Re: Mabey & Johnson - NDC’s porous defence.

Upon reading the article published on 01/10/09 by www.myjoyonline.com and authored by Ato Kwamena Dadzie under the caption, “Ato Kwamena Dadzie: Mabey & Johnson - NDC’s porous defence”, I have found it imperative to issue a rejoinder on the subject matter so as to correct the fallacious assertions and to put issues in the proper perspective.

Considering the background of the author and his nebulous appreciation of issues (independent of the facts), unsavoury comments and his relentless hobby of destroying the hard earned reputation of noble statesmen, I am not surprised that he decided to spin and put a narrowed interpretation to the subject matter. In Ato’s release with respect to the NDC’S statement in response to allegations that some of its most senior members took bribes from UK construction firm, Mabey and Johnson, he described the statement as “very insulting – to say the least”.

In his article, Ato quoted from the NDC press statement which read that, “For the record, the NDC wishes to categorically state that it has never received funds from Mabey and Johnson Company, records available to the party do not reveal receipts of any such funds from the said company or its agents”. In his attempt to make a futile sense out of the NDC statement, he trivialised the issues being raised and asked a rhetorical question that, “When did politicians start offering receipts for bribes they’ve taken? Who does that? No one takes receipts for bribes.”

Upon reading through his article, I am left with no other option than to conclude that Ato is either being mischievous or just ignorant. As a matter of fact, the NDC as an entity is an interested party in the suit involving M&J since their corporate integrity had been brought to question and the outcome of the case suggests that its agents received bribe for and on behalf of the NDC. In the eyes of the law, Bribery is giving, receiving, offering, or soliciting anything of value in order to influence a person in the imperfect performance of their duties.

Bribery if proven, amounts to a breach of fiduciary duty (which occurs when a person who is under an obligation to exercise his or her discretion and expertise in the best interest of another party betrays that trust and confidence by doing something that is not in the best interest of that party) and can be considered as a felony crime. This therefore means that the persons so found to have been involved in bribery can be sued for damages in a civil court.

It is also significant to note that if there is a giver, then there must be a receiver and in any legal procedure, the burden of proof lies on the one who is alleging bribery (he who alleges must proof). The onus also lies on the purported recipient(s) to prove that, the evidence being tendered in as the evidence of bribe cannot pass the litmus test of a bribe. This therefore means that in the case herein discussed, M&J had to prove beyond every reasonable doubt that whichever transactions they had with the individuals so mentioned, constitutes a bribe.

Ato, in his article asked that “when did politicians start offering receipts for bribes they’ve taken? Who does that? No one takes receipts for bribes.” To rationalize his averment that no one takes receipts for bribes, he implicitly concluded that there was indeed a clear case of bribery for which the NDC was trying desperately to ‘whitewash’ the names and ‘questionable credibility’ of the NDC and its’ mentioned agents. This position is unsustainable and flawed on grounds that if truly, no one takes receipts for a bribe and that there couldn’t have been a receipt for the bribe, then the question is, how did the Southwark Crown Court prove beyond every reasonable doubt that the supposed transactions (if any) could amount to bribery? Is Ato aware that if indeed, the purported bribery transaction was disbursed through cheques, then the cheque/ stub/ payment voucher, herein is a source document like any other receipt in a financial statement and for that matter can be used as evidence and ascertained in a court of competent jurisdiction?

It is also instructive to note that, a thorough study of the prosecution statement shows that, it was the view of the UK-SFO that the purported commission paid by M&J (refer to paragraph 108 of the prosecution statement as displayed on the official website (www.sfo.gov.uk) of the Prosecutors in the matter) to the Government of Ghana was rather a bribe and not a commission.

The Southwark Crown Court also in the true spirit of Principle of Natural Justice had an unconditional duty to hear from all interested parties and pass a verdict based on the merit of the case. The court in doing so needed to create a distinction between a gift/ donation and a bribe and in furtherance to that establish in unambiguous terms that the intention for the transaction constitutes bribery or a donation.

In the substantive matter before us, M&J alleged that the disbursement of the bribe was through the issuance of cheques. If this assertion is true, then in the accounting books of both M&J, the NDC and all those mentioned, the cheque (with counterfoils) is the source document ( a proof of transaction), hence making the allegation verifiable. It is also instructive to note that, in accounting, there is golden rule for making entries in financial books which states that, you debit the books of the receiver and credit the giver. This therefore means that if the NDC categorically states in their release that the records available to the party do not reveal receipts of funds from the M&J or its agents, then a challenge is thrown to anyone who is making a case of bribery against them. And if the disbursement was through cheque(s), then it should be captured in the credit side of their books and corroborated from the banks mentioned. This is the more reason why all interested parties were supposed to have been invited to state their defence, witnesses, and ascertained the veracity or otherwise of the bribery allegation.

The action of the Southwark Crown Court to pass judgement on the matter of bribery without the participation of all interested parties (NDC, it’s agents, etc.), especially when their defence or rebuttal was not heard, ascertained and authenticated or otherwise, have not been proven in the court of competent jurisdiction, then this is tantamount to an act of arbitrariness which militates against the PRINCIPLE OF NATURAL JUSTICE and its component of “Audi alter am partem” (opportunity to be represented directly or indirectly through a counsel in a case in which you are an interested party). This is a complete travesty of justice and a sad commentary on the Justice system.

Anyone with effective analytical capabilities can logically conclude that the diction and tone of the prosecution statement suggests that the prosecution was too emotional and malicious. Isn’t it also strange to note that those officials will receive bribes through cheques when they knew that could easily be verified and validated.

What on earth prevented the Southwark Crown Court from inviting our purported corrupt Government officials to act as witnesses or defendants? As it is now, it is the word of M&J and the UK-SFO against the named officials. He who seeks equity must come with clean hands and may we not be bamboozled into the callous scheme of our colonial masters who have from time immemorial shown disrespect to our political leaders. If they were not up to mischief, why then did they hide the identity of their own and publicly crucified our leaders? Perhaps ‘Director A; Director B; Director C; Director D; and Director E’ are minors and that is why their identity had been concealed. The factual inaccuracies in the prosecution statement (which ultimately influenced judgement) to a very large extent raises questions about due diligence.

The sages have said in Latin that, “Natura non facit , nec lex supervacuum”- meaning, “nature makes no vacuum and the law, nothing purposeless”. By this principle, every legal process must clear the mirky waters of every controversy beyond every reasonable doubt and that all the principles and procedures of a justice system must be upheld. To borrow the words of Justice Kpegah during the case of Agbevor vs A-G in the year 2000 (SCGLR 403), in which he opined that “Justice must be done even if the heavens fall...”, I must state that this travesty of justice must be resisted and contested.

“Justice should not only be done but manifestly and undoubtedly seen to be done”, these were the words of Lord Hewart (C.J) in the Republic vs. Susse Justices (1924). And by these words, may we be cautioned by precedence and let posterity guide us in our pronouncements and actions as we seek fair and true justice.

In as much as we have the right to expression, Ato must come to the realisation that, his right to expression must not be libellous and that in a civilised society such as ours we can only consolidate our democracy when we stick to civility, professional ethics, dignity, social values, etc.

Justice Oliver Wendell Holmes once remarked that, “My freedom to swing my arm stops where the other man’s nose begins”. Because humans are social beings, our freedom of action must have limits if the freedom of all is to be preserved. Let us not use the advantaged platforms at our disposal in the media to cast insinuation, defame, malign, fuel conflict, propagate vile propaganda, etc. Thank you.

Justice Kutsienyo [email protected]