The Economic and Financial Crime Court presided over by Justice Afia Serwaa Asare Botwe, has dismissed an application by Member of Parliament (MP) for Bawku Central, Mahama Ayariga, challenging the qualification or otherwise of the Special Prosecutor, Mr. Martin Amidu, to bring charges against him based on the fact that he is not a legitimate holder of the Office of Special Prosecutor of the Republic of Ghana.
In addition, the Court granted the request of lawyers of Mahama Ayariga to strike out Count one (1), three (3), four (4) and five (5) as they believe that they are offences that are not within the remit or powers of the Special Prosecutor and same cannot be prosecuted by the Office.
Effectively, the second accused person, Kendrick Akwasi Marfo, has been discharged and Mr. Mahama Ayariga has only count two (2), Using Public Office for Private Benefit Contrary to Section 179C (a) of the Criminal Offences Act 1960 (Act 29), to answer to.
Lawyer for the MP, Dominic Ayine, filed a motion at the Financial and Economic Crime High Court challenging the qualification of the Special Prosecutor to prefer charges against his client. Ironically, a pending application at the Apex Court of the land which has raised similar issues was also filed by Dominic Ayine.
According to the affidavits in support of the motion filed by lawyers of the MP, Mr Ayariga states that he has been advised by Counsel and verily believes same to be true that the Special Prosecutor, Martin Amidu, who is above 65 years is not qualified to hold the Office of Special Public Prosecutor since the holding of that office is in contravention of Article 199(1) and (4) of the 1992 Constitution of Ghana.
The Affidavit states, “I have been advised by Counsel and verily believe same to be true that due to the disqualification of the Special Prosecutor, Martin Amidu, under Article 199 (1) and (4) of the 1992 Constitution of Ghana, he has no capacity in law to append his signature on the charge sheet, the process originating the criminal charges against the Applicant [ Mahama Ayariga] MP.”
The affidavits further argued that, “Count one (1), three (3), four (4) and five (5) are offences that are not within the remit or powers of the Special Prosecutor and same cannot be prosecuted by the Office.”
According to Justice Afia Serwaa Asare Botwe’s Court, the claim that Count one (1), three (3), four (4) and five (5) are offences that are not within the remit or powers of the Special Prosecutor cannot be accurate. In the opinion of the Court, the Charges preferred are in accordance with the law.
On the challenge of the qualification or otherwise of Mr. Martin Amidu as the Special Prosecutor, the Judge indicated that she will not be invited to assume the powers of the Supreme Court and injunct a public office holder while he is still in office. The qualification or otherwise of Mr. Amidu to hold office as the Special Prosecutor is solely a power reserved for the Apex Court of the land. “The application stands dismissed and the plea of the accused persons will be taken immediately” the Court said.
Mahama Ayariga (MP) and Kendrick Akwasi Marfo, were charged with five counts of one (1) Fraudulent Evasion of Customs Duties and Taxes Contrary to Section 121 (2) (f) of the Customs Act, 2015 (Act 891); two (2) Using Public Office for Private Benefit Contrary to Section 179C (a) of the Criminal Offences Act 1960 (Act 29); three (3) Fraudulent Evasion of Customs Duties and Taxes Contrary to Section 121 (2) (f) of the Customs Act, 2015 (Act 891); four (4) Dealing in Foreign Exchange Without License Contrary to Section 3 (1) and 29 (1) (a) of the Foreign Exchange Act, 2006 (Act 723) and five (5) Transfer of Foreign Exchange from Ghana through an Unauthorized Dealer Contrary to Section 15(3) and 29(1) (a) of the Foreign Exchange Act, 2006 (Act 723). -Wilberforce Asare
