African C’ssion Turns Down Tsatsu’s Plea

The quest by the former Chief Executive of the Ghana National Petroleum Corporation (GNPC), Tsatsu Tsikata, to seek the favour of the African Commission on Human and People's Rights in a complaint of unfair trial for causing financial loss to the state has failed.

The commission dismissed the complaint at its 40th Ordinary Session held in Banjul, The Gambia, and described it as “inadmissible for non-exhaustion of local remedies”.

That was after the Republic of Ghana raised a preliminary objection that the complainant did not follow the guidelines for its submission.

It said although the complaint presented a prima facie case of a series of violations of the African Charter, a close look at the file and the submissions indicated that Tsikata was yet to exhaust all the local remedies available to him.

In the light of the submissions, the commission noted that Tsikata's allegations were in respect of an ongoing/unconcluded trial and that information provided by him even stated that the case was still pending before the courts of Ghana.

“Should the ongoing trial end against the complainant's favour, he has further rights of appeal to the Court of Appeal and the Supreme Court of Ghana, in accordance with articles 137 and 131 of the Constitution of Ghana,” the commission noted.

The former GNPC boss had a brush with the law when, in 2002, the state charged him with three counts of wilfully causing financial loss of about ¢2.3 billion to the state through a loan he, on behalf of the GNPC, guaranteed for Valley Farms and another count of misapplying ¢20 million in public property.

Valley Farms contracted the loan from Caisse Francaise de Developement in 1991 but defaulted in the payment and the GNPC, which acted as the guarantor, was compelled to pay it in 1996.

Tsikata has pleaded not guilty to the charges and is on self-recognisance bail. The case has suffered various fates following a resort to the law by Tsikata and the state, the last of which is a motion to seek the Supreme Court's decision to challenge the trial court's decision, which the Court of Appeal upheld, that the International Finance Corporation (IFC), its employees and assets were immune from judicial processes.

That was after Tsikata had asked for the IFC's testimony in the matter which he believes is crucial to his defence.

Tsikata complained to the commission that the charge on which he was being tried constituted a violation of the right against non-retroactive criminalisation under Article 7 (2) of the African Charter and several provisions of the Constitution of Ghana.

He argued that he was being tried for an act which did not constitute a legally punishable offence at the time that it was done.

The commission, on April 27, 2006, received Tsikata's 10-page complaint of 36 paragraphs in which he chronicled when he was first arraigned before the circuit court in October 2001, his challenge of the constitutionality of the Fast Track Court and the appointment of a Supreme Court judge purposely to review his case, up to the current stage of the case.

He stated that the manifest determination of the government to ensure, without any reference to the facts and legal issues, that incarceration was the only possible outcome of the criminal proceedings against him unjustly endangered his liberty.

Consequently, he sought the intervention of the commission and urged it 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 his case had been heard by the commission.

The Attorney-General and Minister of Justice, Mr Joe Ghartey, assisted by Marina Atuobi, Nana Serwah Acheampong, both State Attorneys, and Nicholas Fredua Kwarteng, an Assistant State Attorney, also made a submission in reply to the complaint.

He stated that the guidelines for the submission of such cases provided that each communication should particularly indicate that local remedies had been exhausted and observed that Tsikata failed to provide any evidence of the domestic legal remedies pursued.

The Attorney-General further argued that Tsikata failed to meet the requirement of Article 56 (5) of the African Charter, since he could not show that the procedure in the High Court had been protracted or unduly delayed.

“If, indeed, any delay has been occasioned, it would be due to the complainant's own repeated request for adjournments and interlocutory appeals,” he said.

He further cited Article 56 (6) of the charter which provides for communications to be submitted “within a reasonable period from the time local remedies are exhausted” and stated that Tsikata acted impetuously, given that the matter had not been concluded and time had not begun to run so as to afford him an opportunity to bring up his complaint.

Story by Stephen Sah