Prof. Stephen Kwaku Asare has weighed in on the discussion following the acquittal of the defendants in the ambulance case, pointing out that the contract at the center of the controversy is between the Ministry of Health (MoH) and Blue Seas.
Prof. Asare clarified that the Ministry of Finance (MoF) only plays a facilitatory role in the contract, authorizing the Letter of Credit (LoC) without assuming any contractual obligations or becoming a party to the agreement.
He observed that the Ministry of Finance’s involvement does not extend to guaranteeing the quality of goods delivered or purchased, as its responsibility is confined to authorizing the payment mechanism.
“The court concludes that no reasonable court, focused on justice, would have found that the defendants had a case to answer. If the delivered goods are nonconforming, it is the responsibility of the MoH to exercise its contractual remedies”.
“Failure to do so, potentially causing loss to the state, places the criminal burden solely on the MoH, not on the MoF for authorizing the LoC”.
Prof. Stephen Kwaku Asare
Additionally, Prof. Asare asserted that the Ministry of Health (MoH) has a contractual obligation to minimize losses and take steps to mitigate any damages that may arise.
As such, the Legal Expert observed that this distinction becomes particularly significant when contractual disputes spill over into criminal proceedings, and questions of financial loss and liability come to the forefront.
Prof. Asare further pointed out that if a Deputy Minister signs a Letter of Credit (LoC) on behalf of the Minister, and the Minister does not object to this delegation of power, then the Minister is deemed to have tacitly authorized the Deputy Minister’s action.
As such, he contended that the Office of the Attorney General’s assertion that the Deputy Minister had no authority was unfounded and unreasonable, as the Minister’s failure to object constituted tacit approval of the Deputy’s actions.
Shift Of Burden To Deputy Minister Unfair
Moreover, Prof. Stephen Kwaku Asare emphasized that if the prosecution alleges that the Deputy Minister lacked authority, they cannot then transfer the onus to the Deputy to demonstrate his authority, as this would be an unjust reversal of the burden of proof.
He strongly emphasized that the notion that the burden of proof can be shifted to the Deputy Minister is fundamentally flawed, reiterating that it is a sacrosanct principle of law that the prosecution must always bear the burden of proving its allegations.
“In summary, the court asserts that Dr. Adam cannot be held accountable for issuing a LoC on behalf of Kwaku Agyeman to import medical equipment approved by the cabinet. This is true even if there are questions about the quality of equipment delivered by the seller”.
Prof. Stephen Kwaku Asare
Prof. Asare also emphasized that Richard Jakpa, in his capacity as agent for Blue Seas, does not possess the legal capacity to commit the state to any agreements or obligations, and thus cannot create any binding obligations on the state’s behalf.
He noted that Mr. Jakpa’s payment was made by his principal, Blue Seas, in compliance with a court order, emphasizing that the payment was a consequence of the legal ruling.
Accordingly, Prof. Asare found it baffling that Mr. Jakpa, the agent, is facing charges of intentionally causing financial loss to the state, particularly since the grounds for his defense have shifted from the initial allegations.
He pointed out that this discrepancy undermines the credibility and reliability of the charges, prompting questions about the underlying basis and rationale for the prosecution’s actions.
In light of the defendants’ acquittal, some of their sympathizers contend that the Attorney General’s credibility is severely compromised due to the controversies surrounding the case, and therefore, he should be barred from addressing the Ghana Bar Association in the future.
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