When matters involving the courts come out, the citizens often wonder about for meaning and instances of application of some of the things said. One such legal case that has filled up the Ghanaian media space in the last couple of days is the sentencing of the former CEO of the Microfinance and Small Loans Centre (MASLOC), Sedina Christine Tamakloe-Attionu.
Madam Sedina Tamakloe was given 10 years for committing various infractions while she was the CEO of MASLOC. She was sentenced in absentia. So we take a look at what trial in absentia means and why Sedina Tamakloe was tried in absentia.
What is trial in absentia?
Trial in absentia in criminal or civil trial is a legal trial that proceeds in the absence of the defendant. This simply means the trial proceeds without the defendant present in court. There are several reasons for which a trial could proceed in absentia such as the defendant fleeing the jurisdiction where the charges were filed, intentionally refusing to appear for trial or unaware of the trial due to improper legal notice.
In countries where trial in absentia is allowed, there are conditions that must be met for trial in absentia to proceed. A trial in absentia may proceed: if the person can be said to have been aware of the trial; if a counsellor took their place at the trial; if they do not request an appeal in due time; and if they are to be offered an appeal.
In most countries, trial in absentia is very rare and only used in extreme circumstances. There are also circumstances where trial in absentia has been criticized for breach of the human rights of the defendant. For instance, the Human Rights Committee in the case of Daniel Monguya Mbenge v. Democratic Republic of the Congo in which the defendant was sentenced to death while in exile and only learned of the trial in the press, said some of the defendant’s procedural rights had been violated.
In Ghana, Article 19(3) of the 1992 constitution states that:
The trial of a person charged with a criminal offence shall take place in his presence unless—
(a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or
(b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.
These provisions and others provide for a person to be tried without their presence. However, due diligence must be followed to ensure their rights are not violated.
Background of Sedina Tamakloe’s case
Sedina Tamakloe, was appointed CEO of MASLOC from November 2013 to January 2017. Stephen Amoah, after taking over as CEO, ordered a forensic audit by the Economic and Organized Crime Office, EOCO, into the operations of MASLOC under the Mahama-led NDC government.
The report by EOCO revealed that MASLOC under the leadership of Sedina Tamakloe invested GHS500,000 with Obaatampa Microfinance in a 91-day fixed deposit with a 25% interest rate. However, before the term of the investment was due, the CEO wrote on August 28, 2014 requesting that the money be paid back.
The contract was duly terminated and the money paid but the audit could not trace the whereabout of the money. As a result, the auditors recommended that Sedina Tamakloe “should be held responsible for the refund of the amount of GHS 500,000 with interest in accordance with regulations 61(5) of the Financial Management Act, 2003 (654).”
Sedina Tamakloe together with the Director of Operations, Daniel Axim were dragged before the court in January 2019 over the findings. The two former state officials were charged with 78 counts of stealing, money laundering, causing financial loss and contravening procurement laws among others.
The writ said Sedina Tamakloe “dishonestly appropriated the sum of GH¢84,000, the property of MASLOC.” Based on it, she was charged with “stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29),” a Citi News report contained.
Why Sedina Tamakloe was tried in absentia
Based on the explanation given above about what could lead to a trial in absentia, the state proceeded to try the former CEO in her absence.
During the course of the trial, Sedina Tamakloe’s lawyer wrote to the court to release the defendant’s passport for her to seek medical assistance in the United States. The court released her passport and she was scheduled to return for the prosecution to finish their cross-examination on October 5, 2021.
Sedinam had failed to appear for trial since October 2021. Alex Mould wrote to the court in September 2021 and December 2021 saying Sedina’s treatment would last one month and six weeks, the Ghanaian Times reported.
However, she did not return for the trial to proceed, raising alarms that she has absconded. When she did not appear in court on Monday, January 2022, Principal State Attorney, Stella Ohene Appaiah requested that she should be tried in absentia.
“Her [Sedina Tamakloe] Lawyer does not know when A1 (Sedinam Tamakloe) is coming back and doesn’t know the medical condition of A1. This is a criminal trial. This accused person is just trying to avoid trial. She should be tried in absentia. The prosecution has just two hours to examine her,” she told the court.
However, lawyer for the accused told the court his client did not run away but sought permission from the court before traveling. “It is not as if A1 just got up and run away…she made a formal application to the court,” Kwesi Agbesi Dzakpasu told the court.
In October 2022, the court ordered the two sureties who stood to enforce the GHS5 million bail condition set for her by the Accra High Court. Former Chief Executive Officer (CEO) of the National Petroleum Commission Corporation (GNPC), Alex Mould, and Gavivina Tamakloe stood as sureties.
The court ordered the sureties to produce her by December 22, 2022. Justice Asare-Botwe said failure to produce her by the set date will result in the forfeiture of the bond. In January 2023, the court ordered the forfeiture of the bond which meant the sureties are to pay the GHS5 million bond to the state. Justice Asare-Botwe said the 16 months given to the accused to return for trial was enough so her failure meant she truly absconded.
“I have drawn the conclusion that A1 (Sedina) has absconded, as she has not showed up at the time she was supposed to. But the authorities have also made it clear that if this happens you should give the sureties time to produce the accused person,” Justice Asare-Botwe said in Court.
She added, “For this reason, I have given the sureties on or before 22 December, 2022, to produce the accused person. A failure to produce her will result in a forfeiture of the bond.”
Justice Asare-Botwe adjourned proceedings to December 22, 2022 saying she hopes that “she[Sedina Tamakloe] will be back by then. If she doesn’t come, then I will consider the application for trial in absentia,” the Chronicle reported at the time.
Court rules to try Defendant in absentia
Fast forward, the court after giving enough time for Sedina Tamakloe to return to the country without success proceeded to try her in absentia.
Justice Asare-Botwe in giving her ruling relied on Article 19 (3) (a) which states a person the trial of a person shall take place in his presence unless – “he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial.”
She added that “A1 [Sedina Tamakloe] is well aware that the case is pending against her as she had participated in the trial for a year and half before she sought permission, not to go for treatment but to go for a checkup.”
The court thus ordered that a copy of the notice for the continuation of the trial in absentia be served to her lawyer, Agbesi Dzakpasu, and also be posted to her last known place of abode in Accra. Further, the court ordered that a copy of the notice be posted on the notice board of the court and a single publication in a national newspaper which shall last for 21 days. Finally, the court adjourned the case to March 28, 2023.
After 5 years since the case first appeared before the court, the Court of Appeal Judge sitting an additional High Court Judge, Justice Afia Serwah Asare-Botwe delivered her verdict on Monday, April 16, 2024. The decision to deliver the ruling follows the inability of the second defendant, Daniel Axim to convince his witnesses to testify in court and was forced to close his defense in February 2024.
Following her conviction, the Ghanaian government will work with its international partners to extradite Sedina Christine Attionu Tamakloe so she can serve her sentence in Ghana. Her extradition may face some challenges as alluded by private legal practitioner Martin Kpebu who argued that the nature of Ghana’s prisons may be a point that can be used to refuse extradition.