At The Tsatsu Tsikata Trial

By William Yaw Owusu

Friday, 08 December 2006
THE Court of Appeal will on December 19, decide on whether or not to order the International Finance Corporation (IFC) to testify at an Accra Fast Track High Court where Mr Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation, is standing trial for allegedly causing financial loss to the state.

The three-member panel chaired by Mr Justice S.E. Kanyoke, took the decision after Professor E.V.O. Dankwa;, counsel for Mr Tsikata, the appellant, and Ms Getrude Aikins, Chief State Attorney, who represented the state, had completed their arguments.


Arguing that the IFC be brought to the Fast Track Court to testify at the instance of his client, Prof. Dankwa said Article 19 (2) (g) of the national consitution directs that a person charged with an offence should be given the necessary facilities to be able to put up a defence and noted that the IFC’s unwillingness to come to the trial court was an infringement on the fundamental rights of the accused.


He said the IFC’s defence that it was “immune” from the processes of the country’s courts, which was upheld by the trial court, could not hold because Sections 9 and 11 of the Evidence Decree puts the burden of producing evidence on the IFC.


“Failure to discharge the burden of proof is fatal to the immunity claim of the IFC,” he said adding, the country “Director of the IFC can give evidence about the Valley Farms issue without any immunity in respect of the official acts being compromised.”


Prof. Dankwa further argued that there was no justification for the trial judge to ignore Article 19 (2) (g) which, he said, imposed on the court the duty to invite witnesses.


“The acts of the IFC cannot derogate the provisions of the Constitution, especially with respect to Fundamental Human Rights,” he contended.


For her part, Ms Aikins said the trial court determined the immunity issues as provided by law.


“There is evidence on record where the IFC, prosecution and the defence came to the court to exhaustively argue this immunity issue.”


She said sections 3(3) of the Evidence Decree 1975 spells out clearly what should be done and the trial court carefully followed that.


The submission by Mr Tsikata that assistance sought must be acts performed directly by the IFC Country Director in his official capacity she said could not hold because “the plain meaning of the section under the IFC statutes is that the employees shall be immuned from the court processes.”


Ms Aikins argued that where an employee of the IFC is to appear before a court, the immunity clause needed to be revoked. But the IFC, since the trial court issued the subpoena, had indicated that they were not ready to waive that immunity under the Legislative Notification 9 of 1958.


She argued further that Article 19 cited by Mr Tsikata could not hold because Article 14 (1) (a to g) spelt out the limitations of the absolute enjoyment of such conditions.


“IFC is only a legal entity which can sue and be sued but it can act through its officers and unfortunately such officers have statutory immunity.”


Ms Aikins said unless the immunity was waived, the acceptance of any court processes will be an infringement on the LN9.


The special preconditions spelt out under the LN9 over the issue of immunity did not cover what the appellant sought, she stated.


The panel, which also included Justice F. Kusi Appiah and Annim Yeboah, had earlier on dismissed an interlocutory appeal by Mr Tsikata to make the IFC a necessary party to the substantive appeal process.