IFC
Country Director can testify without
compromising acts - Tsikata
Accra, Dec. 5, GNA - Prof. Emmanuel Victor O.
Dankwa, lead Attorney for Tsatsu Tsikata, a
Former Chief Executive of the Ghana National
Petroleum Corporation (GNPC), on Monday told the
Court of Appeal that the Country Director for
the International Finance Corporation (IFC)
could testify without compromising her official
acts.
"The Country Director can give evidence about
the transaction without any immunity in respect
of her official acts being compromised," Prof.
Dankwa said. “She is not being made liable for
anything whether done by her or by anybody in
the IFC.”
Prof. Dankwa made the submission on behalf of
his client in a substantive appeal to order the
IFC to go and testify and produce various
documents about the Valley Farms Project.
One of the two appeals before the Court of
Appeal filed by Tsitaka, which sought to order
the IFC to be part of the substantive appeal,
was unanimously dismissed on November 29 by the
Court of Appeal.
Prof. Dankwa said there was obviously no
immunity in respect of acts of consultants of
the IFC and their reports and other documents,
as recognized by the trial judge at the Fast
Track Court (FTC).
He said it was incumbent on the IFC to testify
about the role, if any, of the previous Country
Director if this was to be a matter they wished
to rely on.
"In reality, there was no IFC Country Director
in Ghana at the time as the IFC only opened an
office in Ghana with a Country Director long
after that transaction."
According to him, the evidence before the trial
court was of consultants working for the APDF,
which was the body directly involved in the
transaction, saying a letter signed by one Wally
Daniels confirmed no Country Director role in
question.
Prof. Dankwa stated that the APDF Consultants
and other officials could be part of the legal
process even on the argument of the trial judge,
since they were not among officials of IFC, who
were covered by the provisions of Section 8 of
Article VI of Legislative Notification (LN) 9.
"As such even if the current Country Director
could not testify about acts of a former Country
Director, he or she could testify about acts and
reports of the APDF officials who worked on the
project without compromising any immunity of
officials of the IFC".
The Attorney submitted that even if it were
right that official acts of previous IFC staff
could not be the subject of evidence on a
subpoena, the acts of the consultants, who
worked on the Valley Farms transaction as well
as the APDF officials, could be subject of
testimony from the Country Director under the
subpoena.
Panel members are My Justice S.E, Kanyoke
(Presiding); Mr Justice F. Kusi-Appiah and Mr
Justice Annin Yeboah.
Tsikata is faced with three counts of charges at
the FTC for wilfully causing financial loss of
2.3 billion cedis to the State through a loan
he, on behalf of GNPC, guaranteed for Valley
Farms. He is also facing another count of
misapplying public property.
Valley Farms contracted the loan from Caisse
Française de Dévéloppement in 1991, but
defaulted in the payment, compelling GNPC, which
acted as the guarantor, to pay it in 1996.
Tsikata is charged with three counts of wilfully
causing financial loss of 2.3 billion cedis to
the State through a loan he, on behalf of GNPC,
guaranteed for Valley Farms and another count of
misapplying public property.
In his submission, Prof. Dankwa stated: "A
person charged with a criminal offence shall be
afforded facilities to examine, in person or by
his lawyer, the witnesses called by the
Prosecution before the court, and to obtain the
attendance and carry out the examination of
witnesses to testify on the same conditions as
those applicable to witnesses called by the
Prosecution".
He noted that the trial judge, for instance,
took no evidence on the basis of which to hold
that the process in respect of which the Country
Director of IFC was required to testify and
produce documents was an "official act" of the
Country Director.
The Attorney noted further that even if it were
the case that official acts of the previous
Country Director in his official capacity could
not be the subject of testimony by the current
Country Director, there was no bar to testimony
about acts done by consultants for the IFC.
"In this case there would need to be evidence
about the relationship between the IFC and the
APDF and proof that the Country Director of the
IFC indeed worked as a part of the APDF team on
the Valley Farms project at the time to justify
invocation of Section 8 of Article VI of LN 9,
in respect of his acts", he said.
The Attorney said in the trial judge's ruling
she presumed that the records of IFC on Valley
Farms were in the archives and that those
documents which were to be tendered were dealt
with almost 20 years ago.
"It could safely be presumed that they are
inviolable as prescribed by Section 5 of
Legislative Notification (LN) 9 of 1958", he
added.
He contended, therefore, that the judge, in
invoking a presumption to this effect as a
substitute for evidence, acted in clear breach
of the provisions of the Evidence Decree, which
she was bound to apply. "There was no basis for
the trial judge to make such a presumption.”
Prof. Dankwa averred that the trial judge at the
Fast Track Court erred in failing to recognize
and enforce the fundamental human right of the
accused person, as expressed in clear mandatory
language in Article 19(2)(g) of the 1992
Constitution.
He explained that the article was "to obtain the
attendance and carry out the examination of
witnesses to testify on the same conditions as
those applicable to witnesses called by the
Prosecution".
He said no IFC immunity was provided for in the
Constitution, and that the nature of the
immunity of the IFC could not be put on the same
pedestal as the immunity of the President.
Prof. Dankwa said the Act and the Legislative
Notification, in which the provisions on
immunity were contained, could not override the
Constitution.
He said the trial judge erred in failing to
appreciate that no violation of archives of the
IFC could be occasioned by an order of the court
for the Country Director to provide testimony
and produce documents in respect of the IFC role
in the Valley Farms project.
The Attorney said the presiding judge at the
lower court, erred in failing to appreciate that
there was no evidence that any documents
requested by the Defence were in the archives of
the IFC.
"The Country Director has the burden of
producing evidence and satisfying the court on
these preliminary facts under the Evidence
Decree.”
He said the judge erred in failing to appreciate
that the grant of immunity by the court had made
for the Country Director to come and testify was
a denial of the right of the accused to a fair
hearing under Article 19(1) of the
Constitution".
Prof. Dankwa argued that just as the Prosecution
was able to call its witnesses, Defence should
also be given the chance for witnesses with
relevant evidence to go and testify
Mrs Gertrude Aikins, Chief State Attorney,
appeared for the Republic.
Submissions continue on Tuesday, December 5.
GNA
