The Member of Parliament (MP) for Bawku Central, Mahama Ayariga, has failed in his legal attempt to stop the Special Prosecutor, Mr Martin Alamisi Amidu, from prosecuting him over allegations of using public office for private gains.
The Accra High Court, presided over by Justice Afia Serwaa Asare-Botwe, yesterday dismissed Mr Ayariga’s application challenging the capacity of Mr Amidu to be the Special Prosecutor.
The application was in relation to a criminal case against the MP and six others, including the Municipal Chief Executive (MCE) for Bawku, Hajia Hawa Ninchema, for allegedly engaging in procurement breaches over the purchase of an ambulance.
It was the case of the legislator that Mr Amidu was above 65 years and, therefore, per Article 199 (1) and (4) of the 1992 Constitution, he was not ‘qualified’ to hold the office of Special Prosecutor, which is a public office.
Mr Ayariga, therefore, wanted the court to strike out the charge sheet which gave rise to the criminal proceedings against him on the basis that the charge sheet was “defective” because it had the signature of Mr Amidu, who “had no capacity in law” to append his signature.
However, in a ruling , the court was of the view that making a determination on the capacity of Mr Amidu to hold office would amount to usurping the powers of the Supreme Court, which has the sole jurisdiction to make such a determination.
“This court will not overreach its powers. Mr Martin Amidu is the Special Prosecutor until the Supreme Court holds otherwise,” Justice Asare-Botwe ruled.
Supreme Court’s jurisdiction
The High Court declined to rule on Mr Amidu’s capacity to hold office because such an issue is a constitutional matter which falls under the jurisdiction of the Supreme Court.
Already, there is a constitutional case pending before the apex court on whether or not Mr Amidu’s nomination by the President as the Special Prosecutor and his subsequent approval by Parliament were constitutional.
A former Deputy Attorney-General (A-G), Dr Dominic Ayine, went to the highest court of the land with a case that because Mr Amidu was 66 when he was nominated, he was ineligible to be the Special Prosecutor.
It is his contention that by a true and proper interpretation of articles 190 (1) (d), 199 (1), 199 (4) and 295 of the 1992 Constitution, the retiring age of all holders of public offices created pursuant to Article 190 (1) (d) was 60 years and not beyond 65 years.
The Supreme Court is yet to make a determination on that case.
Charges struck out
Meanwhile, the High Court, in a ruling on another application, struck out three charges levelled against Ayariga and another charge against a businessman who is alleged to have helped the MP to evade taxes.
The charges struck out against the MP were fraudulent evasion of customs duties and taxes, dealing in foreign exchange without licence and transfer of foreign exchange from Ghana through an unauthorised dealer.
With regard to the businessman, Kendrick Akwasi Marfo, the court struck out the charge of fraudulent evasion of customs duties and taxes.
According to the court, the particulars of those offences did not relate to corruption or corruption-related offences and were, therefore, not under the remit of the Office of the Special Prosecutor (OSP).
With the court striking out the four charges, the MP is only facing a charge of using public office for private benefit in the case of tax evasion, while the businessman has been discharged.
The MP, in that application, had argued that the OSP was set up to purposely investigate and prosecute corruption and corruption-related offences and, therefore, it had no power to prosecute the offences under the alleged tax evasion case.
Ambulance purchase charges sustained
However, the court rejected the same argument in the case involving the purchase of the ambulance on the basis that the particulars of those offences were related to corruption and, therefore, they fell under the mandate of the OSP.
“The particulars given fall within the mandate of the Special Prosecutor and, therefore, they are properly before the court,” Justice Asare-Botwe held.
The charges in the ambulance case, which are offences under the Public Procurement Act, 2003 (Act 663), are contravening, conspiracy and abetment to contravene Act 663.
Mr Ayariga pleaded not guilty to all the charges and was granted a self-recognisance bail in the sum of GH¢100,000.
The six other accused persons — Hajia Ninchema, Sumaila Ewuntomah Abudu, a former Municipal Coordinating Director for Bawku; Alex Vadze, the Procurement Officer for the assembly; Abdul Mumuni Jesewunde, the Municipal Finance Director; Mary-Stella Adepesa, the Municipal Health Director, and Mumuni Yakubu Nambe, a businessman, also pleaded not guilty to charges of contravening Act 663 and conspiracy to contravene Act 663.
They were each granted bail in the sum of GH¢50,000, with two sureties, one of which must be resident in Accra.
Hearing continues on July 8, 2019 for a case management conference.
Case against Ayariga
Mr Ayariga is facing two separate criminal cases initiated by the OSP.
In the first case, he is alleged to have used his position as MP to evade taxes by paying GH¢6,062.86, instead of GH¢36,591.15, to clear some vehicles at the port.
He has been charged for using public office for private benefit.
With regard to the second case, the OSP has charged the MP and six others, including the current MCE for Bawku, Hajia Ninchema, for allegedly engaging in procurement breaches.
The seven accused persons are facing seven counts of conspiracy, abetment, contravention of the procedure for request for quotation, using public office for profit and transfer of foreign exchange from Ghana through an unauthorised dealer.
The seven are alleged to have acted together to import an ambulance without following due procurement process, as stipulated by law.