Judge denies indicting Attorney General of misconduct, compromise

His Lordship Justice Eric Kyei Baffour has stated on official record that he had never at any point accused the State – the Attorney General’s Department – of misconduct or being compromised in the agreement entered into with an accused person on trial to pay to a restitution amount of GHC90 million to the State rather than serve a custodial sentence.

The Judicial Secretary, Justice Cynthia Pamela Addo JA, on Wednesday, December 7, 2022 signed and issued an official statement to put out the denial from Justice Kyei Baffour after some media houses reported he had indicted the State of misconduct a compromised stance in the agreement it entered with the accused person.

The statement issued by the Judicial Secretary noted in full:

The attention of the trial Judge, His Lordship Justice Eric Kyei Baffour, in the criminal case pending at the High Court Accra, entitled Republic vs. William Ato Essien and 2 Others, has been drawn to publications by various media houses to the effect that:

“At the proceedings of the court on Thursday, 1 December, 2022, the trial Judge stated, that the State was compromised in the matter of the agreement entered into with the 1st accused person, subject to the acceptance of the court and in pursuance of section 35 of the Courts Act, 1993 (Act 459)”
The trial Judge, would like to correct / clarify the above-stated reportage and place on record that:
i. No statement in the nature of the media reports referred to above, or imputing misconduct on the part of officials of the State, was made by the court either on 1st December 2022 or throughout the trial of the case.

ii. He (the trial Judge) enquired from one of the defence lawyers whose client has been charged with offences of abetment and conspiracy, whether the terms of the agreement entered between the State and the 1st accused would not compromise the position of the other accused persons.

Justice Kyei Baffour is the trial judge in the well-publicized criminal case in which William Ato Essien, founder of the defunct Capital Bank, is on trial for several financial-crime related offenses.

After three years of trial, at the eleventh hour, when the Judge was ready to give his ruling, he was informed that the accused had entered into an agreement to rather pay the said amount instead of face a jail term.
The move by Mr. Ato Essien was pursuant to Section 35 of the Courts Act, 1993 (Act 459) which allows an accused person to plead guilty and pay restitution to the state in cases in which there had been financial loss to the state.

However, the trial Judge expressed displeasure and said the agreement between the accused ad the State was not a good deal.

He adjourned the trial to December 13, 2022 for the prosecution and accused to come back with a better agreement and also convince the court whether the trial was one that fell under Section 35 of Act 459.

Deal Was Good

Meanwhile, Lawyer Kofi Bentil, Senior Vice-President of highly-reputable think-tank, IMANI Africa, has said the agreement between the Attorney General’s Department the accused makes perfect economic sense and is a brilliant agreement that is backed by and can be defended by the laws of Ghana.

Lawyer Bentil said contrary to a suggestion that the agreement for the accused person to refund the said amount would make crime attractive, this provision would rather make crime very unattractive as it would send signals that stolen monies would be recovered failure for which the suspect would weep in jail.

He said this agreement is better that the conventional scenario where persons on trial to have stolen millions of money are thrown into custody only for them to come out and enjoy whatever amounts they are found to have stolen.

Lawyer Bentil spoke on Joy FM’s Newsfile a few days after the judge had expressed his disagreement with the agreement.

“There is good reason in philosophy, in what is proper and practical, for us to have a Section 35, because there are people who actually steal state money and want to go to jail for five, even ten years, come back and enjoy it.”

He explained that while custodial sentences only create a delay in convicted individuals enjoying their stolen wealth, Section 35 forces them to cough up.

“Section 35 is a very good provision for those of us who are in policy, who look at what goes on in this country, and the millions that we lose and the money we don’t recover.

“You see, over the decades … people have come to realise that, indeed, without [Section] 35 it is lucrative rather to steal.

“So, indeed, the argument is counterproductive against what was said: that because of 35 people are going to steal. It is without 35 that people steal. And we’ve seen some, I’ve seen some; I don’t want to go into the details.
“The point here is that, with [Section] 35, you know that if you steal you can be asked to cough up the money. And in this particular case [the Capital Bank case], if you go through the numbers, what is being coughed up is quite substantial given what is being admitted,” he said.

Lawyer Bentil argued further that what the accused person is admitting is just about GHC27 million which he had agreed to refund but the Attorney General’s Department rejected the offer.

He said the accused then proposed to offer about GHC50 million although it is GHC27 million he admitted to have been wrongly taken but again that amount was rejected by the state.

In his view, if the accused admitted to GHC27 million but the Attorney General’s Department has pushed him to agree to pay as high as GHC90 million, such an arrangement cannot be said to be a good reason for people to want to commit crime.