The lady who accused ace broadcaster Kwesi Kyei Darkwah (KKD) of rape could be subpoenaed to testify against her accuser, despite her unwillingness to pursue the case.
Lawyer John Ndebugri told Joy News since rape is a criminal case and classified as a non-bailable offence, the lady at the centre of the rape case has no power to withdraw the case. Her interest is no longer paramount but the state, he stated.
Ewuraffe Orleans-Thompson purportedly wrote a letter to the Attorney General copied to the Chief Justice, requesting a withdrawal of the case from court.
In the letter, Ewuraffe cited the huge media frenzy over the matter for her decision to withdraw the case from court.
Though state prosecutors have expressed doubts over the authenticity of the letter supposedly written by the lady, the Human Rights Court Thursday morning granted KKD bail on humanitarian grounds.
KKD has been charged with rape after the 19-year old lady accused him of assaulting her in a hotel bathroom last month. He has spent about three weeks in police custody.
State prosecutors who opposed the bail have strongly indicated their resolve to pursue the case in court.
Mr. John Ndebugri was surprised by the decision of the court to grant KKD bail, quoting Section 96 of the Criminal Procedure Code with regards to non-bailable offences, stressing that the law does not give any discretion to the court.
He urged the prosecutors to go ahead with the case using Ewureffe's statement to the police because that statement, he suspected was not given under the influence of drugs or alcohol.
Mr. Ndebugri explained, “The Attorney General can proceed with the case and call her as a witness.If she refuses to come, they will serve her subpoena notice to come to court. If she refuses to come [once more], she will be arrested and then charged with contempt of court and dealt with according to what the court decides.
“If she appears and decides not to cooperate, the prosecution can apply to the court to declare her a hostile witness, and then when the court has upheld that application then the state will cross-examine her. She is no more a witness of the state, she is an adverse witness. The state will cross-examine her and tender her statement as evidence.”
However, the Attorney General, Mr. Ndebugri noted can file an application of nole prosequi to discontinue the case.
COURTROOM In the morning, Joy News' Anny Osabutey was in court and reported what transpired there.
Before the bail application could be heard by the court, lawyer for KKD, Tony Forson officially informed the court about a letter from the alleged rape victim, Ewerueffe Orleans Thompson.
The letter, according to Tony Forson, was written by the victim to inform the Attorney General she was no longer interested in assisting the police prosecute the case. But the state prosecutor Cynthia Lamptey raised questions about the authenticity of the letter.
The two lawyers switched attention to the main case by opening their arguments. Mr. Forson showed a medical report to back his submission that Mr. Kyei Darkwah's medical condition is not good and that his environment could be fatal.
According to him, he was attending physiotherapy sessions and should he be granted bail, will make himself available to the magistrate court where the substantive case is being held. But the state prosecutor Cynthia Lamptey was opposed to the bail application.
Ms. Lamptey maintained that the current medical status of the accused was not as a result of his detention. She argued that KKD should be sent to the hospital for the necessary medical care. To support her argument, she referenced a case between One Oko verses the Republic in the 1970s, where the accused was denied bail on similar grounds.
After hearing the arguments from the two parties, the judge, Kofi Essel Mensah, granted KKD bail on what he called “humanitarian grounds”.
He set the bail conditions: Twenty Thousand cedis with two sureties. He said the case cited by the state prosecutor cannot be supported especially in this democratic dispensation. He said the Oko verses Republic incident took place under a military regime, which had no respect for the rights of its own citizens.
Judge Essel Mensah said the country now subscribes to human rights laws and it is the duty of the state to uphold those rights, while protecting the liberties of persons accused of a crime. He described as 'unfair', attempts by the state to seek refuge in the law by insisting the offence is not bailable.