The deal between the Attorney General’s Department and the accused persons in the case of the Republic versus William Ato Essien and two others is apt and favours the state, says the senior vice-president of IMANI Africa, Kofi Bentil.
He also says he disagrees with Justice Eric Kyei Baffour’s suggestion that should the three accused persons be allowed to settle the charges preferred against them by the state through Section 35 of the Courts Act 1993 (Act 459), it would paint a picture that makes crime seem attractive.
Bentil says the opposite of the judge’s assertion is true because the accused persons will be convicted of their crimes on their own plea and will pay the large sums of money misappropriated back to the state.
Judge’s argument
Justice Kyei Baffour, a Court of Appeal judge sitting with additional responsibility as a high court judge, was expected to deliver judgment in the three-year-old Capital Bank trial on Thursday (1 December 2022) and bring the case to a logical conclusion.
However, when the case was called in court, the deputy attorney general Alfred Tuah-Yeboah, on behalf of the state, told the court that the state has reached a settlement with the accused, based on Section 35 of the Courts Act 1993.
After hearing the deputy attorney general, Justice Kyei Baffour’s court ruled: “The money William Ato Essien and the two other accused persons are alleged to have stolen does not belong to the state.”
The money, the trial judge said, “belongs to the bank and depositors of the bank”.
The judge argued that as the money is not the property of the state or any agency of the state, no loss or harm can be said to have been caused to the state.
“It is my candid opinion that Section 35 is not applicable to the case for the first accused person to enter into a settlement with the prosecution,” the judge said.
Previous position
In the course of the trial, defence lawyers are on record to have requested permission from the court to engage the state on the basis of Section 35 of the Courts Act 1993.
During the trial, Justice Kyei Baffour did not raise any issues with the request by the defence team.
The trial judge is on record to have said at one court sitting that the accused were at liberty to negotiate with the state based on Section 35, and that they could do so until the court was ready to deliver judgment.
The position of the court at the hearing on Thursday was a marked departure from its previous views on the ability of the accused to offer compensation or restitution.
Bentil’s contention
Reacting to reportage on the position of Justice Kyei Baffour’s court, Bentil argued on Joy FM’s Newfile programme that, contrary to the judge’s suggestion, Section 35 is making crime in Ghana unattractive.
Bentil said, “There is good reason in philosophy, in what is proper and practical, for us to have a Section 35, because there are people who actually steal state money and want to go to jail for five, even ten years, come back and enjoy it.”
He explained that while custodial sentences only create a delay in convicted individuals enjoying their stolen wealth, Section 35 forces them to cough up.
“Yes, I disagree with [Justice Kyei Baffour] because Section 35 is a very good provision for those of us who are in policy, who look at what goes on in this country, and the millions that we lose and the money we don’t recover.
“You see, over the decades … people have come to realise that, indeed, without [Section] 35 it is lucrative rather to steal.
“So, indeed, the argument is counterproductive against what was said: that because of 35 people are going to steal. It is without 35 that people steal. And we’ve seen some, I’ve seen some; I don’t want to go into the details.
“The point here is that, with [Section] 35, you know that if you steal you can be asked to cough up the money. And in this particular case [the Capital Bank case], if you go through the numbers, what is being coughed up is quite substantial given what is being admitted,” he said.
Wilberforce Asare
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