ACUIT MY CLIENT, PLEADS COUNSEL

COUNSEL for Alhaji Abass last Thursday urged the Accra Fast Track High Court to acquit and discharge his client of the narcotic charges because the law under which he has been charged is unconstitutional.
According to Mr Osafo Buaben, the counsel, Section 56 (c) of PNDCL 236, the law under which his client had been charged, was unconstitutional because it did not define the offences it created.
The law, he said, states that “Any person who abets or engages in a criminal conspiracy to commit any offence under this law ... is guilty and liable to punishment.”
In his submission of “no case”, Mr Buaben cited Section 173 of Act 30, which called for the acquittal of accused persons if insufficient proof of wrongdoing was established against them and stated that the prosecution woefully failed to establish any case for which the accused person should be called to answer.
He said in effect the law created an offence of abetment and criminal conspiracy but did not define what those were.
“That is in contravention of Article 19 (11) of the Constitution that no person shall be convicted of a criminal offence unless the offence is defined and the penalty(ies) of which is/are prescribed. The evidence is unreliable and has been so discredited during cross-examination that no tribunal will sustain it to convict,” counsel said.
The prosecution closed the case after calling 11 witnesses in the case in which Kwabena Amaning, alias Tagor, and Alhaji Abass are being tried for their role in the missing 76 parcels of cocaine on board the MV Benjamin.
It said, however, that the cocaine was stolen in April last year before the security agencies intercepted the vessel at the Tema Port.
Tagor is facing four counts of conspiracy, engaging in prohibited business related to narcotic drugs, buying of narcotic drugs and supplying narcotic drugs, while Alhaji Issah Abass faces two counts of conspiracy and supply of narcotic drugs.
They have pleaded not guilty to all the counts and have been refused bail by the court.
Initially Kwabena Acheampong, Tagor, Alhaji Issah Abass, Victor Kisseh, alias Yaw Billah, and Alhaji Moro Mohammed were arraigned at the Accra Circuit Court for allegedly dealing in narcotic drugs.
Some of them were said to have engaged in a conversation relating to the missing cocaine at the residence of ACP Kofi Boakye, the subject of which led to the setting up of the Justice Georgina Wood Committee.
However, on Wednesday, November 22, 2006, the prosecution entered a nolle prosequi (not willing to prosecute), resulting in the discharge of the accused persons, but fresh charges were preferred against Tagor and Abass, leading to their appearance at the Fast Track High Court.
Mr Buaben stated that the case could be distinguished from the various cases of wilfully causing financial loss to the state in which the authorities were certain that the word ‘wilful’ was not defined.
Counsel argued that quite apart from that law, the case was based on a recorded conversation that took place in ACP Boakye’s house in which there was no shred of evidence that the accused persons said they were going to look for the missing cocaine and enjoy the benefits.
He said Kwabena Acheampong, who participated in the said conversation and also testified for the prosecution, had said that during the conversation ACP Boakye had told them to put their ears on the ground.
Moreover, counsel said the other prosecution witnesses did not lead evidence on the particulars of the offence that the accused persons agreed to enjoy the benefits of the missing cocaine.
According to him, the police investigator, Inspector Charles Adabah, for instance, told the court that he relied on the recorded conversation to conduct his investigations but he never led evidence on the sort of co-operation among the accused persons for them to enjoy the benefits from the cocaine.
“The prosecution has no faith in this conspiracy charge and that is why ACP Boakye and the others who took part in the conversation were not charged,” counsel said, and added that nowhere in that conversation did the accused persons agree that they were going to co-operate to find the missing cocaine and then jointly enjoy it.
Counsel said further that PNDCL 236 stated that there must be a person who had undertaken an activity, the purpose of which was to establish either an enterprise or promote an enterprise relating to narcotic drugs without lawful authority.
He said what constituted narcotic drugs was defined in the law, saying that in the instant case a prosecution witness had told the court that for something to qualify to be called cocaine it must have been scientifically tested and proven, which was lacking in the case.
Mr Buaben said the framers of the law envisaged that problem and that was why they did what they did, arguing that none of the 11 witnesses called by the prosecution said the accused persons promoted narcotic drugs or engaged in that activity as prescribed by the law.
He said the charge was also based on the accused person having admitted to engaging in narcotic drugs and said there was no shred of evidence to the effect that the accused persons promoted an enterprise relating to narcotic drugs and that the recorded conversation and its transcript referred to the word ‘goods’ and not cocaine, as the prosecution was making the court to believe.
Counsel said it was not for anyone to say that ‘goods’ referred to cocaine because that would amount to speculation and, therefore, it would not be proper to sustain a conviction on the basis of a statement by the investigator that those in the narcotics business referred to cocaine as ‘goods’.
He said the accused could not be charged on the basis of admitting having supplied cocaine because a confession evidence could not sustain a conviction unless it was corroborated by an independent witness.
Mr Buaben said the charges were based on the recorded conversation, arguing that that was not enough for a conviction unless the prosecution went beyond that to call other material witnesses to corroborate that evidence.
Hearing is adjourned to June 21 for the prosecution to reply to the submissions made by the defence.