Kissi Agyebeng, the Special Prosecutor, entered a “nolle prosequi” in court today (Monday 11 October) to discontinue the case against Mahama Ayariga, the NDC Member of Parliament for Bawku Central and Kenderick Akwasi Marfo, the second accused person in the case (A2).
Speaking to journalists after his filing, Agyebeng said, “This morning [Monday] we entered a nolle prosequi in respect of the second case against Mahama Ayariga (A1) and Kenderick Akwasi Marfo (A2).
“It’s simple: after I assumed office, we have further scrutinised the docket [and], upon the available evidence, we deem that the republic would be unable to prove its case.
“It would be a complete waste of time if we were to open this case further and go to a length where it will only be dismissed on the submission of no case to answer,” Agyebeng told journalists outside the court.
The move leaves Ayariga a free man about all pending criminal proceedings filed by the former special prosecutor, Martin Amidu.
Amidu had put the National Democratic Congress MP on trial over two matters – breaching procurement processes in purchasing ambulances for his constituency and tax evasion in importing various “luxurious” vehicles. It was the first case opened in court by the newly established Office of the Special Prosecutor and began in May 2019.
Ayariga was charged along with six others. He was accused of abusing his office after clearing three Toyota V8 vehicles without paying tax.
He was also sued for illegal transfer of foreign exchange from Ghana to Dubai without having the requisite licence to undertake such a transaction.
But on 7 May this year, the charges were dismissed by an Accra high court. The court presided over by Justice Afia Serwaa Asare-Botwe, acquitted and discharged all seven accused after it upheld a submission of no case filed by the defence lawyers.
Defence lawyer
Ayariga’s lawyer, Godwin Edudzi Tamekloe, in brief remarks to journalists after the court hearing, said his client was grateful to the new Special Prosecutor for his decision not to continue with the case.
“It has not come to us as a surprise that the new Special Prosecutor has decided in good conscience to file a nolle prosequi, and rightly so.
“He [the Special Prosecutor] indicated that the evidential standard required in a criminal trial is proof beyond reasonable doubt and he is unable to do that with the evidence available.”
Tamekloe added, “We are grateful to him and we are grateful to the court for what has happened today.”
Facts of the case
According to the fact sheet for the action filed by the former special prosecutor, Parliament at its fifth sitting on 7 April 2017 approved, by a resolution, a loan agreement between the House and Société Générale Ghana covering the purchase of members’ official vehicles.
Out of this loan, each MP was entitled to a personal loan of $80,000, payable within four years, to purchase their official vehicle.
However, MPs could only access the loan facility through a supplier and no MP was entitled to collect the loan due him or her personally, for the stated purpose for which the loan was secured or otherwise.
According to the fact sheet, Ayariga “then requested his share of the loan to be released to ASH Plantpool Ltd as his supplier” and the money was released to the company by Société Générale Ghana, in line with the approval given by the deputy clerk to Parliament.
Once the money was transferred into the company’s account, $78,000 was transferred to A1’s account with Standard Chartered Bank – Opeibea House branch. Sheriff Ahmed Tijani Abdulai, owner of ASH Plantpool Ltd, was said to have kept the remaining $2,000 as his commission, contrary to the original loan agreement.
A1 then used the money to import three second-hand Toyota V8 Land Cruisers from Dubai. He applied for tax exemption to clear the three vehicles from the port and was granted this, on condition that he pay duties and taxes of GHC36,591.15 upfront, even before the vehicles were cleared from the port because the duties and taxes on the vehicles exceeded his allowable tax exemption.
Unlicensed transaction
Rather than pay the amount stated as tax, however, a sum of GHC6,062.86 was paid by A1 to clear the vehicles from the port in Tema.
When the vehicles were cleared from the port, Mahama Ayariga (A1), instead of using them for official duties, for which reason the tax exemption had been granted to him, sold the vehicles to Kenderick Akwasi Marfo (A2) for $40,000 each, it was said. A2 made a part payment of $9,000 towards the agreed total and promised to pay the balance in August 2018.
Investigations into the matter showed that A1 transferred $90,000 to Dubai for the purchase of the vehicles through an agent of his overseas supplier who had no licence to carry out foreign exchange transactions.
The investigations further showed that although A2 knew the vehicles had been exempted from customs duties and taxes, he failed to pay these exemptions before purchasing the vehicles, nor did A1 pay the tax exemptions before the sale.
Wilberforce Asare
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