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Opinions of Wednesday, 26 February 2020

Columnist: Boniface Mensah Jnr

Dr. Opuni/Agongo Trial: All eyes on Justice Clemence Honyenugah

Justice Clemence Honyenugah is also the Paramount Chief of the Nyagbo Traditional Area Justice Clemence Honyenugah is also the Paramount Chief of the Nyagbo Traditional Area

Justice Clemence Honyenugah must step aside for judicial integrity to reign for defiling his position as a Chief and also his office as a Judge!!!

The judicial impunity exhibited by Justice Clemence Honyenugah who doubles as the Paramount Chief of the Nyagbo Traditional Area, Torgbui Ashui Nyagasi V in his partisan public endorsement in the Oti Region of president Nana Addo for 2020 re-election renders him unfit to continue to preside over political cases and also makes him unqualified to stay in his judicial office.

The public outrage and the massive condemnation of his senseless partisan political endorsement of president Nana Addo for 2020 is not enough to pardon him without appropriate sanctions.

We the sovereign people must not allow this impunity and clear violations to stand by any stretch of national accommodation. Ghana’s 1992 Constitution Section (1) of Article 276 states that: “A chief shall not take part in active party politics, and any chief wishing to do so and seeking election to parliament shall abdicate his stool or skin”.

Also, he stands in violation of the Code of Conduct for Judges and Magistrates, that states : “A judge shall not engage in any political activity”.

For it is written…the law reside in the bosom of the Judge(s). And same is true that — opinions and criticism of governance (of which the judiciary is part of) resides in the sovereign will of the people!!!

The rule of law, freedom and justice ought not to be or seen to be overruled by the partisan will of any government through a vindictive political trial. Or any Judge who succumbs to partisan bully or political pressure/undue influence to undermine his/her own conscience, rule of law and or betray the fundamental essence of freedom and justice is worthy of death or irredeemable curse.

It is in this spirit that Justice Clemence Honyenugah must serve as a defense of his own integrity/conscience by recusing himself from the ongoing trial for the full benefit of rule of law, freedom and justice. The judiciary must do its work with integrity to end all forms of vindictive political trial!! And this trial offers this gracious opportunity to do so — and Justice Clemence Honyenugah failed in this regard.

Dr. Stephen Opuni, Mr. Seidu Agongo and Agricult Limited are facing 27 charges, including defrauding by false pretences, willfully causing financial loss to the state, money laundering, corruption by public officer and acting in contravention of the Public Procurement Act.

And they have pleaded not guilty to all charges.

One year on, the trial has welcome in appearance for the State prosecution team — three (3) witnesses: Dr. Franklin Manu Amoah — former Executive Director of Cocoa Research Institute of Ghana (CRIG), Dr. Alfred Arthur, Scientist at Cocoa Research Institute of Ghana and Dr. Yaw Adu-Ampomah, a former Deputy Chief Executive (A&QC) of Ghana Cocoa Board (COCOBOD).

At the heart of this trial and defining it so…is the landmark ruling by the Supreme Court, upon application by the Defence Team that accused persons were entitled to all documents that will be relied on by the prosecution as evidence during the trial. Giving meaning to Article 19(2)(e) and (g) of the 1992 Constitution — the Court upheld that ” non-disclosure by the prosecution is a potent source of injustice. A trial cannot be fair if the prosecution is allowed to keep materials to its chest”.

The Apex Court also ruled that the disclosures were subject to certain conditions as its relevance, the public good, State security among others. By this landmark ruling the Supreme Court set the defining tone for a fair and impartial trial.

It is instructive to note that, consequentially the Accra High Court ordered the Attorney General to furnish the Defence Team within seven (7) days all documents it intended to rely on as evidence during the trial. This was not fully complied with by the Attorney General with the reason that they have filed all documents in their possession at the Court’s Registry and their intention to file other documents as and when they have them. With this the Attorney General does impose extra burden on the Defence Team in accessing documents to adequately prepare for its defense — which is an aberration of justice!!!

The Defence Team mindful of this burden then served a judicial notice that they will rely heavily on applications through Court orders to secure documents to enable its defense. With this, the trial commenced.

A Court order to produce documents to be used as evidence is, in practice, the only procedural tool available to gain access to evidentiary material that is in the possession of another party.

It is my considered opinion that within the objective context of disclosure — this High Court (of Justice Clemence Honyenugah) has largely abandoned its inherent jurisdiction to exercise its discretionary powers to compel individuals and or public institutions/ organizations through orders to gain access to evidentiary materials that are in their possession which are fundamental (in evidence) for its own benefit and guidance in deliverance of impartial justice. And of concern throughout this trial is the exhibition of reluctance disclosure of documents on the part of the prosecution team; tempering with evidence and obstructions by state institutions/organizations solely with the objective aim of undermining the trial.

This trial thus far had not reflected the nature and mood of the ruling delivered in the case in Ref…Effiduase Stool Affairs (No.3) Republic vrs Oduro Nimapua, President of the National House of Chiefs; {1998-99} SCGLR 630 at 670, the court referred to the right to fair trial as one of the basic principles of any civilized system of justice. Acquah JSC (as he then was) on behalf of the Supreme Court said that “a person is entitled to a fair trial from prejudice. No system of justice can be effective unless a fair trial to both sides ensured…This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana”.

Yet throughout this trial the Defence Team’s only facility to gain access to documents relevant to its defense have been to rely profusely on applications through Court orders — imposing the obligation to produce documents and admissibility of same in evidence for the benefit of justice have been denied (by Justice Clemence Honyenugah’s High Court) in key moments (through prosecution’s objections) on grounds of legal technicalities. And more profound it is, when these documents have been filed by COCOBOD on court orders….and by the court’s own admission; the authenticity of these documents are not in doubt.

On July 10, 2019…the Accra High Court upheld an objection by the Prosection Team which denied the defence team (ie, Dr. Opuni and Mr. Agongo) from tendering through prosecution 3rd witness, Dr. Adu-Ampomah, a former Deputy Chief Executive (COCOBOD) a document, titled “Renewal of CRIG certificate for pesticides, fertilizer and spraying machines for January to December, 2015?…signed by a former Deputy Chief Executive Director of Cocoa Research Institute of Ghana (CRIG), Dr. Opoku Ameyaw. This was after the State’s collaborative witness was led in evidence-in-chief in May, 2019 to say that ” there was no record at COCOBOD indicating that any of such Liquid Lithovit Fertilizer has been tested by CRIG”. And reason by the court was that…Dr. Adu-Ampomah was “an inappropriate witness” to tender through the aforementioned document!!!

It also emerged during the trial that official documents in possession of COCOBOD filed in court were tempered with following a Court order informed by the Defence Team’s application. The court took a judicial notice of this major infraction, however, refused the Defence Team the opportunity to tender in evidence the commissioned report by a Committee set up by COCOBOD to investigate the subject matter.

The reason offered by the court was that the “COCOBOD’S Committee report is not a product occasioned directly by the Court order”. Strange!!! Where is the Court’s vested interest in justice??

The question is, Dr. Opuni and Mr. Seidu Agongo are they not entitled to a fair trial from prejudice?

]The fear of miscarriage of justice on grounds of legal technicalities over overwhelming evidence against the state in this trial is real — and now it is becoming obvious the motivation. Stay tuned !!!!