code", said if the Court had to go back to integrate a repealed law under which the accused person was not charged with an existing law, there must be something wrong with the whole process.


Tsikata is charged with three counts of wilfully causing financial loss of about 2.3 billion cedis to the State through a loan he, on behalf of the GNPC, guaranteed for Valley Farms, a private concern. The accused is also charged with misapplying public property.


The trial judge, Mrs Justice Henrietta Abban, an Appeal Court Judge with additional responsibility as a High Court Judge, has admitted him to a self-recognizance bail after he had pleaded not guilty.

The defence team includes Major Rowland S. Agbenato (rtd), while the Republic is represented by Ms Gertrude Aikins, Chief State Attorney and Mr Augustines Obour, Assistant State Attorney.


Prof. Dankwa pointed out that if at any stage before the conviction, the law creating the offence and the punishment was totally repealed without any saving, the investigation and proceedings could not be continued.


He stated that it was obvious that the recourse to the Public Tribunal Law (PNDCL78) was an act of desperation on the part of the Prosecution, faced with the reality that its case still rested on retroactively applying the Criminal Code (Amendment) Act of 1993 to a Guarantee Agreement of 1991.


This was especially so "when the evidence from the Prosecution itself, as we see shortly, clearly shows that the payments charged were not the acts of the accused person.


Counsel said the charge of the accused, "illegally authorizing" the payments, took them back to the Guarantee Agreement signed in March 1991, before the Criminal Code (Amendment) Act, Act 458, came into force.

Prof. Dankwa argued that it was never the case for the Prosecution that there was an offence committed by the accused under PNDC Law 78, adding that the first time reference was made by the Prosecution to PNDC Law 78 was in the reply of the submission of no case.


He said an accused learning of the nature of the offence charged after a submission of no case was clearly denied the basic right provided for in Article 19(2) (d) of the Constitution.


Counsel stated: "A person charged with a criminal offence shall be informed immediately in a language he understands, and in detail, of the nature of the offence charged."


Prof. Dankwa said there were further irregularities about the charge sheet that must be brought to the attention of the court. "The statement of offence; as well as the particulars of the offence, in respect of the first three counts, all falls short of the requirements of the Constitution as well as the Criminal Procedure Code, Act 30." Counsel noted that the statement of offence referred to "wilfully causing financial loss," but the language of the section of the Criminal Code cited (Section 179A(3) was not in those terms.


"It reads: 91Any person through whose wilful, malicious or fraudulent action or omission - (a) the State incurs a financial loss; or (b) the security of the State is endangered, commits an offence.=92=94

He noted that unlike Section 179A (1), which states that "Any person who by a wilful act or omission causes loss, damage or injury to the property of any public body or any agency of the State commits an offence," Section 179A (3) did not use the word "cause." He said no offence of "causing financial loss" existed in the section of the Criminal Code under which the accused had been sent before the Court.


According to him, it was a dangerous process downhill when =93popular parlance=94 was substituted for the language of the Criminal Code.


Prof. Dankwa averred: "The defects in the charges against the accused person, involving the failure of the Prosecution to meet basic constitutional requirements for a criminal charge, are enough basis for acquittal of the accused.=94 12 June 06