In its ruling on Monday, June 17, 2019, the court held that making a determination on the capacity of Martin Amidu meant the court would be usurping the powers of the Supreme Court and also stop him [Amidu] from working.

The court presided over by Justice Afia Serwaa Asare-Botwe, she ruled that "Mr Amidu is the special prosecutor until the Supreme Court holds otherwise, the presiding judge."

Meanwhile, he [Ayariga] has been granted a self recognisance bail of GH¢100,000 after pleading not guilty to charges of abuse of public office among other offences.

The Court also admitted the remaining six accused persons including the Municipal Chief Executive for Bawku, Hajia Hawa Ninche to a bail of GH¢50,000 with two sureties.

The court further directed the accused to leave their passports with the court registry.

Background

Lawyers for the MP argued that Amidu was above 65-years as of the time he was nominated and approved as Special Prosecutor and, therefore, per Article 199 (1) of the 1992 Constitution, he is not qualified to hold a public office. 

Ayariga raised preliminary legal objection on the qualification of Martin Amidu, and the propriety of three of the charges before the court.

The charges struck out against the MP were fraudulent evasion of customs duties and taxes, dealing in foreign exchange without licence and transfer of foreign exchange from Ghana through an unauthorised dealer.

He is also challenging the capacity of the Special Prosecutor to handle procurement issues because the act that established the office explicitly stated that Amidu can only investigate corruption related offences.

Before proceedings began, counsel for the MP, Godwin Kodjo Edudzi Tamakloe drew the court's attention to a certificate issued by the Speaker of Parliament, Mike Aaron Quaye, filed with the registrar of the court, to the effect that Mr Ayariga was attending parliamentary proceedings.

The said certificate, which was issued pursuant to Article 118(2) of the 1992 Constitution, suggested the accused could not be arraigned while he attends to parliamentary business.

Article 118 (1) of the 1992 Constitution provides that, "Neither the Speaker, nor a member of, nor the Clerk to Parliament, shall be compelled while attending Parliament to appear as a witness in any court or place out of Parliament.

Clause (2) further provides that, "The certificate of the Speaker, that a member or the Clerk is attending the proceedings of Parliament, is conclusive evidence of attendance at Parliament.

Ayariga is facing two separate criminal cases initiated by Martin Amidu.

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.

The Special Prosecutor also accused the NDC MP of allegedly abusing his office as a public officer for his private benefit by "selling three Toyota V8 Land Cruisers with registration numbers GR 2220-18, GR 2221-18 and GR 2222-18 meant to be used for his official duties as a Member of Parliament to Kendrick Akwasi Marfo of ATLAS-Rent-A-Car at a price of GH¢40,000 each."

The MP among other things is accused by Amidu of transferring "foreign exchange from Ghana through an unauthorised dealer contrary to sections 15(3) and 29(1) of the Foreign Exchange Act 2006, Act 723."

Ayariga is jointly charged with one Kendrick Akwasi Marfo of ATLAS-Rent-A-Car company.