A five-member Supreme Court panel has ordered the Attorney General to amend charges levelled against the former director-general of the Social Security and National Insurance Trust (SSNIT), Ernest Thompson and four others.
The five have been accused of causing financial loss to the state of more than US$14.8 million in the SSNIT Operational Business Suite (OBS) project.
The four other accused are John Hagan Mensah, a former Information Technology (IT) Manager at SSNIT; Juliet Hassana Kramer, the chief executive officer of Perfect Business Systems (PBS); Caleb Kwaku Afaglo, a former Head of Management Information Systems (MIS) at SSNIT; and Peter Hayibor, the lawyer for SSNIT.
In a unanimous judgement by the five-member Supreme Court panel, the court presided over by Justice Yaw Appau said the charges preferred against the accused persons do not meet the threshold set by the 1992 Constitution to come to criminal prosecutions.
The decision of the Supreme Court was an affirmation of an earlier decision of the Court of Appeal following an application by lawyers of the former SSNIT boss challenging the constitutionality of the charges preferred against him and four others by the State in 2018.
The Supreme Court in upholding the decision of the Court of Appeal said it is wholly in agreement with the Court of Appeal in its ruling that stated among others that the charges as captured on the charge sheet of the accused persons did not meet the provisions of Article 19 (2)
D and E, of the 1992 constitution which states that, “a person charged with a criminal offence shall – d) be informed immediately in a language that he understands, and in detail; of the nature of the offence charged” and (e) “be given adequate time and facilities for the preparation of this defence”.
The Supreme Court in its consequential orders charged the Director of Public Prosecution (DPP), Yvonne Atakora Obuobisah, who represented the state at the hearing, to go back and look at the charges and provide provide clarity to same to enable the accused persons to prepare their defense adequately.
The case of the accused person
Thompson and the four other accused persons contend that on every charge sheet, there is a statement(s) of offence(s) which states the particular offence an accused person has been charged with and the particulars of offence which provide the details of what an accused person is alleged to have committed in relation to the offence and their case should have the same details. However , it is the case of Mr Thompson that the prosecution failed to provide sufficient particulars on the offences levelled against him as required under Article 19 (2) (d) and (11) of the 1992 Constitution and Section 112 of the Criminal Offences (Procedure) Act, 1960 (Act 30).
His lawyers argued that the particulars are so scanty that they do not afford their client any concrete information to enable him to mount his defence.
The prosecution, on the other hand, has insisted that the particulars of the offences contain adequate information, and argue that the contention of Thompson when allowed to stand, will amount to prosecution providing evidence in the particulars of offence.
The offences levelled against Thompson and the other accused persons include willfully causing financial loss to the state, conspiracy to commit crime, defrauding by false pretence in contravention of the public procurement act and authoring of forged documents.
The former SSNIT boss first filed his application before the trial court, presided over by Justice Henry A. Kwofie, a Justice of the Court of Appeal sitting as a High Court judge, but it was dismissed on April 19, 2019.
Dissatisfied with the decision, Thompson appealed to the Court of Appeal on the grounds that Justice Kwofie committed an error of law and also erred by dismissing his application.
On April 3, 2020, a three-member panel of the Court of Appeal in a 2-1 majority decision upheld Thompson’s appeal and held that, indeed, the particulars of offences on the charge sheet were not sufficient.
It accordingly directed the prosecution to “provide reasonable information to enable the appellant (Mr Thompson) prepare adequately for his defence”.
The Attorney-General decided to appeal the Court of Appeal’s decision at the Supreme Court.
Supreme court panel
The five-member panel of the apex court that sat on the case are Justice Yaw Appau as chair, with Justices Agnes M.A. Dordzie, Avril Lovelace-Johnson, Gertrude Torkonoo and Issifu Omoro Tanko Amadu.
Alleged OBS scandal
In June 2010, SSNIT initiated the $34 million OBS project to use Information and Communications Technology (ICT) to revamp its operations to enable it to provide a state-of-the-art pension administration system in the country.
It is the case of the prosecution that between September 2013 and September 2016 the five accused persons engaged in various illegalities that caused financial loss to the state in relation to the said project.
The contract sum, the prosecution said, also ballooned from $34 million to over $66 million, even though the OBS system failed to perform efficiently as the project contract had envisaged.
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