In his writ invoking the original jurisdiction of the Supreme Court, Afoko is seeking a declaration that the nolle prosequi filed by the A-G on January 28, 2019 is a violation of articles 23 and 296 of the 1992 Constitution and, therefore, “unconstitutional, null and void”.
Article 23 imposes a duty on administrative bodies to “act fairly, reasonably and comply with the requirement imposed on them by law”, while Article 296 stipulates that persons or bodies vested with a discretionary power shall not exercise that discretionary power arbitrarily or capriciously.
Afoko is further seeking an order nullifying the nolle prosequi and for “the High Court to continue to hear the case to its legal conclusion”.
Recall
Alhaji Mahama suffered severe bodily injuries after a substance suspected to be acid was allegedly poured on him in front of his house in Bolgatanga on May 20, 2015. He later died from the injuries at the Bolgatanga General Hospital.
Afoko’s trial started in 2016 and was nearing completion after the prosecution and the defence had closed their cases.
On January 26, 2019, Afoko closed his case after he and his brother, John Ishmael Afoko, had testified.
The prosecution, led by a Chief State Attorney, Mr Matthew Amponsah, had called 14 individuals as prosecution witnesses.
Subsequently, the presiding judge, Mr Justice Lawrence Mensah, directed the two parties to file their written addresses.
Nolle prosequi
However, on January, 28, 2019, the A-G filed a nolle prosequi to discontinue the trial following the arrest of the other suspect, Asabke Alangdi, who had been on the run since the incident occurred in 2015.
Afoko and Alangdi were then put before the Accra Central District Court on provisional charges of conspiracy to commit murder and murder for committal proceedings, which are a prelude to the trial at the High Court.
In his writ at the Supreme Court, Afoko is also praying for an order terminating the case at the district court.
File an application
At yesterday’s hearing at the Accra Central District Court, the lawyer for Afoko, Ms Benedicta Ansah, urged the court to stay proceedings pending the final determination of the writ filed at the Supreme Court.
In response, a State Attorney, Ms Lily Atutigah, informed the court that Afoko’s lawyer wrote to the Registrar of the court about the case at the Supreme Court, instead of filing a formal application for a stay of proceedings.
argued that the proceedings could not be halted by a mere letter to the registrar of the District Court.
The presiding magistrate, Ms Efua Sackey, agreed with the State Attorney and directed Afoko’s lawyers to file a formal application and also serve the A-G.
Hearing continues on February 27, 2019.
Daily Graphic