Samson’s Take on Adu-Boahene: GHS49.1m stolen, or a story the evidence cannot sustain

The High Court on Thursday dismissed an application by lawyers for former National Signals Bureau Director General Kwabena Adu Boahene and his co-accused to strike out portions of the Attorney General's written submissions.

Any suggestion that this signals the outcome is completely ignorant commentary on the law and procedure. Justice Achibonga's holding is essentially that a complaint about smuggling evidence or wrong attribution of testimony is immaterial because the court will only rely on the evidence on record and not merely what a lawyer says about it in his submissions.

If nonexistence evidence is found out, the court will expunge it. In fact, this early stage is only for prima facie determination and not pronouncement of guilt. Remember the famous ambulance trial involving Dr Cassel, Ato Forson and Richard Jakpa.

The High Court rejected their no-case submissions, but the Court of Appeal overturned that decision, acquitting and discharging them without requiring them to enter or, as we say, open their defence. That is precisely the kind of early termination the Adu Boahene defence now seeks.

If they are unsuccessful, they get to make their full case in a full trial. The question at this stage is whether the prosecution has presented enough evidence to require the accused persons to defend themselves at all. After calling four witnesses, the prosecution closed its case.

The defence has filed a 142-page submission of no case to answer. The Attorney General has responded in 25 pages, insisting there is a case to answer. When Attorney General Dr Dominic Ayine first announced this case, he alleged that 49.1 million Ghana cedis had been stolen through a fictitious US$7 million cybersecurity procurement.

He also spoke of luxury vehicles, expensive houses and properties abroad. NewsFile examined those allegations extensively. I took some flak for appearing to defend the Attorney General's decision to announce them publicly.

My position remains: the Attorney General has a right to inform the public, but the right to announce allegations is not a license to pronounce guilt. I'm a lawyer; I know that too well.

NewsFile has continued following the trial. We have even made a formal information request to ISE Holdings Limited, the Israeli company at the centre of the alleged procurement. But let's find out why the defence believes they have no case to answer. Here are five points from their 142-page submissions.

First, was the entire 49.1 million stolen? That's a question they ask. The defence acknowledges that three cheques were issued and the money moved. But they dispute the allegation that the entire amount was dishonestly appropriated. They point to banking records and transactions involving the National Security Coordinator as they seek to discount a total of 34 million Ghana cedis.

That's nearly 70% of the 49.1 million allegedly stolen. The prosecution has the burden to satisfactorily trace these funds and establish which transactions constituted dishonest appropriation. Money moving through an account is not by itself proof of theft.

The second argument important to the defence is that they ask the question: who authorised the transactions anyway, to be able to prove a crime? The defence argues that the source account was controlled by the National Security Coordinator for special security operations. They also rely on evidence that the coordinator signed or authorised the cheques. That's the difficulty they put the prosecution in.

The coordinator, at the material time, is deceased. But why were other appropriate national security officials not called to clarify the authorisation procedures and purpose of the payments? That's a question they ask. National security cannot excuse stealing, but neither can the institutional framework be ignored when determining whether stealing occurred.

Third, they ask, was the cybersecurity procurement fictitious? This was central to the Attorney General's original public pronouncement. The defence challenges the prosecution's account of the contracts, invoices, and alleged non-delivery. They point to documents concerning ISE Holdings Limited and argue that the prosecution has not established that the procurement was fictitious.

That is why Newsfile has sought information directly from ISE Holdings Limited. Was there a genuine contract? What was paid for? What was supplied? The allegation of fictitious procurement must equally rest on evidence.

Fourth, what became of the luxury properties so prominently announced? The Attorney General's initial disclosures painted a picture of substantial personal enrichment. The defence challenges whether the prosecution has established that the identified houses, vehicles, and other assets were acquired with the allegedly stolen funds.

Owning expensive property may attract the attention of law enforcement. They concede, but it does not, without more, prove that stolen money paid for those properties.

Fifth, and finally, what independently establishes the criminal involvement of Adu- Boahene's wife? The defence challenges whether the corporate relationship and financial transactions relied upon by the prosecution establish that Angela Adjei Boateng knowingly participated in the alleged crimes. Marriage is not conspiracy. Directorship is not proof of criminal intent.

Proof she did any wrong. The defence shouts the law loudly. I defended the Attorney General's right to inform the public when the case broke. I equally defend the accused person's right to challenge the allegations and insist that the state meet its burden. Accountability demands scrutiny of both those accused of stealing public money and those entrusted with prosecuting them.

So, after four witnesses, has the state established a case to answer on the alleged 49.1 million Ghana Cedi's theft? The supposedly fictitious procurement, the disputed assets, and the criminal responsibility of each accused? While the public commentary points to holes in the prosecution's case, the decision rests with the judge.

What matters is what the evidence actually establishes, not even the dramatic announcement and confident predictions at the start of the case or what you say. Let's never confuse the power to ….. with the proof required to convict. And that is my take.