REPUBLIC VRS. ADJEI (CR/0257/2024) [2024] GHAHC 264 (24 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON WEDNESDAY, 24TH DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT SUIT NO.: CR/0257/2024 THE REPUBLIC VRS. ADJENIM BOATENG ADJEI ========================================================================== RULING ========================================================================== The Accused/Applicant herein caused to be filed on his behalf this application on the 8th July, 2024 for the release of his passport which have been taken in by the Registrar of the Court as part of the conditions of the grant of bail to him on 22nd April 2024. The Applicant has been charged per a charge sheet filed on 17th April 2024 by the Office of the Special Prosecutor on four (4) counts of using public office for profit and four (4) counts of indirectly influencing the procurement process to obtain an unfair advantage in the award of the procurement contract. These two offences are charged under Sections 179 (C) (a) of the Criminal Offences Act, 1960 (Act 29) and Section 92 (2) (b) of the Public Procurement Act, 2003 (Act 663). The case is at this stage is at the case management conference stage. Per the supporting affidavit to the instant application, the Applicant deposes at paragraph 12 Page 1 of 5 that it has become necessary for him to travel to the United States of America with his six (6) years old girl child who is also a citizen of the United States to participate in a two (2) week Summer camp. The said summer camp is organized for children between the ages of three (3) to six (6) years and it is being organized this year from the 1st July 2024 to the 9th August 2024, with a minimum participation period of two weeks. According to the affidavit, the Applicant has chosen to register for his child to participate in this summer camp from 29th July 2024 to 9th August 2024 so that he can attend the Court sittings of the 26th July 2024 before embarking on this trip. Again, the affidavit indicates that the purpose of this trip for the child is to afford the child an opportunity to “familiarize and gradually integrate her into the educational and cultural system of the United States of America, and thus prepare her for the education in the USA upon completing her present level of education in Ghana”. Applicant has also deposed that this application is in the interest of the child and important for her psychological preparation and development. The application further states that the Applicant has no intention of absconding from the jurisdiction as he has strong social and economic ties and interests in Ghana. There has been an affidavit in opposition filed by the Republic through the Office of the Special Prosecutor on 12th July 2024 that the application is vehemently opposed on the basis that it discloses no exceptional circumstances to warrant its grant in order to vary the orders of the Court as per the bail conditions. The Prosecution deposes that the Applicant has failed to demonstrate what accounts for the necessity to send the six (6) year old child to the United State of America. Again, the Prosecution deposes that the Applicant has again failed to demonstrate that the mother of the six (6) year old is not available, nor resident in the jurisdiction or possesses an American visa which will enable her to travel with the child instead of the Applicant who is facing a trial. Page 2 of 5 The opposition also makes it clear that this application is not a medical or life threatening emergency situation or something urgent in nature which needs the Court’s attention. The Prosecution in fact proposes that since this summer camp is not a one off event but yearly, the child can participate in it next year or another year. It is finally deposed that the Applicant may not appear to stand trial if granted the opportunity to leave the jurisdiction and is indeed a flight risk. There has been a supplementary affidavit filed by the Applicant in response to the affidavit in opposition and this was filed on the 19th July 2024. This supplementary affidavit essentially reaffirms the Applicant’s assertion that he would appear to stand trial and not a flight risk and that the purpose of the trip is essentially the overall academic, sociocultural and formative development of the Applicant’s child. It is explained in response to the affidavit in opposition that the summer camp is for children between 3 to 6 years and since the child is already 6 years, there will be no opportunity for her for next year or any subsequent years if she does not attend this year. Attached to this application are the relevant passport pages of the child, evidence of the 2024 camp registration form and its rules and prospectus. There is also an airline ticket booking for both the Applicant and his child. I have read the application and its supplementary as well as the affidavit in opposition. As it is known, this is an application that requires the use of the Court’s discretion to determine same. An exercise which must be used according to the dictates of the Constitution as required under Article 296 of the 1992 Constitution. A requirement to exercise discretion candidly, fairly, not bias or being capricious, etc. In exercising my discretion, I have taken into consideration the fact that the Applicant is presumed innocent until proven or approved guilty. I have also considered that the Applicant has been accused of crimes and is facing eight (8) counts involving offences bothering on Public funds and Interest of the State. These are charges which must be considered serious. Situating the seriousness of the Page 3 of 5 trial to the prayer of the Applicant and the reason he has proferred as to why his passport must be released, it is my opinion that his reasons are not weighty enough. The participation of his 6 year old child in a two (2) weeks summer camp may be important for the further intellectual or perhaps psychological development of the child. However, whatever development including sociocultural (which the Applicant himself refers to) are all merely supplementary to her basic requirement for education which she is already receiving. The Application does not bother on the necessaries of life for a child which a parent is required to provide for a child as under Section 79 of the Criminal offences Act, Act 29 or under the Children’s Act such as basic education, need for shelter, health care or any of such requirements that needs urgent attention. In addition, as stated by counsel for the Prosecution, any other responsible adult can take the child for that summer trip instead of the Applicant who though presumed innocent still has his liberties curtailed by way of bail conditions which have been imposed on him to ensure that he comes back to stand trial. Indeed the constitution prescribes exemptions for the enjoyment of personal liberties as under Article 14, and precisely under Article 14 (6) including situations when a person is reasonably suspected of having committed or about to commit a crime. If the Applicant is the only adult taking the child for this trip and the child is an American citizen, it would mean that (at least from the information provided) the applicant will be solely responsible for the child in the USA. That raises an alarm that if any situation occurs where there will be a need for him to stay over to take care of the child in one way or the other, it will be an excuse for him not to appear before the Court for trial. I have no doubt that the best interest of the child is paramount but not when the interest to be considered is not one that is basic, but merely opulent. It is my responsibility that the Accused/Applicant appears to stand trial and that the Public interest is also protected. Page 4 of 5 No exceptional or serious grounds has been canvassed before me to warrant the grant of this application that seeks to vary the bail conditions granted. In the circumstance, the application is refused and accordingly dismissed. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: ADELAIDE KOBIRI-WOODE (PRINCIPAL PROSECUTOR) OF THE OFFICE OF THE SPECIAL PROSECUTOR FOR THE REPUBLIC/RESPONDENT DERIC OWUSU-BOATENG HOLDING THE BRIEF OF KWAME ACHEAMPONG BOATENG FOR THE ACCUSED/APPLICANT Page 5 of 5