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Constitutional law - Criminal
law - Judgment – Mootness –
Immunity - Causing financial
loss - Misapplication of public
funds - Subpoena Duces Ad Tecum
- Public interest -
Statutory Immunity - Factual
basis – Whether a claim for
diplomatic immunity from legal
proceedings over-rides the
constitutional right of an
accused person to fair trial
under Article 19 (2) (g) of the
1992 Constitution - section 179A
(3) (a) of the Criminal Code of
1960, Act 29 - section 1(2) of
the
Public Property Protection
Decree 1977, SMCD 140. - Article
19 of the 1992 Constitution -
Article 2 (b), 12 (1) (a)
Articles 22, 23, 24, and 27 to
40 of the Vienna Convention on
the Law of Treaties.
HEADNOTES
The facts of
the case relevant to this appeal
are that the Appellant, Mr.
Tsatsu Tsikata one time the
Chief Executive of Ghana
National Petroleum Corporation (GNPC)
was standing trial on 3 counts
for willfully causing financial
loss to the state contrary to
section
179A (3) (a) of the Criminal
Code of 1960, Act 29; and on one
count for intentionally
misapplying Public property
contrary to section 1(2) of the
Public Property Protection
Decree 1977, SMCD 140.
On 9 December
2005, the Fast Track High Court
Accra presided over by Henrietta
Abban J.A. (sitting as an
additional High Court Judge),
issued at the instance of the
appellant, a subpoena directed
at the country director of the
International Finance
Corporation (IFC) to produce to
the Court documents on Valley
Farms Project promoted by the
Africa Project Development
Facility from 1987-1990. Counsel
for the IFC appeared in Court to
raise an objection on the
grounds that the said country
director enjoyed diplomatic
immunity from legal proceedings
which he does not intend to
waive. The trial judge upheld
the claim of diplomatic immunity
and rescinded the subpoena in
respect of the country director
of the IFC.
Counsel for
the appellant then applied to
the Court to issue a fresh
subpoena directed at the IFC as
an institution to come to
produce those documents. Counsel
raised the same objection that
the IFC was also claiming
immunity from legal proceedings,
and it was upheld. The Court of
Appeal affirmed the ruling by
the High Court.
HELD
It is clear
from this provision that the IFC
can be sued in the situation
therein sated. The parties do
not dispute that this situation
obtains in Ghana in respect of
the IFC. There is no other
legal barrier with regard to
legal process as to the IFC.
Clearly then legal process like
a subpoena duces tecum
can issue to the IFC itself and
the courts below erred in
holding otherwise For all the
foregoing reasons I would allow
the appeal.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution.
The
International Bank, Fund and
Finance Corporation (Immunities
and Exchange Contracts) Order,
1958 L.N.9
Public
Property Protection Decree 1977,
SMCD 140.
Criminal Code
of 1960, Act 29
Diplomatic
Relations Act, 1962, Act 148.
Evidence
Act,1975, (NRCD 323)”
CASES
REFERRED TO IN JUDGMENT
Littlewood
v George Wimpey & Co. Ltd.
(1953) 1 WLR 426, Armon v Katz
(1976) 2 GLR 115 C.A
Kwakye v
Attorney-General (1981) GLR 9
S.C.
Rex v Dick
Ogbulu Opia (1942) 8 WACA 114
King v. Vasey
and Lally (1905) 2 K.B. 748
Three Rivers
District Council & Others v Bank
of England (No. 2) (1996)2 All
ER 363
Tuffour v.
Attorney-General (1980) GLR 637
C.A.
Tsatsu
Tsikata v The Republic
(2005-2006) SC GLR 612
Republic v
Tommy Thompson Books Ltd. (No.2)
(1996-97) SC GLR 484.
Algemene Bank
Nederland v K. F. and others
(1987) Vo. 96 ILR 344
In Salah N.
Osseiran, Appellee v
International Finance
Corporation, Appellant
No.07-7122 United States Court
of Appeals for the District of
Columbia Circuit 552 F.3d
836;384 U.S. App. D.C. 183; 2009
U.S. App. Lexis 395
Jeorge Vila,
Appellee v. Inter-American
Investment Corporation,
Appellant No. 08-7042 United
States Court of Appeals for the
District of Columbia circuit 570
F.3d 274; 386 U.S. App. D.C.
364; 2009 U.S. App. Lexis 13279
R v. Lord
Chancellor, Ex parte Witham
(1997))3 LRC 347
Norwich
Pharmacal v Customs and Excise
Commissioners (1974) A.C. 133
H.L
Rowel v.
Pratt [1938] A.C. 101)
Re Akoto
(1961) 1 GLR 523 S.C
NPP V. IGP
[1993-4] 2GLR 495,
Osei v. The
Republic (No.2)
Maikankan v.
The Republic.
Awuni v. West
African Examination Council
[2003-2004] 1 SCGLR 471
The Republic
v, Court of Appeal, Accra: Ex
parte Tsatsu Tsikata [2005-2006]
SCGLR 613
BOOKS
REFERRED TO IN JUDGMENT
Role of the
Supreme Court In the Development
of Constitutional Law in Ghana
Edition of
Maxwell on the Interpretation of
Statutes 7th
Vienna
Convention on the Law of
Treaties.
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
E. V. O.
DANKWA FOR THE APPELLANT
MERLEY WOOD
O.S.A (WITH HER MRS. SEFAKOR
BATSE AND RICHARD GYAMBIBY A.S.A)
FOR RESPONDENT.
______________________________________________________________________
JUDGEMENT
______________________________________________________________________
ATUGUBA,
J.S.C:
This
judgment
should have, but for a
motion for its arrest by the
appellant and subsequent events
, been delivered on 25/6/2008.
A question
has arisen whether in view of
the delivery of judgment by the
High Court and the pendency of
the appellant’s appeal
therefrom, this appeal is now
moot. This question of
mootness
has been dealt with by this
court on some occasions. The
whole matter has been
extensively dealt with by Dr.
Bimpong-Buta in his celebrated
book The
Role of the Supreme Court In the
Development of Constitutional
Law in Ghana at 168-176.
From his treatment of it I do
not regard this matter as moot
especially as a constitutional
issue is involved. In any case
the appellant cannot raise this
question of the
immunity
before the Court of Appeal
again since it has been decided
by it already. This means that
in all probability that issue
will come up before this court
again unless decided now. It is
therefore still a live and not a
moot issue.
The appellant
stood trial before the High
Court, Fast Track Division,
Accra, on charges of
causing
financial loss
to the state
and
misapplication of public funds.
In the course of the trial the
appellant sought and obtained a
subpoena by order of the trial
judge, Mrs. Henrietta Abban,
J.A. in these words:
“Let
the Registrar of the Court issue
a Subpoena Duces Ad Tecum
directed at the Country
Director, I.F.C to appear before
this Court on the 15th
of December 2005 instant, in
respect of documents of the
Valley Farms Project promoted by
the African Project Development
Facility for the period from
1987 to about 1990.”
Pursuant to
the issue of this subpoena but
before its service, the
International Finance
Corporation (I.F.C) per their
counsel, Mr. Kizito appeared
before the trial court and
objected to the issuance of the
subpoena on the following
grounds:-
“Statutory
Immunity from the courts
processes. I understand
that your order has not been
served on them; that
notwithstanding when it came to
the attention through the
dailies that the order had been
made they asked us to inform the
court that they do not on this
occasion intend to waive their
immunity. The immunity is
derived under LN9 of 1958
Section 5 grants immunity to the
archives of the IFC and section
8 grants immunity to the
Governors, Executive Directors
and officers of the IFC. My
Lord, my clients do not intend
to waive their immunity.”
The
Attorney-General (Mr. Ayikoi
Otoo) associated himself with
the objection and further relied
on articles 73 and 57(5) of the
1992
Constitution.
The trial
judge upheld the objection. The
appellant’s counsel thereupon
shifted his application for the
same purpose but this time
directed to the International
Finance Corporation itself, but
the same was refused. The
appellant appealed against these
rulings to the Court of Appeal
without success, hence this
ultimate appeal to this court.
The grounds
of appeal and the arguments
thereon were profuse but do not
defy a summation. I will
therefore with respect to both
deal only with the essence.
The trust of
the appellant’s contention is
that the trial judge assumed,
without the necessary
factual
basis that the claims to
immunity were established and
that no such factual basis could
have, at any rate, been
established in the circumstances
of this case.
This appeal,
I have urged, in my ruling on
the appellant’s application for
the IFC’s counsel to be invited
to address this court on the
question of this immunity, could
be regarded as moot consequent
upon an admission by the
Republic in its “written
Submissions by Counsel for the
Respondent” dated 26/11/2007.
At page 6 thereof the learned
Acting Director of Public
Prosecutions, Gertrude Aikins
submitted as follows:-
“It is my
humble submission that there is
no dispute between the
respondent and the appellant
over the viability of the
project. The prosecution’s own
witness PW1 under
cross-examination gave evidence
for the accused that the project
was a good one, Agence Francaise
de Development also gave
evidence to the same effect”
She
reiterated this submission at
page 9 as follows:-
“My
submission is that, the
viability of the Valley Farms
Project has never been in
issue. That has never been the
case of the prosecution. The
crux of the matter is that
the
appellant invested outside the
core functions of GNPC as
prescribed by Law PNDCL 64 of
1983 and sustained a loss as a
result. After all the evidence
quoted above, what was the IFC
coming to say?”
The admission
was stated in extenso but these
excerpts capture its essence.
The conspicuous purpose of the
appellant in relation to the
subpoena is stated by his
counsel at pages 82-83 of the
Record thus:
“The order is
for the IFC to testify and
provide information regarding
its role in a transaction in
respect of which criminal
charges have been brought
against the accused. It is
part of the case of the accused
that having regard to the role
played by a number of banking
institutions including IFC in
undertaking technical and
economic studies of the project
and given a positive evaluation
of the project to potential
investors, it was an appropriate
exercise of good business
judgment for the accused to
authorize asset managers,
holding assets on behalf of the
Corporation which accused was
Chairman and Chief Executive of,
to make investment in the
project on an agreed basis. The
best evidence about the role of
the IFC can only come from the
IFC itself and the defence has
to be afforded facilities for
obtaining the attendance of the
IFC to provide evidence.”
The
substratum of the whole
controversy raging over the
immunity vel non of the
IFC to legal process having thus
been removed by the admission of
the Republic one wonders on what
this appeal could continue to
hang.
Nonetheless
my colleagues (then), and
counsel on both sides feel
strongly that the question of
this immunity must still be
usefully decided. Very well
then.
So far as the
immunity of the directors,
employees etc of the IFC is
concerned, it is, as far as
relevant, provided in section 8
of the schedule to
The
International Bank, Fund and
Finance Corporation (Immunities
and Exchange Contracts) Order,
1958 L.N.9 as follows: “all
governors, directors,
alternates, officers and
employees of the Corporation
shall (1) be immune from legal
process with respect to acts
performed by them in their
official duty.”
Legal
immunity from legal process may
take various forms but the
common legal thread that runs
through them is that the facts
upon which it operates are
preconditions to its successful
invocation. See
Littlewood v George Wimpey & Co.
Ltd. (1953) 1 WLR 426, Armon v
Katz (1976) 2 GLR 115 C.A.
in which a certificate from the
Ministry of Foreign Affairs was
obtained to establish the
diplomatic status of the 2nd
defendant;
Kwakye v
Attorney-General (1981) GLR 9
S.C. at 14. I therefore
agree that without taking
evidence on the factual
prerequisites of the immunity
claimed by the country director
the courts below erred in
upholding that claim. To my
mind the immunity in section 8
of LN 9 relates to protection
for them while carrying out
their functions relating to the
affairs of the International
Finance Corporation. That is
the context of that provision.
The purpose of the immunity is
stated in section 3 of LN 9 as
follows:- “to enable the fund,
the bank and the corporation to
fulfil the functions with which
they are respectively extrusted,
the provisions of the fund
agreement, the bank agreement
and the finance corporation
agreement set out in the
schedule to this order shall
have the force of law”. The
immunity therefore is restricted
to the extent therein revealed.
I do not pretend to know
International Law. I have never
studied it. But whatever it is
I do not think that the mischief
or purposive rule of
construction can be expelled
from it. Humans are rational
creatures and therefore the
general rule of construction is
that, no matter the use of wide
words, effect must be given to
them to no greater extent than
their objective warrants. Thus
in Rex v
Dick Ogbulu Opia (1942) 8 WACA
114 at 116 the court
passionately stated thus: “a
passage in the
7th
Edition of Maxwell on the
Interpretation of Statutes at
page 198 is pertinent:-
“Where the
language of a statute, in its
ordinary meaning and
“grammatical
construction, leads to a
manifest contradiction of the
“apparent
purpose of the enactment, or to
some inconvenience or
“absurdity,
hardship or injustice,
presumably not intended, a
“construction
may be put upon it which
modifies the meaning of
“the words,
and even the structure of the
sentence. This may be
“done by
departing from the rules of
grammar, by giving an
“unusual
meaning to particular words, by
altering their collocation,
“by rejecting
them altogether, or by
interpolating other words, under
“the
influence, no doubt, of an
irresistible conviction that the
“Legislature
could not possibly have intended
what its words signify,
“and that the
modifications thus made are mere
corrections of careless
“language and
really give the true meaning.
Where the main
“object and
intention of a statute are
clear, it must not be reduced
“to a nullity
by the draftsman’s
unskillfulness or ignorance of
the law,
“except in a
case of necessity, or the
absolute intractability of the
“language
used. The rules of grammar
yield readily in such cases
“to those of
common sense.
The statement
of the law set out in this text
is fully supported by a long
series of authorities commencing
with Warburton v. Loveland
(1828) 1 Hudson & B. Irish Cases
623, a case which is frequently
cited in subsequent cases upon
the point. Further the first
and most material sentence of
the text was quoted, obviously
with approval, by Lord
Alverstone, L.C.J. in the much
more recent case of the
King v.
Vasey and Lally (1905) 2 K.B.
748.”
Even in
respect of international
treaties, Clarke J in
Three
Rivers District Council & Others
v Bank of England (No. 2)
(1996)2 All ER 363 said, as
summarised in the headnote as
follows:
“Where the
court is seeking to construe a
statute purposively and
consistently with any relevant
European legislation, or the
object of the legislation under
consideration is to introduce
into English law the provisions
of an international convention
or European directive it is of
particular importance to
ascertain the true purpose of
the statute, and in those
circumstances the court may
adopt a more flexible approach
to the admissibility of
Parliamentary materials than
that established for the
construction of a particular
provision of purely domestic
legislation”
I do not
therefore see how the limited
purpose for which the appellant
seeks the subpoena in this case
is inconsistent with “the true
purpose of the statute” involved
herein, so far as immunity from
legal process is concerned. I
have no doubt that the subpoena
sought here non fit injuria
to the smooth operation of the
IFC which is the bedrock of the
immunity provision.
I entirely
agree with the appellant’s
contention that a subpoena to
the IFC’s country director to
produce something which is not
his act but is in the custody of
the IFC does not infringe his
immunity from legal process and
legal processes can lie in
respect of him as to such
matters. Equally the trial
judge’s holding that the
documents sought to be produced
are in the archives of the IFC
without foundation for the same
is erroneous.
In any event
upon proper construction of the
provisions of LN 9 in the light
of the 1992 constitutional
provisions particularly article
19(1), the provisions thereof
cannot deprive a person of his
right to subpoena the country
director or other officer or
employer of the IFC to produce
documents necessary for his
defence. That article provides
as follows:- “19(1) A person
charged with a criminal offence
shall be given a fair hearing
within a reasonable time.” In
the celebrated case of
Tuffour
v. Attorney-General (1980) GLR
637 C.A. (sitting as the
Supreme Court) it was held that
a written constitution is a
political document that mirrors
the aspirations of the people,
reflecting their past
experiences and that it is an
organic law capable of growth.
Article 11(6)
mandatorily requires that “The
existing law shall be construed
with any modifications,
adaptations, qualifications and
exceptions necessary to bring it
into conformity with the
provisions of this Constitution,
or otherwise to give effect to,
or enable effect to be given to,
any changes effected by this
constitution”. Clearly at the
time LN9 was enacted there was
no constitution in Ghana that
provided so elaborately for the
fundamental human rights as
contained in the 1992
Constitution. The construction
of LN9 must now reflect this new
situation. This court’s
decision in
Tsatsu
Tsikata v The Republic
(2005-2006) SC GLR 612
states the trite constitutional
position that the fundamental
rights are “subject to respect
for the rights and freedoms of
others
and for the
public
interest”. See article
12(2). However it does not mean
that every right and freedom of
others or the public interest
will in all cases uncritically
override the fundamental
rights. The nature, extent and
quality of that respect depend
on a balancing act of the
competing rights and freedoms.
See
Republic v Tommy Thompson Books
Ltd. (No.2) (1996-97) SC GLR
484.
This is
clearly brought to the fore when
article 12(2) is read in
conjunction with articles 11(6)
and 21(4). The latter provides
that legislation qualifying the
fundamental rights therein
referred to shall not “be held
to be inconsistent with, or in
contravention of, this article
...(e)... except so far as that
provision or, as the case may
be, the thing done under the
authority of that law is shown
not to be reasonably justifiable
in terms of the spirit of this
Constitution.” I have already,
supra, referred to the objects
to be attained by LN 9 and its
parent Act.
In matching
them against the right to a fair
trial in article 19(2) one is at
a loss to understand how the
mere testimony relating to and
production of documents in the
custody of IFC for the purpose
for which they were sought in
this case, when in the same
trial, office copies of the
relevant documents were tendered
in respect of the records of AFD
, is unacceptable. How could
such a process impede the
performance of IFC’s functions
to such a degree that it ought
to be disallowed? It must be
remembered that LN9 was enacted
pursuant to the Fund, Bank and
corporation agreements of the
United Nations Organization
which same body now, if not in
1958, at the time of LN 9, is at
the forefront of human rights
defence. It is clear that in
this new international order the
fundamental right to a fair
trial is ranked even above
relationship with other states.
In
Algemene Bank Nederland v K. F.
and others (1987) Vo. 96 ILR 344
the facts of the case as per
the headnote are as follows:
“The
International Tin Council (“the
ITC”) was an international
organization constituted, at the
relevant time, under the Sixth
International Tin Agreement,
1982 (“the Agreement”). The
members of the ITC were
twenty-three States, including
the Netherlands, and the
European Economic Community.
The object of the ITC was to
promote an orderly market in
tin. This was achieved by the
operation of a buffer stock
which entailed buying tin when
the market price fell below a
certain level and selling from
the buffer stock when the market
was too high. In September
1984, Algemene Bank Nederland
(“ABN”) lent the ITC £40,000,000
secured against various stocks
of tin in order to finance the
buffer stock price stabilization
programme. In October 1985, the
ITC announced that it was unable
to meet its commitments to third
parties and ceased trading.
The ITC
subsequently held negotiations
with its Member States and
principal creditors, including
ABN, with a view to reaching a
settlement. Following the
initial collapse of these
negotiations in 1986, ABN became
concerned that it ran the risk
of suffering a substantial loss
as the tin lodged as security
for its loan had in the meantime
fallen in value. In order to
mitigate its losses ABN then
considered the possibility of
commencing proceedings against
the Netherlands on the ground
that it had helped bring about
the ITC’s collapse. Prior to
the commencement of proceedings,
ABN, acting pursuant to the
provisions of the Open
Government Act, requested
information from the Minister
for Economic Affairs concerning
meetings of the ITC and its
sub-committees, the ITC buffer
stock price stabilization
programme and reports of the
Dutch representative attending
the ITC. This request was
refused. ABN appealed against
this decision to the Judicial
Division of the Council of State
and, pending resolution of the
case, applied to the President
of the Division for provisional
relief. In proceedings before
the President, the Minister
contended, inter alia, that as
Rules 16(2) and 19 (3) of the
ITC’s Rules of Procedure and
Rules 12(5) of the buffer stock
operational rules (“the Rules”)
, which had been issued pursuant
to the provisions of the
Agreement, restricted the
publication of information
concerning ITC meetings and its
buffer stock operations, the
disclosure of the information
sought would constitute a breach
by the Netherlands of its
obligations under the Agreement
and thus have serious
consequences for its
relationships with the ITC and
other Member States. The
Minister further contended that
he was not, therefore, required
to release the information
requested by ABN as Article 4(d)
of the Act (5) allowed the
Government to withhold
information if this was required
in the interests of maintaining
the Netherlands’ relationship
with other States.” (e.s)
Upon these
facts, the Supreme Court of the
Nederlands held as stated in the
head note thus:
“(1)
Article 68 of the Constitution,
Article 98-99 (b) of the
Criminal Code and Article 4 of
the Act did not grant persons
who had represented the
Netherlands in international
consultations with other States
exemptions from giving testimony
concerning confidential matters
arising out of those
consultations (pp. 354-5).
(2) The
obligation to maintain
confidentiality that was
incumbent upon the Dutch
representatives to the IFC
stemmed from their participation
as representatives of the
Netherlands and not necessarily
from the Rules
(p 356).
(3) The
Court of Appeal had correctly
held that the importance of
ascertaining the truth in civil
proceedings outweighed the ITC’s
confidentiality requirements (p.
356)
(4)
However, the importance of
ensuring that the truth came to
light in civil proceedings
outweighed the need to ensure
that the Netherlands was
perceived as a reliable partner
in relations with other States
(p. 357)”
Surely if the
Netherlands Supreme Court so
held with regard to civil
litigation the position is far
stronger in a criminal case. It
is not apparent whether the
Agreement involved there had
direct municipal application or
was a municipally ratified one.
But I do not think much turns on
that in the face of our
constitutional situation in
Ghana. In any case the thrust
of the reasoning therein is
amply supported by two
authorities filed by the
appellant on the 28/10/2010 and
to reflect them. I will at this
stage amend my old judgment in
this case as it stood before the
arrestment of its delivery.
They in my view, amply support
the purposive approach to the
construction of the immunity
provisions of the IFC I had
adopted.
In Salah N. Osseiran, Appellee v
International Finance
Corporation, Appellant
No.07-7122 United States Court
of Appeals for the District of
Columbia Circuit 552 F.3d
836;384 U.S. App. D.C. 183; 2009
U.S. App. Lexis 395 the
facts as per the headnote are as
follows:
“PROCEDURAL
POSTURE: Plaintiff investor
sued defendant International
Finance Corporation when their
investment deal soured. The
U.S. District Court for the
District of Columbia held that
the Corporation had waived its
immunity under the International
Organizations Immunities Act, 22
U.S.C.S. 288-288f, and it filed
an interlocutory appeal.”
Randolph,
Circuit Judge stated, inter
alia, that:
“The question
in Mendaro was whether the World
Bank had immunity from a former
employee’s sexual harassment and
discrimination suit. Although
the waiver provision contained
no exceptions for different
types of suit, the court read a
qualifier into it. The court
reasoned that an organization
would not give up immunity
unless it would gain a
“corresponding [***7] benefit
which would further the
organization’s goals. “Mendaro,
717 F.2ndat 617. A
waiver of immunity “with respect
to the World Bank’s commercial
transactions with the outside
world” made sense, the court
thought, because otherwise
private parties would be
hesitant to transact business
with the Bank Id. at 618. The
court thought language in the
charter indicated that the
waiver of immunity, like
immunity itself, was meant to
aid the Bank in accomplishing
its mission Id. The court went
on to hold that the World Bank
had not waived its immunity from
its employee’s suit because the
potential benefit of attracting
qualified staff was offset by
the Bank’s employee grievance
process and outweighed by the
disruption to its labour
practices.”
Again in
Jeorge
Vila, Appellee v. Inter-American
Investment Corporation,
Appellant No. 08-7042 United
States Court of Appeals for the
District of Columbia circuit 570
F.3d 274; 386 U.S. App. D.C.
364; 2009 U.S. App. Lexis 13279
the facts as in the headnote
are as follows:
“PROCEDURAL
POSTURE: Appellant, an
international organization (IO)
formed by countries to promote
economic development through
commercial lending, appealed the
United States District Court for
the District of Columbia’s
denial of its motion to dismiss
appellee independent banking
consultant’s unjust enrichment
claim, arguing for immunity
under the International
Organizations Immunities Act, 22
U.S.C.S. 288a(b), and asserting
that the statute of limitations
had run.”
Some of the
pertinent holdings as per the
headnotes are as follows:
“International
Law>Immunity>Sovereign
Immunity>International
Organizations
[HN3] An
organization’s immunity should
be construed as not waived under
the International Organizations
immunities Act unless the
particular type of suit would
further the organization’s
objectives. If a lawsuit could
significantly hamper the
organization’s functions, then
it is inherently less likely to
have been intended. So too,
when the benefits accruing to
the organization as a result of
the waiver would be
substantially outweighed by the
burdens caused by judicial
scrutiny of the organization’s
discretion to select and
administer its programs, it is
logically less probable that the
organization actually intended
to waive its immunity.
x
x x
International
Law>Immunity>Sovereign
Immunity>International
Organization
[HN6]
Drawing a distinction between
external activities and the
internal management of
international organizations, for
purposes of the International
Organizations Immunities Act,
reflects well-established
precedent without creating an
artificial category of waived
claims. The court still is
required to engage in a weighing
of the benefits and costs that a
waiver may entail, by focusing
on the nature of the parties’
relationship rather than the
nature of the contested
transaction and inquiring as to
the reasons why the
international organization would
waive immunity for the type of
suit involved.”
From the
foregoing it is quite clear that
the US courts can disentitle or
require reliance on almost
identical provisions on immunity
as are involved herein according
as the reliance advances or
damages the interests of the
donee. Quite clearly then when
the credibility of the IFC
report on the Valley Farms
Project is involved in this case
I do not see how a claim of
immunity by them can advance
their interests in any way.
That being so the appellant’s
appeal ought clearly to succeed.
In the
English case of
R v. Lord
Chancellor, Ex parte Witham
(1997))3 LRC 347 the court
nullified subsidiary legislation
by which the Lord Chancellor
removed exemption of indigents
from paying filing fees in
certain cases as derogating from
the right to fair trial. At
page 358 Laws J forcefully said:
“…I cannot think that the right
of access to justice is in some
way a lesser right than that of
free expression; the
circumstances in which free
speech might unjustifiably be
curtailed in my view run wider
than in which the citizen might
properly be prevented by the
state from seeking redress from
the Queen’s Courts. Indeed the
right to a fair trial, which of
necessity imports the right of
access to the courts, is as near
to an absolute right as any
which I can envisage”.
Similarly in
Norwich
Pharmacal v Customs and Excise
Commissioners (1974) A.C. 133
H.L the applicant sought
discovery of confidential
information concerning third
parties obtained under statutory
powers by Customs and Excise
Commissioners. The House of
Lords unanimously rejected the
plea of crown privilege against
production for the relevant
documents. At page 182 Lord
Morris of-Borthy-Gest forcefully
said:
“If there was
some statutory prohibition (such
as that contained in section
17(2) of the Agricultural
Marketing Act 1931: see
Rowel v.
Pratt [1938] A.C. 101) then
that, of course, would be
conclusive. In the absence of
any such prohibition it seems to
me that in the special
circumstances of this case, and
with some support from
authority, the interests of
justice warrant the court in
making the desired order unless
there are some features of the
public interest which are of
such weight as to out-balance
the public interest of advancing
the cause of justice. I can
well appreciate the importance
of the considerations which were
advanced and which undoubtedly
carry some weight, but having
considered them in relation to
the very limited order now
sought I am firmly of the view
that the balance of the public
interest warrants the making of
the order as now requested.”
(e.s)
I have no
doubt that but for the English
constitutional principle that
Parliamentum omnia potest,
the House of Lords would have
reached the same conclusion were
they to operate under a
constitution such as ours.
It is clear
that if Ghanaians are to be free
from the effects of decisions
such as the infamous case of
Re Akoto
(1961) 1 GLR 523 S.C. when
an opportunity of upholding
fundamental human rights was
allowed to slip away from the
Supreme Court, the courts of
today should strive to uphold
these rights whenever a
construction in that regard is
possible.
The attitude
of the 1992 Constitution towards
international law and its proper
application is clearly stated in
article 40 of the constitution
in Chapter 6, The Directive
Principles of State Policy. It
is as follows:-
“40.International relations
In its
dealings with other nations, the
Government shall
(a)
promote and protect the
interests of Ghana
(b)
seek the establishment of a just
and equitable international
economic and social
order,
(c)
promote respect for
international law, treaty
obligations and the settlement
of international
disputes by peaceful means,
(d)
adhere to the principles
enshrined in or as the case may
be, the aims and ideals of,
(i)
the Charter of the United
Nations,
(ii)
the Charter of the Organisation
of African Unity,
(iii)
the Commonwealth,
(iv)
the Treaty of the Economic
community of West African
States, and
(v)
any other international
organisation of which Ghana is a
member.”
But the core principle is in
article 73, as follows
“The
Government of Ghana shall
conduct its international
affairs in consonance with the
accepted principles of public
international law and diplomacy
in a manner consistent with the
national interest of Ghana”
To ensure
that the national interest is
paramount, salus populi
suprema lex, article 75
incorporates the dualist
principle as follows:-
“(1) The
President may execute or cause
to be executed treaties,
agreements or conventions in the
name of Ghana.
(2) A
treaty, agreement or convention
executed by or under the
authority of the President shall
be subject to ratification by –
(a) Act of Parliament or
(b) A
resolution of Parliament
supported by the votes of more
than one-half of all the members
of Parliament.”
All these
reflect our national history and
aspirations as enunciated in
Tuffuor v Attorney-General,
supra. Clearly these provisions
are designed to prevent the
effects of the over
concentration of the President
on foreign or international
policy perceived to have
occurred under an otherwise very
outstanding President Nkrumah of
the First Republic of Ghana.
The Netherlands Supreme Court
has pre-empted such a situation
in the Algemene Bank Nederland v
K.F. and others, case, supra and
the Ghanaian experience
reflected in the above quoted
constitutional provisions of our
Constitution is thereby
vindicated and strengthened.
The welfare
of the people of Ghana in the
democratic and modern sense is
the grundnorm of Ghanaian law as
stated in article 1(1) as
follows:
The
Sovereignty of Ghana resides in
the people of Ghana in whose
name and for whose welfare the
powers of government are to be
exercised in the manner and
within the limits laid down in
this Constitution.”
These are the
considerations which have pulled
my mind to the construction I
have arrived at.
Section 3 of
article VI of LN 9 of 1958
provides with regard to the IFC
itself as follows:
“Actions may
be brought against the
Corporation only in a court of
competent jurisdiction in the
territories of a member in which
the Corporation has an office,
has appointed an agent for the
purpose of accepting service or
notice of process, or has issued
or guaranteed securities. No
action shall, however, be
brought by members or persons
acting for or deriving claims
from members. The property and
assets of the corporation shall
wheresoever located and by
whomsoever held, be immune from
all seizure, attachment or
execution before the delivery of
final judgment against the
Corporation.”
It is clear
from this provision that the IFC
can be sued in the situation
therein sated. The parties do
not dispute that this situation
obtains in Ghana in respect of
the IFC. There is no other
legal barrier with regard to
legal process as to the IFC.
Clearly then legal process like
a subpoena duces tecum
can issue to the IFC itself and
the courts below erred in
holding otherwise.See
Lutcher
SA.Celulose e Papel and F.
Lutcher Brown, Appellants, v.
Inter-American Development Bank,
Appellee
No. 20166
United States
Court Of Appealls For The
District Of Columbia
127 U.S. App. D.C. 238, 382 F.2d
454, 1967 U.S App. Lexis 5639
For all the
foregoing reasons I would allow
the appeal.
(SGD) W. A.
ATUGUBA
JUSTICE OF THE SUPREME COURT
AKOTO -
BAMFO, J.S.C.
I had the
opportunity of reading before
hand the opinion of my brother
Atuguba JSC and I agree with his
conclusion that the appeal be
allowed in it entirety and I
therefore have nothing useful to
add.
(SGD) V.
AKOTO-BAMFO
JUSTICE OF THE SUPREME
COURT
SOPHIA
ADINYIRA (MRS.) JSC:
This appeal
against the ruling of the Court
of Appeal dated 19 December 2006
was fixed for judgment on 11
June 2008 by this Court. On the
said date the Appellant took the
Court by surprise by praying
that we arrest judgment due to
some applications he has filed
in respect of some other aspect
of the substantive case that was
pending before another panel. We
obliged but unfortunately the
judgment could not be delivered
as one panel member later
declined jurisdiction in the
matter for reasons I need not
discuss here. When the case was
relisted the panel had to be
reconstituted as a member of the
original panel has since retired
and so the appeal had to be
heard de novo.
Meanwhile
this appeal was overtaken by
events. The appellant was
convicted and sentenced by the
High Court and he was granted
full presidential pardon in
December 2008. There is also an
appeal pending in the Court of
Appeal against the conviction
and sentence and consequently we
might perhaps over-reach the
decision of the Court of Appeal
by our ruling.
However my
brother Atuguba is of the view
that the matter is not moot so
long as it involves a
constitutional issue. Be it as
it may, I have decided to
express my opinion as I depart
from my brother on one issue in
his opinion.
The issue is
whether a
claim for diplomatic immunity
from legal proceedings
over-rides the constitutional
right of an accused person to
fair trial under Article 19 (2)
(g) of the 1992 Constitution.
The facts of
the case relevant to this appeal
are that the Appellant, Mr.
Tsatsu Tsikata one time the
Chief Executive of Ghana
National Petroleum Corporation
(GNPC) was standing trial on 3
counts for willfully causing
financial loss to the state
contrary to section 179A (3) (a)
of the Criminal Code of 1960,
Act 29; and on one count for
intentionally misapplying Public
property contrary to section
1(2) of the Public Property
Protection Decree 1977, SMCD
140.
On 9 December
2005, the Fast Track High Court
Accra presided over by Henrietta
Abban J.A. (sitting as an
additional High Court Judge),
issued at the instance of the
appellant, a subpoena directed
at the country director of the
International Finance
Corporation (IFC) to produce to
the Court documents on Valley
Farms Project promoted by the
Africa Project Development
Facility from 1987-1990. Counsel
for the IFC appeared in Court to
raise an objection on the
grounds that the said country
director enjoyed diplomatic
immunity from legal proceedings
which he does not intend to
waive. The trial judge upheld
the claim of diplomatic immunity
and rescinded the subpoena in
respect of the country director
of the IFC.
Counsel for
the appellant then applied to
the Court to issue a fresh
subpoena directed at the IFC as
an institution to come to
produce those documents. Counsel
raised the same objection that
the IFC was also claiming
immunity from legal proceedings,
and it was upheld. The Court of
Appeal affirmed the ruling by
the High Court.
The grounds
of appeal and additional grounds
of appeal were quite copious and
I would refer to the salient
issues that call for
consideration in this opinion.
One of the
main grounds of appeal urged on
this Court was that:
“the failure
of the trial court to order the
Country Director of the IFC to
appear for the defence erred in
failing to recognize and enforce
the fundamental human right of
the accused as expressed in
clear and mandatory language in
Article 19 (2) (g) of the 1992
Constitution to obtain in
attendance and carry out the
examination of witnesses to
testify on the same conditions
as those applicable to witnesses
called by the prosecution.”
It was
counsel’s submission that, even
if there was a right of the IFC
country director “to immunity
from the judicial process in
Ghana conferred by statute, this
would be subordinate to the
fundamental human rights in the
Constitution which cannot be
derogated from by statute.”
It is
worthwhile to mention that this
Court is committed to promote
respect for and enforcement of
fundamental human rights and
freedoms. This Court has
therefore in a significant
number of cases declared as
unconstitutional statutes and
statutory provisions that are in
conflict with the fundamental
human rights and freedoms as
enshrined in our 1992
Constitution. Counsel referred
to some of these cases namely,
the cases of
NPP V.
IGP [1993-4] 2GLR 495, Osei v.
The Republic (No.2) and
Maikankan v. The Republic.
However the considerations that
informed those decisions were
different from what is presently
before this court.
It appears to
me that the issue before us
brings to the fore the
relationship between municipal
(domestic) law and international
law and how far the courts can
invoke international and
regional human rights norms in
deciding human rights issues. It
also touches on how the Courts
are constitutionally required to
hold in balance the scales of
justice between competing
individual fundamental freedoms
and human rights on one hand and
national or public interests on
the other hand.
Article 19 of
the 1992 Constitution
of Ghana
on the fundamental human right
to fair trial provides in part
that:
“(1) a person
charged with a criminal offence
shall be given a fair hearing
within a reasonable time by a
court.
(2) A person
charged with a criminal offence
shall -
(g) be
afforded facilities to examine,
in person or by his lawyer, the
witnesses called by the
prosecution before the court,
and to obtain the attendance and
carry out the examination of
witnesses to testify on the same
conditions as those applicable
to witnesses called by the
prosecution” (Emphasis mine)
The right to
fair trial has been described in
international law as jus cogens,
a peremptory norm of general
international law which is
defined under Article 53 of the
Vienna Convention on the Law of
Treaties as:
“A norm
accepted and recognized by the
international community of
States as a whole as a norm from
which no derogation is permitted
and which can be modified only
by a subsequent norm of general
international law having the
same character”
Some other
examples of jus cogens norms are
genocide, crimes against
humanity and slavery.
Similarly,
diplomatic immunities and
privileges accorded to
diplomatic agents and
international organizations as
provided by
Articles
22, 23, 24, and 27 to 40 of the
Vienna Convention are also
assented to and recognized and
adopted by the international
Communities of States of which
Ghana is no exception. Signing a
treaty imposes a moral
obligation on the state not to
do anything that would deviate
from the object and purpose of
the treaty. A state becomes
legally bound to a treaty after
ratification, accession,
acceptance, approval or
signature where the treaty so
stipulates.
See
Article 2 (b), 12 (1) (a) of
Vienna Convention on the Law of
Treaties.
In
fulfillment of its international
obligations, Ghana has
incorporated into its domestic
laws the Vienna Conventions on
diplomatic immunities and
privileges. This domestic
statute is the
Diplomatic Relations Act, 1962,
Act 148. These provisions on
diplomatic immunities and
privileges of the Vienna
Conventions as contained in the
First Schedule of Act 148,
therefore have the full force of
law in our courts.
Section 1 of
Act 148 provides:
“Articles 22,
23, 24, and 27 to 40 of the
Vienna Convention (which
regulate the immunities and
privileges, including exemption
from taxation, freedom of
communication, inviolability of
premises and immunity from civil
and criminal jurisdiction, to be
conferred upon diplomatic
agents) shall have the force of
law and references therein to
the receiving State shall, for
this purpose, be construed as
references to the Republic.”
And section 2
provides that:
“Section
2—International Organisations
The President
may, by legislative instrument,
make Regulations extending any
or all of the immunities and
privileges conferred on
diplomatic agents by virtue of
this Act to prescribed
organisations and prescribed
representatives and officials,
subject to such conditions and
limitations as may be
prescribed.” (Emphasis mine)
Previous to
that the International Bank,
Fund and Finance Corporation Act
1957 was passed followed by a
promulgation of the
International Bank, Fund
and Finance Corporation
(Immunities and Exchange
Contracts) Order, 1958 LN 9,
whereby diplomatic immunity was
conferred on the directors and
officers of IFC.
For our
purpose, Article 31 (2) of the
Vienna Conventions on Diplomatic
immunity states that:
“A diplomatic
agent is not obliged to give
evidence as a witness.”
Although, LN
9 is a subsidiary legislation it
forms part of the laws of Ghana
as stated in Article 11 (1) (c)
of the 1992 Constitution. It is
enforceable so long as it is
consistent with the provisions
of the Constitution. Though an
opinion has been expressed that
LN9 is a subsidiary legislation
and therefore cannot override a
Constitutional right to fair
trial when an accused person is
requesting such an officer to
appear as his witness, I am of
the view that this Court cannot
overlook or disregard other
considerations such as the
rights of others and what has
been described as “relevant
counterbalancing public interest
considerations” per Justice
Date-Bah J.S.C.
The 1992 Constitution that
guarantees these fundamental
human rights and freedoms in
Chapter 5 at the same time
limits its application, by the
proviso of Article 12 (2). It is
an established principle of
interpretation that
constitutional provisions just
like any statute, should not be
interpreted in isolation but
must be interpreted in their
entirety taking into account
other provisions of the same
Constitution. Thus the
enforcement of the rights
conferred under Article 19(2)
(g) is subject to Article 12
(2).
Public
interest in relation to the
rights and freedoms enshrined in
Chapter 5 of the Constitution
has been discussed extensively
in the case of
Awuni v.
West African Examination Council
[2003-2004] 1 SCGLR 471.
Justice Sophia Akuffo JSC at
page 505 said in respect of
these rights and freedom that:
“Thus, the
Judiciary is also required to do
everything constitutionally and
legally possible to assure that
in the exercise of its function,
these rights and freedoms are
upheld and respected; subject
of course to a concomitant
respect for the rights and
freedoms of others and for
public interest.” [Emphasis
mine]
Justice
Date-Bah at page 564 also has
this to say:
“Article 12
(2) of the Constitution
contains, inter alia, a public
interest proviso to the
enforcement of the fundamental
rights and freedoms of the
individual enshrined in Chapter
5 of the Constitution. Article
12 (2) is in the following
terms:
“(2) Every
person in Ghana, whatever his
race, place of origin, political
opinion, colour, religion, creed
or gender shall be entitled to
the fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest.”
(The emphasis mine)
My
understanding of this provision
is that an individual’s
entitlement to a fundamental
human right is to be interpreted
in such a way as not to impair
public interest.”
I fully
endorse the views expressed by
my learned sister and brother
Justices in the Awuni case that
some degree of balancing between
the enforcement of the rights of
an individual and that of other
individuals and public interest
respectively has to be
respected. Wood JSC (as she then
was) in the case of
The
Republic v, Court of Appeal,
Accra: Ex parte Tsatsu Tsikata
[2005-2006] SCGLR 613, where
in an application for certiorari
the same submission has been
that the appellant’s fundamental
rights under Article 19(2)(g)
have been violated by the trial
court’s acceptance of the plea
of immunity commented that:
“The right
envisaged under Article 19(2)
(g) is like all other rights
unbridled or unlimited, the
court cannot be said to have
been in error. Indeed it is
trite learning that the right to
compel a witness to testify in
court is clearly subject to the
witness’s rights and privileges,
which include the right to
immunity and such other
protection as is provided under
the
Evidence Act,1975, (NRCD 323)”
From the
foregoing, I hold that the
appellant’s constitutional right
to call any witness of his own
choice to testify on his behalf
is not absolute but limited to
the rights and privileges of
that witness as required under
Article 12 (2). I consider
section 8 of LN 9 on diplomatic
immunity of IFC officials as one
of such restrictions envisaged
under Article 12 (2) of the
Constitution. The country
director of the IFC is not a
compellable witness under both
our domestic and international
laws by virtue of his diplomatic
immunity. In that respect it is
my considered opinion that once
the country director of IFC has
declared his intention through
counsel that he did not intend
to waive his immunity, his claim
of right to immunity has to be
respected and that should
over-ride the corresponding
right of the appellant to compel
him to be his witness by the
issue of a subpoena.
In addition,
there is the balance of public
interest to be considered as
required by Article 12 (2). As
said earlier, Ghana as a member
of the U.N. is a signatory to
major international conventions,
treaties, protocols and
agreements including the Vienna
Conventions under reference and
is therefore obliged to keep to
her commitments. The Government
of Ghana is also obliged by
Article 73 of the 1992
Constitution:
“[T]o
conduct its international
affairs in consonance with the
accepted principles of public
international law and diplomacy
in a manner consistent with the
national interest of Ghana.”
It is the
opinion of my esteemed brother
Justice Atuguba JSC that the
fundamental human right to a
fair trial is ranked above
relationship with other states.
With due respect, I regard this
statement as too sweeping. My
point of departure from his
opinion is that the case of The
Algemene
Bank Nederland v. K.F. and
Others (1987) 96 ILR 344
cited by the appellant in his
submissions is clearly
distinguishable from the facts
of this appeal before us. In the
Algemene case the minister was
not claiming diplomatic immunity
but rather claiming that the
information sought was
privileged by confidentiality.
The Judiciary
as the arm of government
entrusted under the Constitution
with the responsibility to
administer justice is obliged to
apply international norms in the
administration of justice. This
Court, by recognizing the claim
to immunity by the Country
Director of IFC is thereby
affirming an internationally
acceptable norm of diplomatic
relationships among states and
international organizations
which has been incorporated in
our domestic laws, viz. The
Diplomatic Relations Act, 1962,
Act 148. This Court ought to
promote respect for
international law, and treaty
obligations. It is my considered
opinion that such an approach is
in the national interest. This
is one area where the Court in
balancing the interest of an
individual as against the
national or public interest
should allow public interest to
prevail.
From the
foregoing I hold that the
Country Director of IFC enjoys
diplomatic immunity under LN9
and therefore having indicated
to the court through counsel
that he did not intend to waive
such immunity, he was not a
compellable witness. I
accordingly hold that the Court
of Appeal did not err in
affirming the decision by the
trial court in rescinding the
subpoena she had earlier issued.
The appeal is therefore
dismissed on this ground.
The second
major issue raised in this
appeal is whether IFC as an
international financial
institution is entitled to the
same immunity from any form of
judicial process like other
international organizations and
its directors and officers.
It was a
ground of appeal that the Court
of Appeal gravely erred when it
relied on a statutory provision
granting immunity to the
International Monetary Fund (IMF)
from judicial processes to
decide the issue before the
Court about immunity of the IFC.
I agree with
the conclusion reached by my
brother Justice Atuguba that the
IFC has no immunity under LN9
and therefore the appeal on this
ground be allowed.
From the
foregoing the appeal succeeds in
part.
(SGD) S. O.
A. ADINYIRA
JUSTICE OF THE SUPREME
COURT.
AKUFFO, J.S.C.
I have
previously read the opinion of
my learned sister Justice
Adinyira and agree with her
reasoning and conclusions.
(SGD) S.
A. B. AKUFFO (MS.)
JUSTICE
OF THE SUPREME
COURT
ANSAH, J.S.C.
I read the
judgment by my brother Atuguba
JSC as well as what my sister
Adinyira JSC is about to read
and I agree with her judgment,
reasons and conclusions that the
appeal be allowed in part.
(SGD)
J. A. ANSAH
JUSTICE OF THE SUPREME
COURT
COUNSEL:
E. V. O.
DANKWA FOR THE APPELLANT
MERLEY WOOD
O.S.A (WITH HER MRS. SEFAKOR
BATSE AND RICHARD GYAMBIBY A.S.A)
FOR RESPONDENT.
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