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An Accra High Court has ordered the Attorney General’s (AG’s) Department to reformulate the agreement between the department and the former Chief Executive Officer (CEO) of Venture Capital Trust Fund (VCTF), Daniel Duku, in the erstwhile Mahama-led National Democratic Congress (NDC) administration.
The court presided over by Justice Anthony Oppong, a Court of Appeal judge sitting as an additional High Court judge, said yesterday that the AG should include the accused persons admitting guilt and also why they are giving up their constitutional right to trial.
According to the court, the current agreement between the two sides is unclear, as it does not also specify the principal sum the accused persons stole and misappropriated and how much reparation they are paying back to the state which lost money as a result of their actions.
He said the current agreement which has been filed by the AG does not also state whether the accused persons, who have agreed to plead guilty and willing to refund the money in order to escape jail terms, were made to understand the consequence of their decisions and whether they have been made aware that under the current agreement, it takes away their right to appeal.
Main Case
Mr. Duku, together with six accused persons, and a former Member of Parliament (MP) for Keta are standing trial for allegedly misappropriating funds in excess of GH¢42 million belonging to VCTF, a state agency.
The other four are Irene Anti Mensah, an Investment Officer of VCTF, who doubled as Executive Assistant to Mr. Duku; Frank Aboagye Mensah, businessman; Kofi Sarpong, former Investment Officer of VCTF; and Charity Opoku, aka Charity Ameyaw, an accountant at VCTF.
Agreement Hint
However, just as full trial was getting set, Mr. Duku, Irene Anti Mensah and Frank Aboagye Mensah reached an agreement with the AG’s Department under Section 35 of the Courts Act to refund their stolen monies to the state.
The three, per their agreements with the AG, will refund the entire amounts and also pay compensations over a period of time.
Per the agreement, Mr. Duku agreed to pay a total of GH¢15 million to the state as part of the fund he stole and embezzled while in charge of the fund and was to pay it within three months.
The latest development means that the accused persons will have to plead guilty to the charges levelled against them and will be convicted accordingly by the court.
However, they will not spend time in prison unless they default in their agreements to refund the money
Filed Document
Last week, when the agreement reached was announced, the court ordered the AG’s Department to file the agreement to give the court benefit of the details ahead of time to enable it to make a proper decision.
The AG complied with the order and filed the agreement ahead of yesterday’s court sitting.
But Justice Oppong appeared not convinced by the terms of the agreement between the AG and the accused persons, saying that there is nothing on the surface of the agreement to show that the accused persons were made to understand the implications of the agreement they entered into with the AG.
He also indicated that it lacked certain details which ought to have been included in the agreement which would guarantee that the accused persons cannot recant it.
Justice Oppong pointed out that Section 35 of the Courts Act under which the AG and accused persons came to the agreement is an unchartered area hence he had to look for practices in the Commonwealth region for precedent.
The court subsequently ordered the prosecution to shape their agreement along the lines of Kenya’s plea bargaining which specifies the details of the agreement between the accused persons and the state.
Again, Justice Oppong said the agreement did not indicate how many of the charges levelled against the accused persons and how many of the charges the AG through a compromise intends to drop.
The judge was also not convinced with the GH¢15 million Mr. Duku is set to refund, saying per his calculation, the former CEO was to pay more than that.
DPP Responses
The Director of Public Prosecutions, Yvonne Atakora Obuobisa, in her response, reminded the court that Ghana currently does not have a plea bargaining legislation although discussions are ongoing.
She said Section 35 of the Courts Act is different from a plea bargaining and formulating the agreement along the line of Kenya’s legislation which has a plea bargaining takes the whole agreement out of the realm of Act 35 under which they arrived at those agreements.
She reminded the judge about the fact that there are precedents in Ghana of accused persons coming under the said Section after they have pleaded not guilty to the charges against them.
On the issue of how much restitution and reparation the accused persons, especially Mr. Duku was to pay the state, she stated that it took painstaking efforts of accountants and auditors to arrive at those figures and not through simple calculations.
She said the principal sum Mr. Duku misappropriated was GH¢9 million and the profit which accrued on the sum took the entire amount to GH¢22 million, but the prosecution through an agreement has asked the accused person to refund GH¢15 million.
She added that reparation does not have to be the same amount as the stolen figure.
Guilty Plea
Addo Atuah, counsel for Mr. Duku, told the court that the accused persons sat with the AG and their lawyers and understood the consequences of their decision before agreeing to the terms.
He added that although the accused persons had pleaded not guilty at the beginning of the trial, they have the right to change their pleas as long as the prosecution has not closed its case.
Accused Properties
Meanwhile, the AG has proposed to the court to release two of Mr. Duku’s properties for him to sell to raise money to refund the stolen state funds.
The proposal states that the other properties of the accused person should remain frozen until he has finished paying the entire amount to the state.
Justice Oppong was also not impressed with the move as he said the state had not determined the value of the properties and how much the accused would raise from selling them.
He said the AG should have made those assessments before suggesting to the court to release the properties to the accused person.
