In The Matter of The Republic Vrs Tsatsu Tsikata

IFC HAS NO
IMMUNITY
…Supreme Court Declares

…Justice Abban, Appeal Court Were Wrong

By J. Ato Kobbie, Managing Editor

The Supreme Court of Ghana, Wednesday held by a unanimous decision that the
International Finance Corporation (IFC), has no immunity and therefore amenable
to the laws of Ghana, thereby upholding an appeal by Tsatsu Tsikata, former CEO
of the Ghana National Petroleum Corporation (GNPC).
The five-member panel, comprising Justices William Atuguba, presiding, Sophia
Akuffo, Samuel Kwadwo Asiamah, Sophia Adjeibea Adinyira and Vida Akoto-Bamfoe,
all affirmed that both the High Court, presided over by Justice Henrietta Abban
and the Appeal court were wrong in not granting Tsikata’s request to have the
IFC subpoenaed to come and testify in his trial.
Tsikata, who was standing trial before the fast track court was convicted and
jailed on June 18, 2008 by the presiding judge Mrs. Justice Abban, at a time an
appeal by Tsikata was pending at the Supreme Court. The decision means Tsatsu
Tsikata did not get a fair trial and his human rights were trampled upon
contrary to Article 19 of the 1992 Constitution, which requires that accused
persons are granted the opportunity to defend themselves and adduce evidence
without hindrance.
Justice Abban, who had stayed proceedings at the high court since December 20th
2006, when she was first notified of the appeal at the highest court of the
land, “so that there would not be a trial or miscarriage of justice,” in the
event that the Supreme Court upheld the appeal, rescinded her decision on June
18, 2007 convicted, and jailed the former GNPC boss.
The panel was however, split in its decision regarding the immunity of directors
and officers of the IFC, where it held by a three-to-two decision that these
officials, like diplomats and in conformity with international treaties and
conventions to which Ghana subscribe, immune from judicial processes in Ghana.
Justice William Attuguba, who read the first ruling to which Justice
Akoto-Bamfoe associated herself, declared that the IFC, together with its
directors and officials were all amenable to judicial processes of Ghana and
therefore were compellable witnesses.

The second ruling, which was read by Justice Adinyira, and shared by Justice
Akuffo and Julius Ansah, however declared that with the exception of the IFC,
the directors and officials are immune from court processes.
Justice Adinyira argued that the Appellant’s Constitutional rights and
privileges were limited by the rights and privileges of others and therefore the
IFC Country Director’s claim of right to immunity must be respected.

The panel was reconstituted in May 2010, with Justices Sophia Akuffo and Vida
Akoto – Bamfoe, replacing Justice Alan Brobbey, who recused himself from the
original panel, and Justice Samuel Kwadwo Asiamah, who retired.

THE APPEAL
In his grounds of appeal, Professor Emmanuel Victor Oware Dankwa, counsel for
Tsikata, had submitted that the Court of Appeal erred by relying on the
statutory provision conferring immunity of the International Monetary Fund (IMF)
from judicial process, to uphold the immunity claims of the IFC
Prof. Dankwa argued further that by that grave error of using a statutory
provision on the immunity of the IMF, when the case concerned the IFC, the Court
of Appeal erred, thereby denying his client the constitutional rights to a fair
trail, by denying him the opportunity to have his witness heard.
Tsikata’s counsel submitted further that the Appeal Court failed to appreciate
that the High Court, having issued a subpoena to the IFC Country Director to
attend court to give evidence and produce documents, was misled to set aside
that order by counsel for the IFC, who cited a statutory provision relating to
the IMF.
Mr. Tsikata, who was standing trial on three counts of causing financial loss to
the state and one count of intentionally misapplying public property, sought
from the Supreme Court a reversal of a ruling by the Appeal Court o December 19
2006, which endorsed the IFC’s claim of immunity from appearing before any court
in Ghana.
However, on June 18th, 2001, a week before the date the Supreme Court had fixed
to deliver its ruling on whether or not the IFC could be prevailed upon to
appear in court to testify in the case, Mrs. Justice Abban, an Appeal Court
judge presiding over the trial at the Fast Track High Court, convicted the
former GNPC boss, declaring that litigation must come to an end.
She sentenced Tsikata to five years imprisonment on each of the four counts on
which he was charged.
Tsikata subsequently moved a motion at the Supreme Court (SC) for the court to
exercise its supervisory jurisdiction to quash the judgment of Mrs. Justice
Henrietta Abban on June 18th, 2008.
Mr. Tsikata also asked the Supreme Court to arrest this judgment on the appeal
on whether the IFC, the private sector arm of the World Bank Group, was amenable
to the jurisdiction of the court of Ghana or not.
He argued before the court that the decision by justice Abban not to await the
Supreme Court decision on the IFC immunity, as she herself had previously
determined, undermined the authority of the Supreme Court and amounted to
disrespect and a slap in its face.
Tsikata argued that this was more so as the trial judge herself had indicated
that failure to await the Supreme Court decision could lead to a mistrial or
miscarriage of Justice.
Tsikata further argued that Mrs. Justice Abban acted in breach of Article 296
(a) of the 1992 Constitution to be fair and candid in the exercise of her
discretionary power and committed patent errors of law in making the decisions
and determinations prior to delivering her judgment convicting him.
The former GNPC boss further told the Supreme Court that Justice Abban had
violated her constitutional right of determining who represented her in court by
insisting that he represented himself in curt because he was a lawyer.
The then Attorney – General, Mr. Joe Ghartey, opposed the Appellant’s arguments.
GNPC, under Mr. Tsikata, guaranteed a loan for valley Farms, which was into high
grade cocoa plantations, on the advice of Merchant Bank. However, Valley Farms
defaulted in repaying the loan and GNPC, as guarantors, were called upon to pay.

Tsikata was represented in court by Prof. E. V. O. Dankwa, whilst the state had
Mrs. Merley Wood.