Former Deputy Executive Director of the National Service Authority (NSA), Gift Oware Mensah, has challenged an order by a High Court in Accra directing her to disclose the names and addresses of her witnesses at the Case Management Conference (CMC) stage of her criminal trial.
Through her defence counsel, Gary Nimako Marfo, the court presided over by Her Ladyship Justice Audrey Kocuvie-Tay was urged to refer the matter to the Supreme Court for constitutional interpretation, arguing that the disclosure requirement violates the presumption of innocence guaranteed under the 1992 Constitution.
Counsel contended that compelling an accused person at the CMC stage to disclose witnesses and their addresses imposes a burden on the defence and is inconsistent with Article 19(2)(c), which guarantees the presumption of innocence, and Article 19(10), which protects an accused from being compelled to give evidence at trial.
He further argued that the burden of proof in criminal proceedings lies solely on the prosecution, citing Sections 11 and 15 of the Evidence Act, 1975 (NRCD 323).
According to the defence, Part 2(3)(a) of the Practice Direction on Disclosure and Case Management Conference in Criminal Proceedings, 2018, which provides that an accused person “shall” disclose the names and addresses of all witnesses, is mandatory and therefore unconstitutional.
Counsel relied on Rule 42 of the Interpretation Act, 2009 (Act 792) to argue that the word “shall” is mandatory, not permissive.
He maintained that although the practice direction attempts to cushion the disclosure requirement with the phrase “without prejudice to the constitutional presumption of innocence,” the Constitution itself does not provide for any such qualification, rendering the practice direction inconsistent with the Constitution.
He cited State v Sowah & Essel (1961) GLR 743–747 and invoked Articles 130(1) and 130(2) of the Constitution, urging the trial court to stay proceedings and refer the matter to the Supreme Court for interpretation.
The defence also challenged Part 5(f) of the practice direction, which encourages day-to-day hearings or short adjournments, arguing that it breaches Article 19(2)(e) of the Constitution by denying an accused adequate time and facilities to prepare a defence.
Reference was made to Republic v Baffoe-Bonnie and Others (2017–2020) SCGLR 342, as well as Republic v High Court (General Jurisdiction), Accra; Ex parte Zenator Rawlings (Ashirtey & NDC, Interested Parties).
Opposing the application, the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, argued that the defence had failed to properly invoke the court’s jurisdiction for a referral under Article 130.
She submitted that Part 2(3)(a) of the practice direction is not inconsistent with Articles 19(2)(c), 19(2)(e), or 19(10) of the Constitution.
The DPP explained that the disclosure requirement at the CMC stage does not compel an accused to lead evidence or prejudice the right to remain silent.
Rather, it is intended to assist the accused by enabling the court to issue witness summonses where necessary, should the accused later be called upon to open a defence after the prosecution closes its case.
She stressed that the practice direction must be read holistically, particularly together with Part 5, which ensures that adequate time and facilities are granted to the accused to prepare a defence.
On the issue of expeditious trials, the DPP argued that day-to-day hearings benefit accused persons by reducing prolonged trials and easing the burden of criminal proceedings, noting that timely justice is consistent with constitutional safeguards.
She further relied on authorities including Aduamoah II v Twum II (1999) 2 GLR 409, Republic v Court of Appeal, Cape Coast; Ex parte James G. Quayson (SC, July 27, 2022), and Republic v Regional Tribunal; Ex parte Akorsah (1980) GLR 592, to submit that no real or genuine issue of con
