By Daniel Bampoe
The legal battle involving former National Security Bureau Director-General Kwabena Adu-Boahene and his wife, Angela Adjei-Boateng, has entered a decisive phase after lead defence counsel Samuel Atta Akyea filed a comprehensive submission of no case to answer, arguing that the prosecution has failed to establish a prima facie case requiring the accused persons to open their defence.
The defence filed the submission before the court ahead of the applicable deadline, and the Attorney-General has been duly served with the defence’s arguments.
The defence’s application comes shortly after the Republic closed its case following more than 18 months of proceedings and four prosecution witnesses, including Economic and Organised Crime Office (EOCO) investigator Frank Marshall Cromwell, who was subjected to extensive cross-examination.
At the heart of the submission is the defence’s contention that, having presented and closed its evidence, the prosecution has not placed sufficient material before the court to establish the essential elements of the charges against the accused persons.
Rather than opening their defence immediately, the accused persons are first to determinefirst determine whether the Republic has crossed the evidential threshold required to compel them to answer the allegations.
The defence identifies what it describes as significant gaps, inconsistencies and unanswered questions in the prosecution’s case and argues that several witnesses with direct knowledge of critical aspects of the disputed transactions were not called.
The ‘State BNC’ Account: Who Actually Owned It?
One of the first questions raised by the defence concerns the account which the prosecution has referred to as the “State BNC” account.
According to the defence, the account was identified in the bank’s records as the “Coordinator’s Account – NSC” and was used for special operations.
The defence argues that the characterization of the account is critical because the prosecution’s case depends, in part, on its description of the account and the transactions conducted through it.
If the account was in fact connected to National Security special operations, the defence contends that the prosecution must establish its legal and operational character before concluding the movement of the funds.
Who Signed the GH¢49.1 Million Cheques?
The defence also places considerable emphasis on the three cheques totalling approximately GH¢49.1 million.
According to the submission, the cheques were signed by the then National Security Coordinator.
The defence argues that the person best positioned to explain why the cheques were issued, what the money was intended for, and where it was supposed to go was therefore the National Security Coordinator.
However, the defence says that witness was not called to testify.
That omission, according to the defence, leaves a central part of the prosecution’s narrative without direct testimony from the official who allegedly authorised the movement of the funds.
What Was the GH¢49.1 Million Actually For?
Another major issue identified by the defence is the alleged purpose of the GH¢49.1 million.
The defence contends that none of the prosecution witnesses established the specific purpose for which the money was released.
It further points to the earlier Court of Appeal order requiring the Republic to provide information concerning the source and purpose of the disputed funds.
According to the defence, the prosecution failed to provide the information in a manner that resolves the question of what the entire GH¢49.1 million was actually intended to finance.
The defence argues that this is not a peripheral issue but a fundamental component of the prosecution’s case because the allegation of diversion depends on establishing what the money was originally meant for.
If It Was Diverted, Where Was It Supposed to Go?
The defence’s next question concerns the alleged diversion itself.
According to the submission, no prosecution witness identified the lawful destination from which the GH¢49.1 million was allegedly diverted.
The defence argues that an allegation of diversion logically requires proof of an intended destination or account from which the money was diverted.
Its position is that the prosecution has not identified such an account.
The defence therefore challenges the evidential foundation of the allegation, asking how the court can determine that money was diverted if the prosecution cannot establish where it was originally supposed to be paid.
‘Where Is the Supplier?’
The defence also challenges the prosecution’s handling of ISC Holdings, identified in the case as the alleged supplier of the cyber-defence system.
The defence argues that the prosecution did not call or obtain direct evidence from the supplier to establish allegations that the relevant invoice was false or that the cyber-defence system was never delivered.
That issue has featured prominently throughout the proceedings, with the defence previously relying on correspondence attributed to ISC Holdings concerning delivery of the system.
The defence’s latest submission argues that direct evidence from the alleged supplier would have been critical to resolving the dispute over whether the equipment was actually procured and delivered.
Where Is the Money Trail?
Another major area of attack concerns the prosecution’s financial reconstruction.
The defence challenges the tracing exercise relied upon by the Republic, including transactions described or classified as “dissipation.”
It disputes the alleged connection between the GH¢49.1 million and various properties, vehicles, investments and businesses that prosecutors have relied upon in presenting their case.
The defence’s argument is that identifying transactions involving the accused persons is not necessarily sufficient. The prosecution must establish a direct evidential connection between those transactions and the specific GH¢49.1 million that forms the subject matter of the charges.
The 488 Missing Pages
The defence has also raised the issue of 488 missing pages of banking records.
According to the submission, the missing material raises questions about whether the financial reconstruction presented by the prosecution is complete.
The defence argues that where a prosecution case depends heavily on banking transactions and the movement of funds, the completeness of the underlying banking records becomes important in determining whether the court has the full picture.
The missing pages, it says, therefore create another evidential gap that must be considered when assessing whether a prima facie case has been established.
Where Are the Houses, Cars and Businesses?
The defence has also directly challenged the alleged connection between the GH¢49.1 million and the properties, vehicles, investments and businesses relied upon by the prosecution.
According to the submtssion, PW4 acknowledged that ownership documentation for some of the properties was not before the court.
The investigator also reportedly indicated that investigations were still ongoing and could not establish a direct connection between the GH¢49.1 million and the alleged houses, frozen vehicles, investments and businesses.
The defence argues that those admissions are significant because the prosecution has alleged that the disputed funds were used to acquire assets.
If the state cannot demonstrate through documentary and other admissible evidence that the assets were purchased with the GH¢49.1 million, the defence contends that the alleged money trail remains incomplete.
Where Are the Material Witnesses?
Perhaps one of the most substantial arguments advanced in the no-case submission concerns witnesses who, according to the defence, possessed first-hand knowledge of the disputed transactions and National Security arrangements.
The defence says the immediate past National Security Coordinator, the current National Security Coordinator, and the current and former National Security Ministers were not called to explain critical aspects of the prosecution’s case.
It also points to the prosecution’s reliance on bank documents without calling bank officials to testify to the records.
The defence consequently argues that substantial portions of the prosecution’s case were presented through documents and testimony from witnesses who did not necessarily have direct knowledge of the underlying decisions and transactions.
It describes this as a weakness in the evidential chain and argues that the court should be cautious about relying on hearsay where direct witnesses could have been called.
The Central Question
The defence’s submission ultimately brings the entire case down to one central question:
Has the prosecution established, through sufficient evidence, the source, purpose, intended destination, alleged diversion and resulting loss of the GH¢49.1 million?
According to the defence, the answer is no.
It argues that the Republic has closed its case without sufficiently establishing the fundamental facts necessary to support the charges and therefore should not be permitted to compel the accused persons to enter a defence.
The submission of no case to answer is therefore not itself a final determination of the criminal allegations. It is an application asking the court to assess whether the prosecution’s evidence, taken at its highest, is sufficient to require the accused persons to proceed with a defence.
What Happens Next?
The Attorney-General has 14 days to respond to the defence’s submission.
Following the prosecution’s response, the defence will have seven days to file a reply.
The court will then consider the submissions and determine whether the Republic has established a sufficient case against Adu-Boahene and his co-accused.
If the court finds that the prosecution has failed to establish a prima facie case, the accused persons could be discharged without being required to open their defence.
If, on the other hand, the court determines that sufficient evidence exists to require an answer, the trial will proceed to the defence stage.
After more than 18 months of prosecution evidence, the case has therefore entered a crucial legal crossroads.
