AFRICAN COMMISSION TO HEAR CASE OF FORMER GNPC BOSS

THE African Commission on Human and Peoples’ Rights (ACHPR) has decided to review its decision on the admissibility of the petition filed by former Ghana National Petroleum Corporation (GNPC) Chief Executive, Mr Tsatsu Tsikata against his trial for causing financial loss to the state.
The new decision was as a result of a submission for reconsideration, which the commission received from Mr Tsikata at its 41st Ordinary session held in Accra from May 16-30, 2007.
The submission for reconsideration was in respect of the petition he made in April last year but was dismissed at the commission’s 40th Ordinary session held from November 15-29, last year in Banjul.
A communication to Mr Tsikata dated June 25, 2007 and signed by Dr Feyi Ogunde said the commission’s latest decision was in line with Rule 118 (2) of its Rules of Procedure.
It aid the review would be done during the commission’s 42nd Ordinary session scheduled for November 15-27, 2007.
It said for that purpose the commission would need to receive and consider fresh or additional submissions on the admissibility of the petition from both Mr Tsikata and the Attorney General, who represented the state.
The commission acknowledged the receipt from Mr Tsikata of a submission for reconsideration of its decision in respect of Communication 322/2006, which was emailed on May 27, 2007, a ruling in normal High Court, a Fast Track High Court submission of no case and Fat Track High Court ruling.
The commission turned down Mr Tsikata’s complaint last year and described it as “inadmissible for non-exhaustion of local remedies”.
It said although the complaint presented a prima facie case of a series of violations of the African Charter, a close look at the file and the submissions indicated that Mr Tsikata was yet to exhaust all the local remedies available to him.
In the light of the submissions, the commission noted that Mr Tsikata’s allegations were in respect of an ongoing/unconcluded trial and that information provided by him even stated that the case was still pending before the courts of Ghana.
“Should the ongoing trial end against the complainant’s favour, he has further rights of appeal to the Court of Appeal and the Supreme Court of Ghana, in accordance with articles 137 and 131 of the Constitution of Ghana,” the commission noted.
The former GNPC boss had a brush with the law when, in 2002, the state charged him with three counts of wilfully causing financial loss of about ¢2.3 billion to the state through a loan he, on behalf of the GNPC, guaranteed for Valley Farms and another count of misapplying ¢20 million in public property.
Valley Farms contracted the loan from Caisse Francaise de Developement in 1991 but defaulted in the payment and the GNPC, which acted as the guarantor, was compelled to pay it in 1996.
Tsikata has pleaded not guilty to the charges and is on self-recognisance bail.
He complained to the commission that the charge on which he was being tried constituted a violation of the right against non-retroactive criminalisation under Article 7 (2) of the African Charter and several provisions of the Constitution of Ghana.
He argued that he was being tried for an act which did not constitute a legally punishable offence at the time that it was done.
On April 27, 2006, Mr Tsikata’s 10-page complaint of 36 paragraphs in which he chronicled when he was first arraigned before the circuit court in October 2001, his challenge of the constitutionality of the Fast Track Court and the appointment of a Supreme Court judge purposely to review his case, up to the current stage of the case, was received by the commission.
He stated that the manifest determination of the government to ensure, without any reference to the facts and legal issues, that incarceration was the only possible outcome of the criminal proceedings against him unjustly endangered his liberty.
Consequently, he sought the intervention of the commission and urged it to invoke Rule 111 of its Rules of Procedure on provisional measures and request the Republic of Ghana not to proceed further with his trial until his case had been heard by the commission.
The Attorney-General and Minister of Justice, Mr Ghartey, assisted by Marina Atuobi, Nana Serwah Acheampong, both State Attorneys, and Nicholas Fredua Kwarteng, an Assistant State Attorney, also made a submission in reply to the complaint.
He stated that the guidelines for the submission of such cases provided that each communication should particularly indicate that local remedies had been exhausted and observed that Tsikata failed to provide any evidence of the domestic legal remedies pursued.
The Attorney-General further argued that Tsikata failed to meet the requirement of Article 56 (5) of the African Charter, since he could not show that the procedure in the High Court had been protracted or unduly delayed.
“If, indeed, any delay has been occasioned, it would be due to the complainant’s own repeated request for adjournments and interlocutory appeals,” he said.
After Mr Tsikata’s petition was turned down, the Daily Graphic carried the story, which attracted a reaction from him that after sending the petition he did not hear from the commission again until he read its outcome in the Daily Graphic.
In his latest submission, Mr Tsikata said “The decision of the Commission that my complaint was inadmissible was made without the Commission having had the benefit of any further information or argument on admissibility from me for the simple reason that I did not receive the request from the Commission asking me to submit my arguments on admissibility.
“ The Government of Ghana, however, received their communication from the Commission and the Attorney-General responded and alleged, among other things, that I had not exhausted local remedies before submitting my communication to the Commission. My first indication of any intended communications from the Commission to me was when I read about this in a Ghanaian newspaper in January this year”, he said.
He said that after first reading from the Ghanaian newspaper that the Commission had given a decision declaring his communication inadmissible, he sent the Commission an e-mail on 26th January 2007 seeking official confirmation. “After almost a week, when I still had not had a response and when further claims were made in the newspaper about communications to me from the Commission, I sent a further e-mail to the Commission on 1st February 2007. Subsequently, on 13th February 2007, I received an e-mail with a letter dated 5th February 2007 from the Commission Secretariat notifying me officially of the decision of the Commission”, he noted.
He said he was seeking a re-consideration under Rule 118 (2) of the Rules of Procedure of the Commission of the decision of the Commission that his petition is inadmissible and added that the situation in his case was quite different from the situation the Commission encountered, for instance, in Motale Zacharia Sakwe/Cameroon 230/99 where the Commission noted “that on the surface of the complaint it appears that the complainant did not exhaust domestic remedies”.
Essentially, he said, the decision of the Commission seemed to have turned on the consideration that, while making references to “several recourses to domestic courts for redress”, I gave “no indication of the exhaustion of all available domestic remedies”.
He said after his letter of April 11, 2007 requesting a reconsideration, he received a letter from the Secretariat sent by e-mail, initially on April 24, 2007 and in a revised form on April 26, 2007, requiring him to “forward the new facts on the exhaustion of local remedies which would serve as the basis for re-opening the Communication by 10th May 2007.”
“After a decision of the Supreme Court upholding my challenge I was brought before a “normal High Court”, where my counsel objected to the charge brought against me on the basis that it infringed Article 19(5) of the Constitution which expresses the same principle as Article 7(2) of the African Charter, which read
“A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence” , he said.
According to him, the objection was upheld and the judge indicated that the provision in the Constitution of Ghana was clear in its terms and he did not have to refer the matter to the Supreme Court for interpretation and enforcement.
“My counsel, at the close of the case for the prosecution, again raised, among other issues, the violation of my right not to be charged with, nor convicted of, a criminal offence based on an act which did not constitute a legally punishable offence at the time it was done” he said.
He said his counsel also raised the failure of the prosecution to prove its case beyond reasonable doubt, which reflected the presumption of innocence in Article 7(1) of the African Charter but the trial judge, without giving any reasons, rejected the submission.
“Arriving at a decision of this nature without giving reasons was a denial of my right to a fair trial under the Constitution of Ghana as well as the African Charter. The failure of the trial judge to uphold the submission of no case at the end of the case of the prosecution was a violation of my rights under Article 7 of the African Charter.
“After the decision of the trial judge, I pursued local remedies and my counsel filed an appeal on my behalf to the Court of Appeal. The Court of Appeal, in affirming the decision of the trial judge, based itself on a repealed law as the answer to the submissions of my counsel on retroactive criminalisation”, he stated.
He acknowledged that while recourse to a repealed law which he had not even been charged under would be wrong, the majority decision of the Supreme Court claimed that the decision of the Court of Appeal was not based on the repealed law, which was obviously inconsistent with the record of the Court of Appeal judgement.
Therefore, the Supreme Court, he said, failed to enforce his rights under Articles 7 of the African Charter and again, in the exceptional circumstances where the majority decision even failed to consider the provisions of the Evidence Decree, aggrieved by the decision of the Court, he applied, through his counsel, for a review of the Supreme Court and the review panel, presided over by the Chief Justice (CJ), summarily dismissed the review application.
“By going all the way to Supreme Court of Ghana with the issues, inter alia, of retro-active criminalisation and right to fair trial which should have been enforced by the judge in the High Court upon the submission of no case, I exhausted local remedies in respect of those issues and there is no further domestic recourse available to me, hence my recourse to the Commission.
“Indeed, the Supreme Court compounded the denial of my right to a fair trial under the Charter when they decided that, at the stage of a submission of no case, the standard of proof on which the case for the prosecution should be judged by is not proof beyond reasonable doubt but a “lower standard”. This patently erroneous decision, made by the court without any reference to the statute governing the assessment of evidence in trials in Ghana, the Evidence Decree, itself was an explicit denial to me of “the right to be presumed innocent until proven guilty by a competent court or tribunal” provided for in Article 7(1)(b) of the Charter.