The Financial and Economic Crimes Division of the Accra High Court has ordered the Member of Parliament (MP) for Bawku Central, Mahama Ayariga, to appear before the court regularly for his trial in two separate criminal cases brought against him by the Office of the Special Prosecutor (OSP).
The court arrived at the decision after it rejected a certificate filed by the Speaker of Parliament informing the court to exempt Ayariga from yesterday’s court hearing because he was attending parliamentary proceedings.
In a ruling yesterday, the court, presided over by Justice Afia Serwah Asare–Botwe, held that the Immunity Clause in the 1992 Constitution which protected parliamentarians from being summoned to appear before a court in the course of their work did not apply in Ayariga’s case.
It was the considered view of the court that Article 118 of the 1992 Constitution which provides the immunity only protects MPs from being invited to appear before a court as witnesses and not MPs standing trial as accused persons.
“From the above provision, the accused person (Ayariga) was expected to be in court because he was an accused person and not a witness,” Justice Asare-Botwe ruled.
The presiding judge also held that in view of the express provisions of Article 118, the court could not accept the certificate filed by the Speaker of Parliament at the court’s registry as of yesterday.
“The accused (Ayariga) is not here as a witness and so the certificate under Article 118 (2) will not apply,” the judge held.
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The Speaker of Parliament, Professor Mike Oquaye, ruled in Parliament that Ayariga should attend the trial, but the court should programme the trial in a manner that would not disrupt Ayariga’s duties as a legislator.
Missing in action
Earlier, when the case was initially called around 9:30 a.m., Ayariga was not present in the courtroom, a situation which made Justice Asare-Botwe stand down the trial until 1 p.m., with a directive to Ayariga’s counsel to ensure that Ayariga appeared before the court.
She stated that since the case was a criminal one, the court could not proceed without the MP’s presence.
Mr Ayariga showed up in the courtroom around 12:50 p.m., in the company of other Minority MPs, including the Minority Leader, Mr Haruna Iddrisu.
Challenge against charges
After the presiding judge had given her ruling, lawyers for Ayariga informed the court that they had filed an application to challenge the validity of the charges levelled against the MP.
Counsel for Ayariga, Mr Godwin Tamakloe, argued that the effect of the application was to attack the appropriateness of the charge sheet.
In view of that, Justice Asare-Botwe decided not to take Ayariga’s plea and also not hear any bail application on his behalf.
“There is a challenge on the validity of the charges and so it is fair for the court to hear the application first,” she held.
Hearing continues on June 10, 2019 for lawyers for the MP to move the application challenging the validity of the charge sheet.
Minority to challenge ruling
Meanwhile, the Minority in Parliament has stated that it will challenge the ruling by the High Court at the Supreme Court.
Mr Iddrisu told the media after yesterday’s hearing that Justice Asare-Botwe interpreted provisions in the 1992 Constitution, which meant she had exceeded her jurisdiction.
“The honourable judge had made a pronouncement on Article 118 of the 1992 Constitution. It is important to note that the exclusive jurisdiction for the interpretation of the Constitution is vested in the Supreme Court and not the High Court,” the Minority Leader said.
He also said the presiding judge failed to take into consideration other provisions in the Constitution, such as articles 117 and 122, which also dealt with the work of the Legislature.
According to him, Parliament was not asking the court to exempt Ayariga from the trial but ensure that his work as a legislator was not affected by the trial.
“We are not saying that he will not appear to stand trial but that he should be allowed to work as an elected representative of the people,” he said.
Two criminal cases
Ayariga was dragged to court by the Special Prosecutor, Mr Martin Amidu, in two criminal cases.
In the first case, Ayariga was accused of using public office for private benefit.
According to the Special Prosecutor, Ayariga allegedly 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 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 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.
In the second case, the Special Prosecutor 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 are alleged to have acted together to import an ambulance without following due procurement process as stipulated by law.