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Opinions of Saturday, 23 August 2008

Columnist: Awuyah, Christian

The Sentencing of Mr. Tsatsu Tsikata: to wrench off an Albatross.

Tsatsu Tsikata is being persecuted in an election year ploy to create distress and unease among the opposition. Where is the evidence that Mr. Tsikata has caused “financial loss to the State and misapplying public property”? Apparently, the state has shown that evidence does not matter nor does procedure. The state has shown that fairness and equality before the law do not matter.

Mr. Tsikata was convicted even when his lawyer was not present in court. Court records showed the judge was informed about the lawyer’s absence. Yet she ordered Mr. Tsikata to make a defense. Court transcripts showed the judge asked Mr. Tsikata to make his defense since the accused is a lawyer by training. Apparently, the judge has passed judgment when there was no trial of the actual crime Mr. Tsikata apparently committed. The actual hearing of the case has not been completed. Until the ruling, the judge has been dealing with procedural matters that Mr. Tsikata has raised, as indeed it is his constitutional right to do so. Instead, the judge threw the book at Mr. Tsikata for mounting a spirited and active defense. The judge talked about the case representing an albatross around her neck. The judgment thus seems to be an act of desperation to wrench off that albatross, rather than the rule of the law.

An impartial trial would have featured the talents of some of the best legal minds in Ghana. Given the nation wide interest in the case, they should have telecasted the court proceedings and serialized the transcripts in newspapers. Instead, the judge jettisoned the proceedings. She preempted critical evidential and discovery stages. Her reasoning is lame and simple. She was fed-up with Mr. Tsikata’s legal challenges and she wanted the pass her sentence. Justice is not apparent in this case. Justice is not transparent here. Justice has not been served in this matter.

Court transcript showed that the judge made her ruling despite of the fact that the defense has brought a critical matter about the case before the highest court of Ghana. The highest court has not yet ruled in the matter. How does the judge assure us that she has not erred when the highest court of the land has not even ruled? Is the judge forcing the hand of the highest court to side with her? The judge is not a clairvoyant and she could not determine how the highest court would rule.

Mr. Tsikata was convicted under a law that was grandfathered. The law on “financial loss” had not been passed when the alleged crime by Mr. Tsikata took place. How do you backdate a law and how far do you go? How can Mr. Tsikata commit a crime for an act that was not criminal at the time he allegedly committed that deed?

A critical part of the case is the absolute immunity of IMC, when in reality they have only limited liability. Apparently, the parent company, IMF, could claim total immunity but not IMC. IMC, a well-respected company, endorsed Mr. Tsikata’s investment decision. Thus, this body’s testimony is critical for Mr. Tsikata defense.

This case reminds me of a soccer game where your opponent maintains that winning is determined only when he or she scores against you. The game would not end until your opponent has a higher goal margin. Such is the analogy for the spate of appointments the government made to the highest court of the land during the course of this trial. Justice has thus become a moving target. Apparently, the government kept on padding the highest court in order to get the ruling it wants.

We have a selective persecution of political adversaries. Is it by accident that only members of a certain party have faced this law? Can Mr. Ghartey, Attorney-General, honestly tell us that no member of the ruling party has violated this law? What about the folding of Ghana Airways, and the gari processing factories. What about the selling of Telecom and commitment of Ghana to a British company for paltry sum. Ghanaians would live by the terms of the transaction for an inordinate amount of time. Why would the state grant immunity to all who have taken part in the Ghana Telecom transaction? Why would there be a need to shuffle and fire ministers when they have all fulfilled their mandates to the highest level. Does it mean that the president would change state agents without cause? Can Mr. Ghartey explain to Ghanaians why he has not brought charges against those who lied under oath about their educational qualification; sold government letters heads regarding visa applications; gave government money to their mistress, and those who smuggle and or attempt to smuggle drugs out of the country?

This law about financial loss to the state is amorphous. It is fraught with draconian yearnings. It is a law that feeds off prevailing political interests. However, it is a law that creates an illusory sense of power. It is a law that bears two sharp edges. It is bound to cut both ways of the political divide. It is a law that has no place in our democracy. Existing statutes are more than adequate to deal with criminal acts by state officials. Politics must have no place in the application of the law.

This case casts an indelible mark on Ghana. It is astonishing the Ghana Bar Association has maintained a deafening silence at this blatant form of political persecution. The bar association was active in the 1990’s as the bastion of legal defense for citizens of Ghana. Today, it appears the bar association is in comatose. In the 1990’s, in the face of glaring acts of injustices, charismatic religious leaders called for fire and brimstone. Today, they are hardly visible behind their tainted car windows and secured perimeters. They have literally insulated themselves behind their fence walls. Mr. Tsikata has not received any justice. His trial is meant to keep the opposition disorganized and dispirited. My hope is that any new administration, regardless. would commit itself to ensure that the law must not become subject to Machiavellian political machinations. Our democracy is weakened, not strengthen, by such subjective application of the law.

Awuyah, Christian