By Bernice Bessey
The Financial and Economic High Court ‘2’, presided over by Justice Afia Serwaa Asare Botwe, has told the Member of Parliament (MP) for Bawku Central, Mahama Ayariga, that the Special Prosecutor, Martin Amidu, has the power to prosecute him.
According to the judge, Mr Amidu’s position as the Special Prosecutor could only be overturned by the Supreme Court, and since that has not been done, Amidu still has the powers to prosecute him (Ayariga)
Justice Afia Serwaa Botwe indicated that it would be suicidal for the High Court to go ahead of the Supreme Court to make such a determination of the qualification and capacity of the Special Prosecutor, as is being challenged by Mr Ayariga and others.
The trial judge, in an explanation, pointed out to Mr Ayariga when he appeared before the court yesterday, June 17, 2019, that Mr Amidu has the power to prosecute him as a public officer.
Lawyers for Mr Ayariga, Dr Dominic Ayine, James Agalga and Godwin Tamakloe, applied to the court to strike out the charge sheet brought against their client, but Justice Afia Serwaa Botwe, at the end of the day, rather struck out their application.
Justice Afia Serwaa Botwe further struck out preliminary legal objections or issues raised by Counsel for the 2nd accused person, Ali Komaili, that the Special Prosecutor had no capacity and qualification to investigate and/or prosecute on sections 43(1) and 92(10) of the Public Procurement Act, 2003 (as amended) Act 663, and the competence of the Special Prosecutor and lawyers in that office to practice law without a solicitor’s licence.
The MP is standing trial with six others on the counts of conspiracy to contravene procurement request for quotation contrary to section 23(1) of the Criminal Offences Act, 1960 (Act 29 and sections 43(1) and 92(1) of the public Procurement Act, 2003 (As Amended), Act 663.
Mr Ayariga, who is the seventh accused person in the case, with the others, are facing criminal charges for the role they played in the importing of a Mercedes Benz ambulance for health care delivery in the Bawku Municipality, and that the first to fifth accused persons connived and prepared a fake procurement documents, quoting fake prices.
The other six accused persons are Hajia Hawa Ninchema, Sumaila Ewuntomah Abudu, Alex Vadze, Alhaji-Mumuni Jesewunde, Mary-Stella Adapesa and Mununi Yakubu Nambe.
The third accused, Alhaji-Mumuni, according to the fact sheet, forged the signatures of the Works and Planning Officer of the municipality to make the document look authentic, after realising they would be found out.
Mr Ayariga’s role in this procurement deal was that he purchased the ambulance with funding secured from the MPs’ Common Fund, where he applied for tax exemption for its import, However, the bone of contention is that after importing the vehicle, the documents were forged so that the ambulance was branded in his name.
Mr Ayariga, on that score, succeeded in having his name branded on the ambulance as “Donated by Mahama Ayariga, MP for Bakwu Central Municipality for the people of Bawku.”
The court, after giving the ruling, immediately took the plea of the accused persons, to which all of them pleaded not guilty to the accusations. The six persons were released on a bail of GH¢50,000 with two sureties each, of which one must reside in Accra. Mr Ayariga, on the other hand, was given self recognisance with a bail of GH¢100,000.
In related issue, Mr Ayariga was cleared of four out of five charges levelled against him by the Special Prosecuter before the same court.
The court granted the request of the lawyers of Mr Ayariga to strike out count one: Fraudulent evasion of custom duties and taxes contrary to section 12(2) (f) of the Customs Act, 2015 (Act 891); Fraudulent evasion of Customs duties and taxes contrary 12(2)(f) of the Customs Act, 2015 (Act 891); dealing in foreign exchange without license contrary to sections 3(1) and 29(1)(a) of the Foreign Exchange Act, 2006 (Act 723), and Transfer of foreign exchange from Ghana through an unauthorised dealer contrary to sections 15(3) and 29(1)(a) of the Foreign Exchange Act 2006, Act 72.
These offences, according to the court, are not within the remit and powers of the Special Prosecutor and same cannot be prosecuted by the Office.
Mr Ayariga will, however, face the charge of “Using public office for private benefit contrary to section 179(a) of the Criminal Offences Act, 1960 (Act 29).”