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General News
Tsikata writes to African Commission on Human 2/5/2007
Accra, Feb. 4 GNA - The following is the full text of a statement Mr Tsatsu Tsikata, Former Chief Executive of the Ghana National Petroleum Corporation, made available to the GNA on a petition he sent to the African Commission on Human and Peoples'' Rights:

"Mr Tsatsu Tsikata, Former Chief of Ghana National Petroleum Corporation, has written to African Commission on Human and People''s Rights expressing surprise at a newspaper report that the Commission had given a decision in respect of a communication he had sent to the Commission.

"In an e-mail to the Commission dated 26th January 2007, Mr Tsikata states that since he sent his communication by e-mail in April 2006 he had not even received an acknowledgment of receipt from the Commission.

"He had telephoned the Commission last year to find out if the communication had been received and was informed by the official then acting as Secretary, Mr Holaki, that he would be sent an acknowledgment of receipt once the Commission received my submission. He however, never received an acknowledgment of receipt nor was he notified of any further steps in respect of the matter. In particular, he was not aware that the Attorney-General of Ghana had raised a preliminary objection nor that there would be consideration of the matter at a meeting at which the Attorney-General and his team would be present.

"According to Mr Tsikata, it was his intention to send a supplement to his communication dated 23rd April 2006 which would certainly have addressed what appears to have been the preliminary objection raised by the Attorney-General and which would have "made it clear that the objection was without any merit whatsoever. "Mr Tsikata requests, as a matter of urgency, to be furnished with a copy of the decision of the Commission if indeed there has been a decision". He also asks for a copy of the notice of the preliminary objection raised by the Attorney-General of Ghana.

"In Mr Tsikata''s 38-paragraph communication to the Commission of 23rd April 2006, he states that, contrary to the African Charter on Human and Peoples'' Rights, he is being tried for an act which did not constitute a legally punishable offence at the time it was done. He also states that, in the course of his trial, he is being denied the right to fair trial provided for in Article 7(1) of the Charter by, for instance, being denied the right in Article 7(1)(b) of the Charter to be presumed innocent until proven guilty by a competent court or tribunal.

"Mr Tsikata recounts how he was first arraigned before a Circuit Tribunal in October 2001. The Attorney-General withdrew those proceedings only for him to be served a summons 91In the name of the President'' to appear before the 91Fast Track Court''. Mr Tsikata recounts how, through Counsel, he issued a writ in the Supreme Court of Ghana challenging the constitutionality of the 91Fast Track Court'' and also of the summons 91In the name of the President''. After a majority (5-4) decision in his favour on 28 February 2002, the President, who was then out of the country, had declared, through a Spokesperson, that the decision was 91strange'' and instructed the Attorney-General 91to use all legal means'' to have it reversed.

"Mr Tsikata indicates in the communication to the African Commission that the day after the Supreme Court decision, on 1st March 2002, he was again charged before a normal High Court. His Counsel objected to the charge on the grounds that he could not be charged with an offence which at the time of the act charged did not constitute an offence since the Constitution of Ghana in Article 19(5) prohibits retroactive criminalisation in terms similar to Article 7(2) of the African Charter. The objection was upheld by the High Court and the charge against Mr Tsikata was struck out on 15th March 2002.

"According to Mr Tsikata, there was an attempt by the Police on Sunday 17th March 2002 to arrest him at a church where he worships though later that day a Police Public Relations Spokesman issued a statement that the Police did not need him. Paragraph 12 of the communication of April 26, 2006 then goes on: 91By this time, the President had returned to Ghana and a press release was issued from the Office of the Minister of Presidential Affairs stating that at the request of the Chief Justice the President had nominated a new Justice of the Supreme court ''for the purpose of the review''" of the earlier Supreme Court decision in Mr Tsikata''s favour.

"Reference is also made to how, during the swearing in of the newly appointed Justice of the Supreme Court, 91the President went out of his way to make statements by way of ''advice'' to the newly-appointed Justice which were clearly prejudicial to the case which he had been appointed purposely for, thus compromising the independence and impartiality of the Judiciary before which my case was pending.'' (Paragraph 13)

"Mr Tsikata states that the manner in which the new Justice was appointed by the President for the purpose of the review has been the subject of adverse comment during the review that the African Peer Review Mechanism conducted on Ghana and contends that in both the manner of the appointment of the new Justice of the Supreme Court and in the conduct of the Executive towards the Judiciary in relation to his case there has been an infringement of Article 26 of the African Charter on Human and Peoples'' Rights which requires States to guarantee the independence of the Courts.

"Far from guaranteeing the independence of the courts in relation to my trial the Government of Ghana has shown an irrevocable determination to have me found guilty by hook or by crook and incarcerated" (paragraph 17), Mr Tsikata complains.

"He narrates how the Supreme Court reversed its earlier decision by a 6-5 majority; the new majority including both the Justice of the Supreme Court, newly appointed specifically for the review, as well as a Justice who had reached retiring age and who was soon given a new appointment by the President.

"After this, Mr Tsikata was arraigned before another High Court. At the close of the case for the Prosecution, his Counsel submitted that there was no case for him to answer, arguing, among other points, that the principle enunciated in Article 7(2) of the Charter against retroactive criminalisation was being violated. The Judge overruled the submission of Counsel without giving reasons. That decision, complains Mr Tsikata, denied him the right to a fair trial, including the right to have violations of his fundamental rights redressed and the right to be presumed innocent until proven guilty by a competent court or tribunal. "According to the communication, Mr Tsikata appealed to the Court of Appeal against the ruling of the High Court. The Court of Appeal upheld the ruling of the High Court, explicitly justifying the charges that had been objected to by reference to a repealed law which had not been cited in the charge sheet or at any point in the proceedings of the trial court except when the Director of Public Prosecutions was replying to the submission of no case made on Mr Tsikata''s behalf.

"The Court of Appeal, Mr Tsikata states, 91thus denied me a right to a fair trial as I could not have known before their decision that a repealed law, which I had not been notified about in the charge sheet or at any point in the trial before the submission of no case made on my behalf, was the basis, in part or in whole, for the charges brought against me. I was, therefore, denied the right to defence provided for in Article 7(1) (c) of the Charter.'' (Paragraph 23) "After indicating that he appealed to the Supreme Court against the judgment of the Court of Appeal, Mr Tsikata states that at a sitting involving only four Justices of the Court (contrary to Article 128(1) of the Constitution of Ghana), on November 8th 2004, the Court purported to dismiss his appeal by a four to one (4-1) decision. According to the complaint, in the decision read on behalf of the majority, there was a clear failure to comply with the fundamental criminal law principle that the Prosecution must prove its case beyond reasonable doubt. The Court''s decision was on the basis that this standard of proof beyond reasonable doubt only applies at the end of the trial after the Defence gives evidence and not at the stage of a submission of no case. "Mr Tsikata contended that by this decision he was denied 91the right to be presumed innocent until proven guilty by a competent court or tribunal'' provided for in Article 7(1) (b) of the Charter. He also claims there was both infringement of Article 7(2) of the Charter prohibiting criminal trial of a person for an act which was not punishable when it was done and also a failure to enforce Articles 19(5) and (11) of the Constitution of Ghana, which accords him certain fundamental rights as an accused person.

"Mr Tsikata states that his application to the Supreme Court for a review failed by a 6-1 summary majority decision. He goes on to indicate that further proceedings came on before the High Court in the course of which his Counsel, as part of his defence, obtained an order requiring the International Finance Corporation (IFC), an international organization, to come to court to testify and produce certain documents relevant to the matters on which he is being tried. However, that order was subsequently rescinded after argument by Counsel, who appeared on behalf of the IFC to the effect that the IFC was immune from the jurisdiction of the court, an argument that the Attorney-General associated himself with.

"Mr Tsikata contends that this decision also denies him "the right to defence" provided for in Article 7(1) (c) of the Charter, an aspect of which is also embodied in Article 19(2) (g) of the Constitution of Ghana. Reference is made to an elaboration of the right to recourse and fair trial by the African Commission on Human and Peoples'' Rights, meeting in its Eleventh Ordinary Session in Tunisia from 2 to 9 March 1992 as follows:

"2. (e) In the determination of charges against individuals, the individual shall be entitled in particular to: ..........(iii) Examine or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.

"The decision of the trial Judge, Mr Tsikata states, is in breach of this principle concerning the right to a fair trial under the Charter. According to the communication, despite Mr Tsikata appealing to the Court of Appeal against this decision and seeking an order from the Court of Appeal to have the IFC come and testify, the Trial Judge had indicated that she was proceeding with the case. It is contended that irreparable damage would be caused to Mr Tsikata if the High Court continued with his trial on charges that offend the provisions of the Charter and based on the denial to him of the right to be presumed innocent and to a defence.

"Mr Tsikata further contends that; 91the manifest determination of the Government of Ghana to ensure, without any reference to the facts and legal issues that my incarceration is the only possible outcome of the criminal proceedings against me, unjustly endangers my liberty". (Paragraph 36)

"He, therefore, sought the intervention of the African Commission on Human and Peoples'' Rights, appealing also to the Commission 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 the African Commission on Human and Peoples'' Rights heard the communication.

"The concluding paragraph of Mr Tsikata''s communication states:

"No harm or prejudicial effect whatsoever will be caused by such a stay of the proceedings which will rather enable important fundamental human rights issues to be determined authoritatively by the Commission and ensure that the conduct of such criminal proceedings in Africa are guided by an authoritative determination in the interests of fairness, respect for the rights of people and justice"(end text) 4 Feb. 07


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