One of the most central issues in the prosecution of the Opposition Leader in the Ghanaian Parliament is whether he had “authorisation”, presumably from his Minister, when he was Deputy Minister at the Finance Ministry, to request the Bank of Ghana to set up letters of credit (LCs) in the botched ambulance deal.

The dissenting opinion in a recent Appeal Court judgment that acquitted the Opposition Leader explores one of the most interesting elements of the case: who had the burden to prove if the Opposition Leader had the authorisation? The prosecuting Attorney General or the Opposition Leader?

Normally, when charged with a crime, you don’t have to prove your innocence. It is up to the prosecution to prove your guilt. BUT within the trial, this burden can SHIFT. In Ghanaian law, one context in which such shifting can occur is rather philosophical. Our Judges have ruled over time that “one cannot prove a negative”. So if a person makes a “negative assertion” (or “averment” as our jargon-loving friends in law like to call it) about something they are in the best position to know, then even if they are the accused, it is their burden to prove that claim.

The High Court Judge who ruled that the Opposition Leader has a case to answer and should thus “open his defence” within a full trial insisted that it was up to the Opposition Leader to prove that he had authorisation to request the LCs and that the prosecution wasn’t under any obligation to call the Finance Minister to disprove the accused’s bare assertions. The former Judicial Secretary who wrote the dissenting opinion in the Court of Appeal’s acquittal judgment agrees.

Luckily for all of us laypersons, philosophy is not law. We can therefore respectfully look in the eyes of the learned High Court Judge, Appeal Court Judge and Attorney General and argue back that they are simply wrong.

Who was making a “negative assertion” here? The one saying he HAD authorisation and claimed that Deputy Ministers sign letters on behalf of their bosses all the time, or the one saying that the former Deputy Minister/current Minority Leader in Parliament had NO authorisation? The same person saying that he copied the Finance Minister who never protested the action or the one saying that the Finance Minister never approved the transaction? Who is making a “negative” or “positive” statement here?

It seems very clear to me that philosophically it is the one claiming the absence of authorisation that is making the negative assertion. It is also very clear that the issue of whether or not there was authorisation is not one that can be said to lie in the “unique knowledge” of the accused. It is a matter of administrative record that the government is best positioned to dispose by probative evidence.

The Attorney General threatens to appeal to the Supreme Court. We have always said that he is on a wild goose chase and misusing the courts for political motives. The contention over who should prove negative versus positive facts also shows that further appeals could end up wasting the people’s time and resources in pursuit of pointless philosophical exercises.

The ones who have definitely caused financial loss to the state are the officials, some of whom are still in office, that have refused, and continue to refuse, to work with the contractors to provision the Mercedes 311 vans to become ambulances in the manner of global best practice. Even though the ambulance contract and subsequent agreements provide all the mechanisms needed to remedy any defects identified during inspection.