Former Deputy Executive Director of the National Service Authority (NSA), Gifty Oware Mensah, has filed an application challenging a High Court order directing her to disclose the names and addresses of her witnesses at the Case Management Conference (CMC) stage of her ongoing criminal trial.
The application was filed through her defence lawyer, Gary Nimako Marfo, before a High Court in Accra presided over by Justice Audrey Kocuvie-Tay.
The defence has urged the court to refer the matter to the Supreme Court for constitutional interpretation, arguing that the disclosure requirement violates the presumption of innocence enshrined under the 1992 Constitution.
Counsel Marfo contended that requiring an accused person to provide witness details at the CMC stage imposes an undue burden on the defence and contradicts Article 19(2)(c), which guarantees the presumption of innocence, and Article 19(10), which protects the accused from being compelled to give evidence at trial.
He emphasized that the burden of proof in criminal cases rests solely on the prosecution, referencing Sections 11 and 15 of the Evidence Act, 1975 (NRCD 323).
The defence challenged Part 2(3)(a) of the Practice Direction on Disclosure and Case Management Conference in Criminal Proceedings (2018), which mandates that an accused “shall” disclose the names and addresses of all witnesses.
Using Rule 42 of the Interpretation Act, 2009 (Act 792), counsel argued that the word “shall” is mandatory and therefore the requirement is inconsistent with constitutional protections.
They further asserted that the attempt to soften this requirement with the phrase “without prejudice to the constitutional presumption of innocence” is not supported by the Constitution itself.
Citing precedent including State v Sowah & Essel (1961 GLR 743–747), the defence urged the court to stay proceedings and seek interpretation from the Supreme Court.
Additionally, they challenged Part 5(f) of the practice direction, which encourages day-to-day hearings or short adjournments, arguing that it violates Article 19(2)(e) by limiting adequate time and facilities for the accused to prepare a defence.
Relevant authorities cited included Republic v Baffoe-Bonnie & Others (2017–2020 SCGLR 342) and Ex parte Zenator Rawlings.
Opposing the application, the Director of Public Prosecutions (DPP), Yvonne Atakora Obuobisa, argued that the defence had not properly invoked the court’s jurisdiction for a Supreme Court referral under Article 130.
She contended that Part 2(3)(a) of the practice direction is not inconsistent with the Constitution and that the disclosure at the CMC stage does not compel the accused to give evidence or prejudice her right to remain silent.
The DPP explained that the disclosure requirement is intended to assist the accused by allowing the court to issue witness summonses if necessary, once the prosecution closes its case.
She further noted that, when read together with Part 5 of the practice direction, adequate time and facilities are ensured for the accused to prepare a defence.
On the issue of expeditious trials, the DPP submitted that day-to-day hearings help reduce prolonged proceedings, easing the burden of criminal cases on both the court and the accused, while remaining consistent with constitutional safeguards.
She cited authorities including Aduamoah II v Twum II (1999) 2 GLR 409, Ex parte James G. Quayson (SC, 2022), and Ex parte Akorsah (1980 GLR 592) to support her position.
The matter is ongoing, with the court expected to rule on whether to refer the constitutional questions to the Supreme Court.
