Wednesday, August 11, 2010

Tarzan, Mpiani Freed

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Dr. Charles Wereko Brobby and Mr Kwadwo O. Mpiani were standing trial for causing financial loss to the state

By William Yaw Owusu

Wednesday August 11, 2010
An Accra Fast Track High Court yesterday stopped another NDC attempt to prosecute Dr. Charles Yves Wereko-Brobby aka Tarzan and Kwadwo Okyere Mpiani for causing financial loss to the state in the matters of Ghana@50.

The court held that the Attorney General’s attempt to prosecute the two men “would lead to judicial absurdity”.

In his ruling, which lasted an hour and nine minutes, Mr. Justice Samuel Marful-Sau, Court of Appeal judge, described the Attorney General’s action as “unconstitutional” and said the action was an “abuse of the AG’s powers under Article 88 of the 1992 Constitution.”

The court said the prosecution of Dr.Wereko-Brobby and Mr. Mpiani was based on the white paper issued by the government after the Ghana @ 50 Commission of Enquiry report adding that the Constitution frowned on any attempt to mount criminal proceedings against any person who testified before a Commission of Enquiry and the prosecution was based on adverse findings of that Commission.

The judge said the essence of a Commission of Enquiry was to afford the President the opportunity to establish an independent body to investigate any wrongdoing and make adverse findings. Once the President went ahead to issue a White Paper, the findings became a judgment of a High Court.

“If the intention is to prosecute public officials then the way to go is not to use findings of a Commission of Enquiry. The state is at liberty to use the traditional way of prosecuting public officials so that the AG can exercise the powers rightly,” the presiding Judge said.

The latest ruling has dealt a big blow to National Democratic Congress (NDC) government as it makes strenuous efforts to fulfill their campaign promise of prosecuting New Patriotic Party (NPP) appointees and sympathizers under the Kufuor administration.

Within a week, the government has suffered major losses in the court in its attempt to cage NPP people to satisfy its supporters. The opposition has always maintained that the charges preferred against it are politically motivated.

It started with the acquittal and discharge of Zulieka Asamoah-Boateng, wife of Stephen Asamoah-Boateng, former Minister of Information, by an Accra Circuit Court on August 4, 2010. An ace actress, Grace Omaboe, aka Maame Dokono, was also freed two days after Zulieka by another Circuit Court.

Dr. Wereko-Brobby, a former Chief Executive Officer of the defunct Ghana @50 Secretariat and Mr. Mpiani, former Chief of Staff in the NPP administration and Chairman of the National Planning Committee for the celebration were put on trial for the various roles they played during the 50th Independence Anniversary and the 2007 African Union Summit hosted by Ghana.

In reaction, the two NPP stalwarts filed separate motions that the charges against them by the state “are a violation of their constitutional right under Articles 278 (1) (a) and 280 (1) (2) (3) (4) (5) (6) of the 1992 Constitution.” The state insisted the two men had a case to answer in the Ghana @ 50 celebrations.

The court said since the 1992 Constitution made it clear that the Ghana @ 50 Commission of Enquiry report was a judgment of the High Court, it is impossible for the court to review its own judgement saying “by the time the prosecution initiated these proceedings, the finding was already a judgement of the High Court.

“This trial will amount to a High Court evaluating its own judgement, a duty reserved for the Court of Appeal. This court has no jurisdiction to review the Commission’s findings since it is the work of the Court of Appeal.

“Even though the AG has the powers to prosecute under Article 88 of the 1992 Constitution, going by the same constitution, the AG is not required to take any step to initiate criminal proceedings against the applicants since the prosecution is being mounted based on the Commission’s report,” Justice Marful-Sau said.

The court held that the constitution guarantees the right of appeal to persons who a Commission of Enquiry has made adverse findings against and since Dr. Wereko-Brobby and Mr. Mpiani were no exception, “the absence of court rules to regulate the commission does not take away their right to appeal. The persons affected by the adverse findings should have the right to appeal.”

The Judge said the prosecution’s action violates defendants’ fundamental rights under the Constitution. “The findings of the Commission should not develop into a criminal trial. What the prosecution is seeking to do is unconstitutional.”

The court said the terms of reference of the Ghana @ 50 Commission of Enquiry were clear that the Ghana @ 50 Secretariat was the subject matter and not Dr. Wereko-Brobby or Mr. Mpiani, adding that the two men were there as witnesses and could not have been the subject matter.

“The AG is legally wrong to mount this prosecution. I will sustain this application and discharge them accordingly.”

Justice Marful-Sau quoted Acts 25: 8-12 to buttress the point that Dr. Wereko-Brobby and Mr. Mpiani should be allowed to exercise their right to appeal against the Commission’s findings.

When the judge concluded his ruling, Anthony Gyambiby, Chief State Attorney who was to prosecute the case said “this is a well reasoned ruling. It goes to confirm that rule of law and democracy is deepening in Ghana”.

For his part Akoto Ampaw, counsel for Dr. Wereko-Brobby said “this should inform the AG’s office that we must always try to follow the dictates of the constitution.”

Yoni Kulendi, representing Mr. Mpiani added “we are extremely grateful. This is a very useful guidance for us as a society”.

After the proceedings, some sympathizers of the two NPP men jubilated and gave thanks to God amid pouring powder on an elated Mr. Mpiani to signify victory.

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