The Supreme Court has questioned the attempt by state prosecutors to use it to stop the trial of Kennedy Agyapong, Member of Parliament for Assin North, who is accused of inciting and making inflammatory statements on radio.
It also questioned an application seeking to quash a bail granted to the MP by the Accra Human Rights Court on April 19 prior to his arraignment on charges of treason felony, attempted genocide and engaging in terrorist act.
State prosecutors, on May 22, applied to the Supreme Court to quash all proceedings in the case thus far, on grounds that the case was wrongfully placed before the High Court, and hence it lacks jurisdiction to try Mr. Agyapong.
Again, they filed another motion on notice seeking a review in a form of certiorari to quash the bail granted Mr. Agyapong following a habeas corpus application. They claim the action by the Human Rights Court was arbitrary on claims that the court did not have the jurisdiction.
At its sitting yesterday, the five-member panel chaired by Justice S.K. Dateh-Ba wondered why the state prosecutors are inviting the Supreme Court to quash the trial proceedings instead of a nolle prosequi which it explained, would give the same effect.
According to the court, it is within the power of the Attorney General to file a nolle prosequi to discontinue the trial, which in effect, renders all the proceedings so far nullified.
Further, the court wondered whether the bail granted Mr. Agyapong and the habeas corpus proceedings have not been rendered mute in view of the fact that that action was discontinued by lawyers for Mr. Agyapong.
“Is the remedy you are seeking to quash a live order?,” one of the judges , Justice Anin Yeboah asked the state prosecutors.
Responding, Principal State Attorney, Anthony Rexford Wiredu, said what the Human Rights Court did was wrong, explaining that the import of a habeas corpus application is to “produce the body” in court.
According to him, the state was to produce Mr. Agyapong who had at the time been detained beyond the constitutional provision of 48 hours, in court and therefore for the court to grant bail was “arbitrary”.
Mr. Ayikoi Otoo, counsel for Mr. Agyapong, opposed the application, noting that they had since April 24 discontinued the action when his client was formally put before court on April 19 on charges.
But before Mr. Otoo could finish his submissions, Mr.Wiredu drew the court’s attention to the fact that he had not been served with a copy of the application in opposition to his application.
In view of the development, the court was forced to adjourn the case sine die and declared all the submissions made by both Mr. Wiredu and Mr.Ayikoi as expunged from the records and null and void.
Earlier, an Assistant State Attorney, Kwame Amoako, who was led by his seniors, came under pressure from the judges as he struggled to justify why they filed a certiorari when they could have issued a nolle prosequi at the High Court to discontinue the criminal proceedings.
According to him, they took the right step and noted that the High Court invoked its jurisdiction wrongfully.
Although he said the case was taken to the High Court for committal process, he conceded that they did not file any bill of indictment and summary of evidence of all the prospective witnesses as required by law in committal procedure.
But the two-man counsel for Mr. Agyapong, led by Nii Ayikoi Otoo, opposed the application by the state prosecutors describing it as “the most unmeritorious application that has ever been filed”.
He argued that if the prosecution believes it wrongfully placed the case before the High Court, the best way to correct the error was to file a nolle prosequi to discontinue it and not waste the Supreme Court’s time with a certiorari to correct its (prosecution) errors.
The Court has meanwhile fixed July 4 to decide whether to quash the trial proceedings.
Mr. Agyapong who was arrested by the Police on April 16 was detained beyond the 48-hour constitutional provision without charges; prompting his lawyers to initiate a habeas corpus application on April 19 at the Accra Human Rights Court.
Consequent to the action, the Human Rights Court on April 19 exercised its discretion under Order 56 Rule 4 of the High Court Rules to grant GHC 200,000- bail to the MP on health grounds.
It further ordered the IGP to appear in court on April 24 to show cause to the court as to why Mr. Agyapong should continue to be in detention but when the court resumed on the said date, his lawyers discontinued the action on grounds that his client was put before court immediately after the bail was granted.
Mr. Agyapong was first put before an Accra Magistrate’s Court on April 18 on three counts of treason, treason felony and attempted genocide, but the court, presided over by Ms. Patricia Quansah, declined jurisdiction.
It premised its decision on a circular from the Judicial Secretary dated June 17, 2008 in which a directive was given that cases such as treason, robbery, defilement, hijacking, among others, should be referred to the Chief Justice’s Secretariat for a court to be assigned to hear the case.
On April 19, he was put before the High Court on fresh charges of treason, felony, attempted genocide and engaging in terrorist act, two hours after he was first granted bail by the Accra Human Rights Court on a habeas corpus application.
But Mr. Agyapong, who denied all the charges, was granted GH¢200,000 bail with one surety justified, and was made to sign a bond to be of good behaviour until the final determination of the case, as well as one surety to be justified.