March 15, 2012 (Page 3 Lead)
THE Accra Fast Track High Court will on April 12, 2012 decide whether or not to refer the issue on the retirement age of State Attorneys to the Supreme Court for interpretation.
The court’s decision will have a bearing on the locus of a Chief State Attorney, Mr. Anthony Gyambiby, who is being challenged as not being eligible to continue prosecuting a criminal case against a former Minister of Information and eight others others on the grounds that he had attained the compulsory retirement age of 60.
The defence team had argued that Mr. Gyambiby had no locus to continue prosecuting the case because he had attained the compulsory retirement age of 60 and had no authorization to continue with the case.
The court, presided over by Mr. Justice Charles Quist fixed the date after defence and the state’s legal team had argued their cases.
A former Minister of Information, Stephen Asamoah-Boateng, his wife, Zuleika and seven others have been charged with conspiracy to defraud the State.
Other accused persons are Kofi Asamoah-Boateng, former Director of Finance, Ministry of Information and National Orientation, Frank Agyekum, a Former Deputy Minister of Information and National Orientation, Dominic A. Sampong, Former Acting Chief Director, Ministry of Information and National Orientation, Kwabena Denkyira, a Deputy Director of Finance and Administration of the Ministry, Prosper Arku of Supreme Procurement Agencies Limited and Yasmine Domua, a businesswoman.
Also in court is Supreme Procurement Agencies Limited, an entity.
The accused persons are alleged to have conspired to defraud the State of GHC86,915.85 in renovation works undertaken at the Ministerial Block of the Ministry during Asamoah-Boateng’s tenure in office.
They have all pleaded not guilty and admitted to GHC10,000 bail each with a surety.
An affidavit in support of the motion challenging the retention of Mr. Gyambiby as the prosecutor in the case and sworn by Mr D.A.Y. Sampong, the fifth accused person in the case, said Mr Gyambiby was born on November 28, 1947 in Ghana.
Sampong said the prosecutor was 64 years old and that in 2007, Mr Gyambiby attained the age of 60 and therefore retired from public service.
He stated that Mr Gyambiby could be engaged on contract basis by the Ministry of Justice and Attorney General’s Department through the Public Service Commission as a Consultant or contractor based on contract but not as a Chief State Attorney.
The accused person said Mr. Gyambiby ought to have indicated to the court that
he was on contract and ought to have shown the court the contract from
the Public Service Commission before prosecuting the matter.
He further deposed that Mr. Gyambiby ought to show the court his four years contract
documents to indicate his capacity to appear before the court and prosecute since he had attained age 60.
The fifth accused person said Mr Gyambiby could only be appointed as a consultant in the office and not as a private prosecutor.
Arguing for the state, a Principal State Attorney, Mr. Anthony Rexford Wiredu, Gyambiby attained the age sixty on November 28, 2007 and during that period he had an accrued right which was automatic to continue prosecution to the age of 65.
“It was only in September 2010 that the Legal Service Board said an Attorney who needed re-engagement must apply. Until then it was not done. Mr. Gyambiby was already continuing his service as it was the practice before and so was not affected by the decision and therefore, had the accrued right to continue prosecution,” Mr Wiredu argued.
Mr. Wiredu pointed out that PNDC Law 320 gave Mr Gyambiby the mandate to retire at age 65 in the same vain as a High Court judge.
On the issue of the letter written to the court by a former Attorney-General, Mr. Martin Amidu on January 9, 2012, asking that Mr. Gyambiby should continue prosecuting the case, Mr. Wiredu explained the A-G had the authority not in person but the office to appoint lawyers even by word of mouth to represent the state in court.
“Mr Gyambiby has the authority of the A-G and the Legal Service Board to prosecute cases assigned to him through the Director of Public Prosecutions. It does not lie in anybody’s mouth to ask Mr. Gyambiby to produce a re-engagement letter,” Mr. Wiredu argued.
Counsel for Sampong, Mr Augustines Obour, then prayed to refer the issue on the retirement age of a State Attorney to the Supreme Court for interpretation.