This was after the Court refused the application by Mr Tony Lithur, counsel for Ofosu Ampofo, to go to the Supreme Court to seek interpretation to the right to privacy in the criminal matter.
Mr Lithur told the Court, presided over by Mr Samuel K. Asiedu, a Court of Appeal Judge, sitting as an additional High Court Judge, that it would be in breach of the accused person’s right to privacy as the recording was done without his consent as enshrined in Article 18 (2) of the 1992 Constitution – the prescribed circumstances under, which the right to privacy could be interfered.
“To the extent that the tape recording was procured in breach of his constitutional rights, it cannot be allowed in evidence to implicate him in crime,” Mr Lithur added.
Ofosu Ampofo, who is also the National Chairman of the National Democratic Congress (NDC), is facing additional charge of inciting communicators of the Party against the Chairpersons of the Electoral Commission and the National Peace Council.
Mr Lithur had prayed the Court to refer the matter to the Supreme Court for interpretation to determine what was clearly under Article 130 (2), arguing that, “this is a classic case where the Court will exclude evidence on the basis of substantial prejudice.”
He explained that the Constitution also allowed his client to join any political party and to participate in their activities, saying that right was infringed upon when his engagement with his political party platform was unlawfully recorded on assumption that he had been identified as a speaker at the function.
Quoting the ruling by the Apex Court on a civil case between Raphael Cubagee and Michael Yeboah Asare, Mr Lithur said the facts in that case was whether or not the conversation recorded by one of the parties with the phone was admissible, and said in the Ofosu Ampofo instance, without the tape, there was no issue.
Mr Lithur said allowing the tape to be tendered in evidence would put Ghanaians at risk of violating one another’s constitutional rights deliberately under the guise of security; hence it should be referred to the Supreme Court for interpretation.
Dr Aziz Bamba, lawyer for Boahen (a communicator of the NDC), associated with the objections raised by Mr Lithur and added that even if it was a security agent who recorded it, the person needed a warrant from a superior court to obtain the recording, and that prosecution had not demonstrated that the recording was done in accordance with the law.
He said since the prosecution witness/investigator was not the one who recorded the interaction he could not answer questions pertaining to the tape.
However, the Court refused the application with reasons that Section 18 of the 1992 Constitution provided enough legal basis to admit the recording, which was the only evidence, adding, the Supreme Court had already interpreted that section of the Constitution, which must be abided by all lower courts.
Mrs Yvonne Atakorah Obuobisa, the Director of Public Prosecution, also in a rebuttal, said the audio recording was relevant to the conduct of the case as the information on it was critical to prove the utterances made by the accused persons.
She said it would also assist the court in determining the case and that the charges levelled against them were on the recording and could not be excluded.
Its admission, Mrs Obuobisa said, would not infringe on the constitutional rights of the accused, noting that Article 18 (2) guaranteed protection of individuals’ privacy, which had exceptions that allowed the rights to be interfered with such as for public safety, for the prevention of disorder/crime or protection of rights and freedoms of others.
She said: “…in this instance, crime had to be prevented by protecting the Chairpersons of EC and the Peace Council to conduct their work in a safe environment.”
When the case was called, Boahen was absent. His counsel told the court that he was ill.
The case has been adjourned to November, 30.