Gifty Oware-Mensah
Former Executive Deputy Director of the National Service Authority (NSA), Gifty Oware-Mensah, has failed in her attempt to temporarily halt her trial in order to pursue an appeal against the order of a High Court in Accra on her to file a list of names and addresses of potential witnesses in her ongoing trial of allegedly stealing from and causing financial loss to the state.
She had argued through her lawyer that the order which was given pursuant to the practice direction on case management, is inconsistent with the provisions of the 1992 Constitution which presumes her innocent until proven guilty by the prosecution.
Justice Audrey Kocuvie-Tay, in a ruling on Tuesday, simply indicated that after listening to learned counsel, the application is dismissed.
This is the second time the court has dismissed an application for stay of proceedings in the trial.
That notwithstanding, there is a third one pending before the court also seeking a stay of proceedings pending the hearing and determination of an appeal against the court’s refusal to refer the interpretation of Article 12(2)(c) of the Constitution vis-à-vis the practice direction.
That application is scheduled to be moved on April 15, as prosecutors indicated they had not been served with a supplementary affidavit in support of the application, although they had been served with the substantive application which they have filed an opposition to.
Trial
Mrs. Oware-Mensah is standing trial before the court for allegedly stealing and causing financial loss of GH¢38.4 million to the state.
The court has already adopted the witness statement of the prosecution’s first witness, Gilbert Sebe-Yeboah, a staff of Agricultural Development Bank (ADB) and began admitting the attached exhibits as the prosecution takes steps to establish the guilt of the accused person.
Her lawyers have however mounted a serious challenge against the court order during case management, requiring her to file the names and addresses of her potential witnesses.
Moving the motion for stay of proceedings pending the hearing and determination of the appeal against the order on the accused to file a list of potential witnesses, her lawyer, Gary Nimako Marfo, argued that the constitutional presumption of innocence as provided for in Article 19 (2)(c) of the 1992 Constitution is “sacrosanct and cannot be ignored.”
He averred that if these matters raised in the appeal are not resolved by the Court of Appeal to guide the direction of the trial, a grave miscarriage of justice would occasion the accused person.
“Having regard to the practice direction which is compelling an accused person to file list of witnesses and their addresses is an attempt to whittle down the constitutional presumption of innocence of an accused person,” he argued.
Mr. Marfo added that the Evidence Act which guides the practice of law in the courts has placed the burden of proof in criminal proceedings on the prosecution, and the accused person bears no burden throughout the trial.
The application was opposed by Dufie Prempeh, a Principal State Attorney, who argued that the court’s direction for witness disclosure is grounded in the practice direction designed to keep a trial orderly and efficient.
She said stay of proceedings is only granted when there is special circumstances and not just because the applicant disagrees with a procedural ruling by the court.
She quoted several cases where the Supreme Court said merely filing appeal does not result in stay of proceedings and that special circumstances of the case must be taken into consideration.