Lawyers for two of the four former top officials of the National Communications Authority (NCA) and a private businessman who have been accused of wilfully causing financial loss to the state, have asked an Accra High Court trying the case to cease its proceedings until Article 19 Clause 2 (E) of the 1992 Constitution is interpreted by the Supreme Court.
The prayer by Godwin Tamakloe, counsel for Alhaji Mimina Osman and Osafo Buabeng, who is representing the businessman – George Dereck Oppong – comes on the back of an affidavit they filed asking the court to order the state to provide them with all documents, materials and witness statements three days before prosecution witnesses are called to enter the dock.
According to Mr. Tamakloe, Article 19 Clause 2 (E) of the 1992 Constitution provides that accused persons must be given ‘adequate time and facilities for the preparation of their defence,’ which is within their fundamental human right.
However, the state, in its affidavit in opposition, says the constitutional provision does not mandate the prosecution to serve the accused persons with all the documents, materials and list of witnesses it (prosecution) intends to rely on for trial.
The affidavit states that the high court, presided over by Justice Eric Kyei Baffour, does not have the jurisdiction to interpret the 1992 Constitution and in the event that the need arises, it is the Supreme Court that has the authority to do so.
It is in this vein that the two defence lawyers are praying the court to stay its proceedings until the said Article is properly interpreted by the Supreme Court.
The immediate-past board members, including the chairman, Eugene Baffoe-Bonnie; William Mathew Tetteh Tevie, former Director General of the NCA; Dr Nana Owusu Ensaw, former chairman of finance sub-Committee of the NCA board; Alhaji Salifu Mimina Osman, former National Security Deputy Coordinator on the NCA Board, as well as a private businessman, George Derek Oppong, Director of Infraloks Development Limited (IDL), have been charged with wilfully causing financial loss to the state and stealing.
A first prosecution witness, Abena Asafu-Adjei, was discharged last Tuesday after she had concluded her testimony to the court and the defence lawyers had ended their cross-examinations.
The state was expected to call its second witness yesterday but that could not happen because of the applications filed by lawyers for Alhaji Osman and Mr. Oppong.
Moving his motion, Godwin Tamakloe stated that the refusal by the state to furnish his clients with copies of documents and materials they intend to rely on in the trial constitutes a violation of his client’s human rights to a fair trial.
He therefore prayed the court to make an order compelling the prosecution to furnish his client with all the documents and materials at least three clear days before they are tendered in as evidence.
Mr. Tamakloe is also requesting the court to order the state to provide a list of all the witnesses and summary of witness testimonies before they (witnesses) are called.
He is also praying the court to declare that any document or material the prosecution intends to tender as evidence, but a copy of which has not been given to his client, should be declared inadmissible.
It is his argument that the situation where the documents are given to the accused in court and a witness is called to tender them in goes against the constitution.
Mr. Osafo Buabeng told the court that he would rely on the motions filed in the application before the court and would not go into the details of his prayer to the court.
Evelyn Keelson, a senior state attorney, opposing the two arguments by the defence counsels, noted that the motions are “essentially the same.”
She said she did not know under what rule of evidence the defence lawyers were seeking the prosecution to provide them with documents three clear days before a witness is called.
Ms Keelson said as far as the prosecution was concerned, no issue had risen out of the trial to warrant a constitutional interpretation by the Supreme Court.
She stated that there is no law that requires the prosecution to furnish the defence with documents and witness statements and all the other things the two lawyers were seeking.
She added that the prosecution had complied with all the orders of the court to furnish the defence with documents, saying before the court’s order the prosecution had indicated that since this is a summary trial, they could only give documents to the defence lawyers as and when they have them.
The presiding judge, Justice Kyei Baffour, adjourned the case to February 1, 2018 to rule on the ‘consolidated’ applications.