An outspoken law professor, Stephen Kwaku Asare, has questioned the basis of the quashing of the conviction of Tsatsu Tsikata by the Court of Appeal, describing it as an error in law.
He argued in a Facebook post few hours after the court’s decision Wednesday that Mr Tsikata had no locus standi to appeal his June 18, 2008 conviction by the Accra Fast Track High Court. Prof. Kwaku Asare grounded his argument on the fact that Mr Tsikata was granted a presidential pardon in 2009, and for him to accept same means he waived any right of appeal. “The common law is settled that a convict who accepts a pardon waives any right of appeal with respect to that conviction.
The underlying theory is that accepting a pardon carries with it an implied admission of guilt and closes the chapter on the case,” he said in his post. A former Chief Executive of the Ghana National Petroleum Corporation, Mr Tsikata was on June 18, 2008 convicted and handed down a five-year jail term to he was found guilty of three counts of causing financial loss of about ¢2.3 million to the state and misapplying public property.
He was however, on January 6, 2009 granted absolute presidential pardon by former President John Kufuor but Mr Tsikata rejected the pardon, and vowed to pursue his innocent through judicial processes although he never continued his five-year sentence in Prison. He subsequently filed an appeal on June 30, 2016 and the Court of Appeal presided over by Justice Dennis Adjei on Wednesday cleared Mr Tsikata of the conviction on the basis of a miscarriage of justice done him.
READ: Tsatsu is innocent; Fast Track 5-year jail term quashed
But Prof. Kwaku Asare says the Court’s action constitute an error, stating that “Having accepted a presidential pardon, my learned friend [Tsikata] had no standing to appeal his conviction and the Court had no jurisdiction to hear a matter for which the appellant had been forgiven for confessing his sin”. He contended that though Mr Tsikata publicly declared his rejection of the pardon, “that of course, is brutum fulmen.
It is analogous to wearing a cross around the neck while pocketing a talisman. “In effect, a convict who wants to preserve his right to appeal should reject a pardon,” he added. For him, Wednesday’s judgement has no practical significance except that “it will or should excite the minds of students of law”. Prof. Kwaku Asare said “In my mind, the Court erred by allowing Tsatsu, my learned brother, to eat his cake and have it”.
The trial of Tsatsu Tsikata, initiated by the then former Attorney General Nana Akufo-Addo, dragged for five years and eight months, and ended on June 18, 2008 with a five-year sentence The court found him guilty of causing financial loss to the State through a loan he, acting on behalf of the GNPC, guaranteed for Valley Farms Limited, a private cocoa producing company in 1991, and misapplying public property.
Before his sentence , Mr Tsikata was seeking an order at the Supreme Court to bring the International Finance Corporation to testify in the case in which both the Court of Appeal and the Fast Track High Court had ruled that the IFC has immunity from the processes of the courts. Mr Tsikata had insisted that the failure to get the corporation to testify “will occasion a miscarriage of justice”.
The Supreme Court had fixed June 25, 2008 to deliberate on Mr.Tsikata’s application, but when Justice Henrietta Abban sat on June 18, 2008, she made it clear that she was proceeding to read her judgement because the court had not received any order from the Supreme Court to stay proceedings, and according proceeded to convict and sentence Mr Tsikata.
Enhancement of sentence
In August 2008, The Attorney-General has filed a notice of appeal at an Accra Fast Track High Court calling for “enhancement of sentence” for the jailed former Ghana National Petroleum Corporation Chief Executive, Tsatsu Tsikata. The notice, signed by the then Chief State Attorney, Valerie Amatey, said the “Republic is dissatisfied with the five-year sentence in hard labour imposed on Tsikata”, describing it as “not proportionate having regard to the gravity of the offence”. But that application was truncated by the presidential pardon granted Mr Tsikata.
The pardon and the rejection
Mr Tsikata and other bigwigs of the National Democratic Congress were granted “free, absolute and unconditional pardon” by President Kufuor They are Mr Akenteng Appiah-Menkah, an Industrialist and Mallam Yussif Ali Issah, former Minister of Youth and Sports in the first term of the President Kufuor Administration.Others are Mr Kwame Peprah, Minister of Finance during the First National Democratic Congress Government until 2001; Mr Ibrahim Adam, Minister of Food and Agriculture under the NDC until 2001 and Dr George Sepah-Yankey, a Director of Agriculture under the NDC until 2001, all of whom served various sentences for wilfully causing financial loss to the state in the Aveyime Rice Project
The others are Mr Dan Abodakpi, Member of Parliament for Keta and Former Minister of Trade and Industry in the NDC Government, who also served a jail term for causing financial loss. But Mr Tsikata who was at the time of the pardon hospitalised, rejected the pardon and insisted that he will continue to pursue justice in the court of law because the pardon was “the height of hypocrisy.
“I have never sought, and I do not need your pretence of mercy. Justice is my quest and I will pursue this quest in accordance with the constitution and laws of Ghana,” he said in a two-page handwritten letter to President Kufuor on the same day he was granted the pardon “Your apparent exercise of the presidential prerogative of mercy in respect of a conviction and imprisonment which you were the prime mover of, is the height of hypocrisy,” he said.