The Member of Parliament (MP) for Bawku Central, Mahama Ayariga, is challenging the capacity of the Special Prosecutor, Mr Martin Alamisi Amidu, to prosecute him for allegedly using public office for private benefit.
He has, accordingly, filed an application seeking the Accra High Court to strike out the charge sheet filed against him by the Office of the Special Prosecutor (OSP) and also restrain Amidu from proceeding with the criminal prosecution against him.
It is the case of the legislator that Amidu is above 65 years and, therefore, per Article 199 (1) and (4) of the 1992 Constitution, he is not ‘qualified’ to hold the office of Special Prosecutor, which is a public office.
In view of that, Ayariga is arguing that the charge sheet which gave rise to the criminal proceedings against him is “defective” because it had the signature of Amidu, who “had no capacity in law” to append his signature.
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“Due to the incurable defectiveness of the charge sheet, the charges levelled against me contained therein are also a nullity and of no effect. Under the circumstances, it is a proper case for the charge sheet to be struck out, together with the accompanying counts, by this honourable court,” he argued in his affidavit in support of the application.
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Remit of the OSP
Apart from challenging Amidu’s capacity, Ayariga is also challenging the power of the OSP to investigate and prosecute some of the offences levelled against him.
The MP argues that the OSP was set up to purposely investigate corruption and corruption-related offences.
He avers that some of the counts levelled against him, such as dealing in foreign exchange without licence, transfer of foreign exchange from Ghana through an unauthorised dealer and the fraudulent evasion of customs duties and taxes, are not under the remit of the OSP and, therefore, the office cannot prosecute him on those charges.
Direction from the court
At yesterday’s hearing, the presiding judge, Justice Afia Serwaa Asare-Botwe, directed the MP’s legal team and the OSP to simultaneously file their respective legal arguments for and against the application within three days.
The court, subsequently, fixed Monday, June 17, 2019 to rule on the application.
Supreme Court to decide?
Ayariga’s application challenging Amidu’s capacity as the Special Prosecutor is likely to be decided by the Supreme Court.
Already, there is a constitutional matter pending before the apex court on whether or not Amidu’s nomination by the President as the Special Prosecutor and his subsequent approval by Parliament are 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 has directed Dr Ayine’s legal team and the A-G to file their respective legal arguments in that matter.
Case against Ayariga
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 with four counts of fraudulent evasion of customs duties and taxes, using public office for private benefit, dealing in foreign exchange without licence and transfer of foreign exchange from Ghana through an unauthorised dealer.
A second accused person, Kendrick Akwasi Marfo, a car dealer, faces one count of fraudulent evasion of customs duties and taxes.
With regard to the second case, the OSP has charged Ayariga, together with six others, including a former Municipal Chief Executive for Bawku, Hajia Hawa Ninchema, for allegedly engaging in procurement breaches.
The MCE, Ayariga and five others 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 accused are alleged to have acted together to import an ambulance without following due procurement process, as stipulated by law.