I am relieved - Ayariga expresses joy as SP drops charges

BY: Emmanuel Ebo Hawkson

The National Democratic Congress (NDC) Member of Parliament (MP) for Bawku Central, Mr. Mahama Ayariga, has expressed great relief over the decision by the Special Prosecutor (SP), Mr. Kissi Agyebeng, to discontinue a criminal case against him (the MP).

The SP yesterday undertook his first prosecutorial duty since he assumed office last August by filing a nolle prosequi at the Accra High Court to drop all charges against the legislator, who was standing trial on accusation of using his office to evade taxes.

In dropping the charges against the MP, Mr. Agyebeng said going ahead with the trial would be a “complete waste of time’’, as the evidence available could not be used to prove the case beyond reasonable doubt, which was the standard in criminal trials.

Great relief

Welcoming the development, Mr. Ayariga told the Daily Graphic that he was relieved that the case was over, as it would allow him to fully concentrate on his work as a legislator and discharge his obligations to his constituents and the good people of the country.

“The trial has been very distracting. There were times I could not visit my constituency or travel. Once you are flagged as being prosecuted, it affects your reputation. All of a sudden people who deal with you become very careful. All these went to undermine my efforts to effectively do my work as a legislator,” he said.

He described the case as a “misunderstanding of a simple transaction”, adding that all evidence on record showed that he had not indulged in any illegality or criminality.

Not guilty

Mr. Ayariga was dragged to court by Mr. Agyebeng’s predecessor, Mr. Martin Amidu, in June 2019 over an allegation that he had used his public office for private benefit to evade taxes by paying GH¢6,062.86, instead of GH¢36,591.15, to clear a vehicle at the port.

The legislator was 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 through an unauthorised dealer.

A second accused person, Mr. Kendrick Akwasi Marfo, a car dealer, was also charged with fraudulent evasion of customs duties and taxes.
The two denied any wrongdoing and pleaded not guilty to all the charges.

Nolle prosequi

Making a case for the nolle prosequi, Mr. Agyebeng submitted to the court that after scrutinising and reviewing the case and the evidence in support, his outfit came to the conclusion that the prosecution’s case would ultimately fail.

He said the evidence was not watertight and could, therefore, not be used to prove the case beyond reasonable doubt in order to secure a conviction.

“We wish to inform the court of the Republic’s intention to enter a nolle prosequi in respect of all the charges against the accused persons,” the SP said.

Additionally, he said, if the prosecution proceeded with the case, it was likely to suffer the same fate as an earlier case filed against Mr. Ayariga and six others, which was thrown out by the High Court after the court had upheld a submission of ‘no case’ by defence lawyers.

In that particular case, Mr. Ayariga, together with six others, including a former Municipal Chief Executive for Bawku, Hajia Hawa Ninchema, was charged by Mr. Amidu for allegedly engaging in procurement breaches over the purchase of an ambulance.

Following the nolle prosequi by the SP, the presiding judge, Justice Afia Serwah Asare-Botwe, discharged Mr. Ayariga and Mr. Marfo.

Nolle prosequi, which is a Latin term meaning ‘to be unwilling to pursue’, is a discretion giving to prosecution to discontinue a criminal case at any stage before the judgment or final verdict.

Under Section 54 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30), an accused person shall immediately be discharged by the court when prosecution enters a nolle prosequi.

Notable issues

The trial of Mr. Ayariga was the only prosecution conducted by the Mr. Amidu during his tenure as the Special Prosecutor (SP).
It was a trial that generated a lot of public interest due to the clash between the Judiciary and the Legislature.

On the first day of its hearing, Mr. Ayariga was ordered by Justice Asare-Botwe to appear and stand trial after the court had rejected a certificate by the then Speaker of Parliament, Prof. Aaron Mike Oquaye, informing the court to exempt the MP from proceedings.

Justice Asare-Botwe was of the view that Article 118 of the 1992 Constitution, which provides immunity for MPs, only protects MPs from being invited to appear before a court as witnesses and not MPs standing trial as accused persons.

Another notable issue that came up in the trial was the capacity of the then SP to even initiate the prosecution.

Lawyers argued that Mr. Amidu was 66 years at the time of his appointment as the SP and, therefore, he was not qualified to initiate the action.

Justice Asare-Botwe dismissed the application on the basis that Mr. Amidu’s age was a constitutional issue and so she would be usurping the powers of the Supreme Court if she made a determination on it.

However, the presiding judge put the trial on hold until the final determination of a case challenging Mr. Amidu’s eligibility to hold office.
In May last year, the Supreme Court, in a 5-2 majority decision, ruled that Mr. Amidu was eligible to hold office as the SP.

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