Wakilii

Tsikata v Ghana (Communication 322 of 2006)

African Commission on Human and Peoples' Rights · [2014] ACHPR 2 · 2014 Petition Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to African Commission challenging criminal trial proceedings in Ghana on grounds of retroactive criminalization and denial of fair trial rights
Decision
Communication partly allowed with finding of breach of Article 26 of the African Charter; no violation found for fair trial grounds

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the trial for acts committed in 1996 under legislation enacted in 1993 did not violate the prohibition on retroactive criminalization. The lower standard of proof at close of prosecution's case does not breach the presumption of innocence. However, the Respondent State breached Article 26 by tacitly interfering with the Supreme Court's independence through targeted appointment of a Justice to secure reversal of its earlier decision declaring the Fast Track Court unconstitutional.

Outcome

Communication partly allowed with finding of breach of Article 26 of the African Charter; no violation found for fair trial grounds

Facts

Complainant was tried in Ghana for wilfully causing financial loss to the State. He challenged the constitutionality of the Fast Track Court before the Supreme Court, which initially ruled in his favour. Following the appointment of a new Supreme Court Justice and public statements by executive officials, an enlarged Supreme Court reversed the earlier decision by 6-5 majority. Complainant was tried before the Fast Track High Court on charges relating to acts in 1996 under legislation enacted in 1993. His submission of no case to answer was dismissed without reasons. Court of Appeal upheld the decision, referring to repealed legislation. Supreme Court confirmed the ruling, holding that proof beyond reasonable doubt standard applies only at end of trial, not at close of prosecution's case. The court also upheld IFC immunity from testifying.

Issues

  1. Whether the trial of the complainant for 'wilfully causing financial loss to the State' constituted retroactive application of criminal law contrary to Article 7(2) of the African Charter.
  2. Whether the refusal of courts to apply the 'beyond reasonable doubt' standard at the close of prosecution's case violated the complainant's right to be presumed innocent under Article 7(1)(b) of the African Charter.
  3. Whether the dismissal of the complainant's submission of no case to answer without reasons violated the presumption of innocence under Article 7(1)(b).
  4. Whether the Court of Appeal's reference to a repealed law denied the complainant his right to defence under Article 7(1)(c) of the African Charter.
  5. Whether the court's acceptance of the International Finance Company's immunity claim violated the complainant's right to call witnesses under Article 7(1)(c) of the African Charter.
  6. Whether the Respondent State breached its duty under Article 26 of the African Charter to guarantee the independence of the judiciary.

Orders

  • There was no violation of Article 7(1)(b), (c), and 7(2) of the African Charter.
  • The Respondent State breached its duty to guarantee the independence of courts as required under Article 26 of the African Charter.
  • The finding of breach constitutes a sufficient remedy.
  • The Respondent State is called upon to desist from measures such as targeted appointment of judicial officers that would undermine the independence of, and public confidence in, courts.

Rules and key headnotes

Constitutional Law — Judicial Independence — Executive Interference — Targeted Appointment of Judges
When an executive appoints a judicial officer in contemplation of a specific case which would be lodged by that executive or its agent to the court to which such appointment is made, the appearance of independence of such court is seriously impaired, constituting a breach of the duty to guarantee judicial independence under Article 26 of the African Charter.
Criminal Procedure — Presumption of Innocence — Standard of Proof — No Case Submission
The application of a lower standard of proof at the close of prosecution's case than 'proof beyond reasonable doubt' for determining whether an accused has a case to answer does not violate the presumption of innocence under Article 7(1)(b) of the African Charter. The standard of proof beyond reasonable doubt applies when all evidence including defence evidence has been received, not at the intermediate stage of determining whether a prima facie case exists.
Criminal Law — Retroactive Criminalization — Continuing Offences — Temporal Application
Where criminal charges are based exclusively on acts performed after the relevant criminal statute came into force, there is no retrospective application of criminal law prohibited by Article 7(2) of the African Charter, even if those acts originated from conduct commenced before the statute's enactment.
Human Rights — Fair Trial — Right to Call Witnesses — Immunity from Process
The right to call witnesses under Article 7(1)(c) of the African Charter is not absolute and may be subject to limitations including immunity from court process where such immunity is recognized under domestic law consistent with customary international law.
Administrative Law — Exhaustion of Local Remedies — Interlocutory Applications — International Complaints
For purposes of exhaustion of local remedies under Article 56(5) of the African Charter, where a complainant has taken interlocutory human rights challenges through the full hierarchy of domestic courts including the highest court, local remedies are exhausted with respect to those specific human rights issues even where the underlying criminal trial continues.

Legislation cited (12)

  • African Charter on Human and Peoples' Rights Article 7(1)
  • African Charter on Human and Peoples' Rights Article 7(1)(b)
  • African Charter on Human and Peoples' Rights Article 7(1)(c)
  • African Charter on Human and Peoples' Rights Article 7(2)
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 56
  • Constitution of Ghana Article 19(5)
  • Constitution of Ghana Article 19(2)(g)
  • Criminal Code Act 1960 (Ghana) s.179A(3)(a)
  • Criminal and Other Offences (Procedure) Act 1960 (Ghana) s.173
  • Criminal and Other Offences (Procedure) Act 1960 (Ghana) s.174(1)
  • Public Property Decree 1977 (Ghana) s.1(2)

Cases cited (27)

  • Ligue Camerounaise des Droits de l'Homme v Cameroon (Communication 65/92)
  • Kenya Human Rights Commission v Kenya (Communication 135/94)
  • John K. Modise v Botswana (Communication 97/93)
  • Motale Zacharia Sakwe v Cameroon (Communication 230/99)
  • Legal Resources Foundation v Zambia (Communication 211/98)
  • Civil Liberties Organisation and Others v Nigeria (Communication 218/98)
  • International Pen and Others v Nigeria (Communications 137/94, 139/94, 154/96, 161/97)
  • Law Office of Ghazi Suleiman v Sudan (Communications 222/98, 229/99)
  • Media Rights Agenda v Nigeria (Communication 224/98)
  • Sir Dawda K. Jawara v The Gambia (Communications 147/95, 149/96)
  • Marcel Wetsh'okonda Koso and Others v Democratic Republic of Congo (Communication 281/2003)
  • Lawyers for Human Rights v Swaziland (Communication 251/2002)
  • Institute for Human Rights and Development in Africa v Angola (Communication 292/2004)
  • Free Legal Assistance Group and Others v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Bernard Lubuto v Zambia (Communication 390/1990)
  • Krause v Switzerland (Application No. 7986/77)
  • Minelli v Switzerland (Application No. 8660/78)
  • Allenet de Ribemont v France (Application No. 15175/89)
  • Vargas-Machuca v Peru (Communication 906/2000)
  • Karttunen v Finland (Communication 387/1989)
  • Puhk v Estonia (Application No. 55227/00)
  • Veeber v Estonia (No. 2)
  • Ecer and Zeyrek v Turkey
  • Campbell and Fell v United Kingdom (Application Nos. 7819/77, 7878/77)
  • Belilos v Switzerland (Application No. 10328/83)
  • Gonzalez del Rio v Peru (Communication 263/1987)
  • Gridin v Russian Federation (Communication 770/1997)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Tsikata v Ghana (Communication 322 of 2006) [2014] ACHPR 2 (14 October 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.