An Accra High Court hearing the case of Daniel Duku, a former Chief Executive Officer of the Venture Capital Trust Fund (VCTF) and four others has rejected the State’s agreement based on Section 35 of the Court’s Act.
According to the court, Section 35 gives a person charged with an offence, the chance to offer restitution and reparation.
The Court presided over by Mr Justice Anthony Oppong, however, said Section 35 (5), offered the court the chance to look at the offer and if it was not satisfied it could reject the offer and the accused stand trial.
“The Court has looked at the agreement and is dissatisfied, especially when the accused have offered to pay the money by installments rather than paying a lump sum,” he added.
He said the Court would reject the offer and proceed with the trail.
Initially, the Director of Public Prosecutions (DPP), Mrs Yvonne Atakora Obuobisa had told the Court that the prosecution has filed the agreement pursuance with Section 35 of the Court Act, which was signed between the State and Duku and two others.
At the last adjourned date, the Court directed the DPP to draft the agreement based on International best practice payment terms for which accused have pleaded guilty for allegedly causing financial loss of GH¢42.8 million to the state.
Duku was appointed in 2010, and his Executive Assistant, Irene Anti-Mensah, Frank Aboogye Mensah, the husband of Irene had indicated their willingness to refund GH¢15 million as restitution to the state.
The other accused are Richard Lassey Agbenyefia, a former National Democratic Congress Member of Parliament for Keta and a former member of the Board of Trustees of VCTF; Kofi Sarpong, an Investment Officer of VCTF and Charity Opoku also known as Charity Ameyaw, an accountant at VCTF.
They have been variously charged with 86 counts of willfully causing financial loss to the state, abetment of crime, stealing, defrauding by false pretences and issuing of false cheques.
The Court had directed the State to use a Kenyan example of Plea Bargaining in drafting its terms of agreement for payment.
According to the court, the State should also explain to the accused for them to understand the consequences of their plea and also their right to appeal after pleading guilty.
The Court held that it wanted to ensure that the right thing was done and also that the accused must pay more than GH¢42.8 million that the State contended they have misappropriated.
“It would be good to adopt best practices like the Kenyan example. The accused persons must understand why they are pleading guilty. I have look at what you have filed and it looks like you need some guidance,” the trial judge said.
The DPP drew the court’s attention to the fact that Kenya’s example was about Plea Bargai`ning Agreement and Ghana was yet to develop that.
“If it was about Plea Bargaining agreement, Ghana did not have that but we have to go by Section 35 of the Court’s Act,” she said.
Duku, is standing trial with five others for allegedly causing financial loss of GHC42.8 million to the state, but has decided to refund GH¢15 million as restitution to the state.
Two other accused Irene and Frank Aboagye Mensah, a couple have entered into an agreement with the Attorney-General (A-G) to pay to the state in line with Section 35 of the Courts Act, 1993 (Act 459).
The DPP on June 5, this year, informed the Court that the three accused have reached an agreement with the A-G, and therefore the state would like the court to adopt the agreement and convict the accused as guilty.
The presiding judge, however, said the agreement for restitution had not been fully executed by the accused and the A-G, since both parties have not signed it.
He, therefore, directed the two sides to fully execute the agreement and file it at the court for it to determine it per Section 35 of Act 459.
Under Section 35 (1) of Act 459, a person accused of an offence which had caused “economic loss, harm or damage to the state or state agency may inform the prosecutor whether the accused admits and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.
Additionally, the Act explains further that when an accused makes an offer of restitution, the prosecution shall consider whether the offer is acceptable or not and inform the court.
In the event the offer is not acceptable to the prosecution, the trial shall continue, but if the offer is acceptable, the accused will plead guilty and the court will convict him on his own plea.
When passing sentence, the court will then order the accused to pay the restitution based on conditions set by the court.
However, per Section 35 (7) of Act 459, if the accused person fails to fulfill the conditions set by the court for the payment of the restitution, the court shall pass a custodial sentence on him.
The case has been adjourned to July 3, 2020 for case management conference.