The Director of Strategy, Research, and Communications at the Office of the Special Prosecutor (OSP), Sammy Darko, has explained why former Finance Minister Ken Ofori-Atta cannot be tried in absentia.
Sammy Darko explained that the constitutional threshold for Ken Ofori-Atta to be tried in absentia has not been met because a formal service of charges has not been completed.
According to Sammy Darko, the legal process governing trial in absentia is strictly defined and begins only after an accused person has been properly charged and duly served.
He disclosed that current debate around trying Ofori-Atta in his absence is premature.
Sammy Darko stated, “Trial in absentia is not triggered by the mere filing of charges,” Darko said. “It is triggered when a person who has been properly charged and properly notified of the proceedings refuses to come before the court.”
He disclosed that under Article 19(3) of the Constitution, a person can only be tried in absentia if they have first been “duly notified” of the trial.
“It does not mean notification through social media. It does not mean a phone call. It does not mean merely informing the person’s lawyers,” he said.
Sammy Darko disclosed that although charges have been filed and court approval obtained to serve the documents in the United States, proof of Ken Ofori-Atta being served has not been returned to Ghana through official channels.
“At this stage, what remains is proof that the documents have been served,” he said.
He added that once proof of service is filed, the court must still give the accused, Ken Ofori-Atta, a reasonable opportunity to appear before any further steps are taken.
Sammy Darko also cited that the pending Supreme Court case reviewing aspects of the OSP’s prosecutorial powers has also affected their proceedings.
Meanwhile, the OSP has broken its silence over reports that Ghana’s former Finance Minister, Ken Ofori-Atta, has secured a legal victory in the United States, with an immigration court approving his application to adjust his immigration status.
According to the OSP, they are not involved in immigration hearings in the United States involving Mr Ofori-Atta, adding that their involvement is in respect of extradition proceedings through the Attorney General.
They further disclosed that the criminal charges against Mr Ofori-Atta would be determined by the courts in Ghana, adding that a US residency does not clear Ofori-Atta of the extradition process.
In a post on X, the OSP wrote, “The Office of the Special Prosecutor (OSP) has taken note of media reports and a publication attributed to a law firm in Ghana that Mr Kenneth Nana Yaw Ofori-Atta has been granted permanent residency in the United States, resulting from an immigration court finding that it did not find the criminal charges filed by the OSP in Ghana against Mr. Ofori-Atta credible.
The OSP states that it is not involved in immigration hearings in the United States involving Mr Ofori-Atta. The OSP’s involvement is in respect of extradition proceedings against Mr Ofori-Atta through the Attorney-General as the central authority.
The OSP states that the extradition packet is not before the immigration court, and the credibility or otherwise of the criminal charges against Mr Ofori-Atta would be determined by the courts in Ghana, who have jurisdiction to determine his guilt or innocence.
Further, Mr Ofori-Atta still remains a citizen of Ghana, and he is still amenable to be extradited to Ghana if so decided by the extradition court in the United States.
The development follows Ken Ofori-Atta, who has reportedly secured a legal victory in the United States, with an immigration court approving his application to adjust his immigration status.
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