Crime & Punishment of Friday, 1 April 2005
PROSECUTION UNDERMINES OWN CASE?
The trial of Ms. Sherry Ayittey and two others in connection with the divestiture of the Ghana Rubber Estates Limited (GREL) finally ended and Mr. Justice J. C. Amonoo-Monney, Justice of the Court of Appeal sitting as an additional High Court Judge, has fixed Thursday April 21, 2005 for judgement.
The final act in the politico-judicial drama was played out in the filing of addresses by the defence and the prosecution, with counsel for Ms. Ayittey taking the near unprecedented step of also filing a response/reply to the prosecution?s address.
It will be recalled that at the end of the case for the prosecution, the fouth accused person, Mrs. Sati Ocran, was acquitted and discharged upon a submission of no case.
Ms. Sherry Ayittey, Projects and Programmes Officer of the 31st December Women?s Movement (31st DWM), Mr. Emmanuel Agbodo, Executive Secretary of the Divestiture Implementation Committee (DIC) and Mr. Ralph Casely-Hayford, businessman, were called upon to open their defence on three counts relating to corruption only. All the other four charges were dismissed.
In his written address, counsel for Ms. Ayittey, Mr. D. O. Lamptey, argued that Ms. Ayittey?s co-opted membership of the DIC did not make her a ?public officer? in respect of whom the offence of ?corruption by a public officer? could lie.
He further argued that even if she was a public officer, then she only became one in April 1998 when she was appointed a co-opted member of the DIC, whilst the divestiture of GREL took place in 1996.
Counsel also argued that there was a variance between the evidence of the prosecution witnesses and the charges in the prosecution?s counts. For example, whereas the offence of corruption required that Ms. Ayittey corruptly abused her office for private benefit, the prosecution witnesses? own evidence was that whatever monies were paid to her was meant for the 31st DWM for their projects in the rural areas.
This was so in all three cases where amounts of $120,000, $180,000 and ?150,000 were allegedly paid to Ms. Ayittey.
Even with regards to those payments, Mr. Lamptey argued forcefully that they were never made in two of the cases, stressing that by their own admissions, the two prosecution witnesses who gave that evidence stole the money from GREL through fraudulent transactions.
He argued further that the amount of $180,000 was receipted in the books of the 31st DWM; there was no evidence that the amount of $120,000 was ever given to Ms. Ayittey apart from the uncorroborated evidence of a prosecution witness who was a self-confessed co-conspirator; and doubted the authenticity of the documentation with which it was sought to prove that ?150,000 had been transferred to Ms. Ayittey?s alleged account in Austria.
Mr. Lamptey also argued that doubts had been cast on the prosecution?s allegation that Ms. Ayittey travelled to Paris to meet with officials of SIPH/SODECI, the French Company seeking the divestiture of GREL, where the bribery payments were allegedly discussed and wondered why no official of the French Company was called to give evidence.
In rebuttal, the Director of Public Prosecutions (DPP), Mr. Osafo-Sampong, in his written Address, insisted that Ms. Ayittey was a public officer, even though she was appointed a co-opted member of the DIC in April 1998 by which time GREL had long been divested in 1996. The DPP did not provide any legal arguments for this strange conclusion.
The DPP also insisted that the payments mentioned in the charges were made to Ms. Ayittey, relying solely on the uncorroborated evidence of self-confessed accomplices who the prosecution preferred to use as prosecution witnesses.
In a rather bizarre conclusion, the DPP submitted that before Ms. Ayittey was appointed to the Board of the DIC, she had already promised to influence the divestiture of GREL in favour of SIPH/SODECI! But GREL had been divested before she was appointed to the Board.
In a bid to introduce extraneous matters into the case and as a typical example of the political nature of the trial, the DPP submitted that the first accused ?is a close friend of the former first family and therefore does not need to be announced wherever she visited them. The former President had virtually the final say as to how the bid should go?.
Also in a remarkable shift of grounds, and as if unsure of the strength of his own case, the DPP submitted that under section 247 of the Criminal Code, 1960, Act 29, even if the prosecution?s evidence does not support the charge of corruption, it does support the charge of ?extortion? and called on the court to exercise its power under section 155(2) of the Criminal Procedure Code, 1960, Act 30, to convict her.
In yet another incredible admission, the DPP conceded that the evidence of the most critical prosecution witnesses may appear tainted but insisted that ?they are credible witnesses and must be believed?.
With respect to the second accused person, Emmanuel Agbodo, the DPP simply submitted that the testimony of the Dr. Albert Barnarfo that he gave a bribe of ?25 million to him was more credible than the testimony of Agbodo himself that he received a Christmas parcel which contained ?5 million among other things from the witness.
The DPP?s only reason was that in 1996, it was not normal to give a Christmas parcel of ?5 million as alleged by Mr. Agbodo.
The DPP did not address on the 3rd accused person, Mr. Ralph Casely-Hayford.
In his response/reply, Mr. D. O. Lamptey tore into the DPP?s address. On the ?latter day request? for the court to substitute a conviction for extortion for the charge of corruption against Ms. Ayittey, Mr. Lamptey argued as follows inter alia:
(i) There was no evidence that Ms. Ayittey ever ?demanded? or ?obtained? any monies from any of the prosecution witnesses ?under colour of her office?, all essential elements in the offence of extortion;
(ii) The GREL divestiture was in 1996; Ms. Ayittey was appointed a co-opted member of the DIC in April 1998, so why was she charged for doing acts in 1998, if she did, when the divestiture had already taken place in 1996?
(iii) The court had earlier ruled that in 1996 when the GREL divestiture took place, Ms. Ayittey was not a public officer;
(iv) ?When did the ?demand or obtain? take place; was it in 1998 when there was no divestiture of GREL or prior to 1998 when 1st accused was not a public officer?, Mr. D. O. Lamptey quipped;
(v) With respect to the ?150,000, no evidence was led to show that Ms. Ayittey had a personal account in Austria into which the money was allegedly transferred.
Mr. Lamptey also submitted that the prosecution?s two critical witnesses, Dr. Albert Barnarfo and Ms. Georgina Okaiteye were ?self-confessed criminals?, having been given monies to give to the 31st DWM which they kept for themselves, telling lies in their statements to the police; and forging invoices to siphon monies from GREL?s accounts.
Mr. Lamptey described another prosecution witness, Mr. Popelier, as a believer in 419 scam who stole $618,000 from GREL?s accounts and allegedly invested it in a 419 scam, dealing with people whose credentials he did not know.
Mr. Popelier also implicated Dr. Barnarfo and SIPH in his money laundering schemes.
Commenting on the DPP?s attempts to drag the name of the former President into the case, Mr. D. O. Lamptey said he found the insinuation to be uncalled for and unfortunate.
According to him, ?the former President had functions imposed by law to perform, and that the former President had nothing to do with the so called three conditions?.
At the end of it all, many of the trial observers believed that the DPP had shot himself in the foot and seriously undermined his own case. Whether the learned trial judge will agree with this view or not will be known when judgement is finally delivered on 21st April 2005.