The Accra Circuit Court will on July 2, 2013 rule on a submission of no case which is praying it to acquit and discharge the Member of Parliament (MP) for Assin North, Mr Kennedy Ohene Agyapong, who is accused of pitting Ashantis against Gas and Ewes.
Counsel for the MP and a former Attorney-General and Minister of Justice, Mr Ayikoi Otoo, has filed a written submission of no case which is praying the court to free Mr Agyapong on the grounds that the state had failed to prove two counts of provocation of riot and offensive conduct conducive to breaches of the peace, but the state holds a different position.
The court, presided over by Mr Ebenezer Osei Darko, fixed the date after he had indicated that he had received written addresses and responses from the defence and the state.
However, a Chief State Attorney, Mr Rexford Wiredu, indicated that he had not received a copy of the latest reply to his response to the submission of no case.
He did not make it clear as to whether or not he would file a response to the latest document filed by the defence.
Provocation of Riot
Relying on the common law authority in Ghana for making submissions of no case which is the The State v Ali Kassena (1962) GLR 144, counsel for Mr Agyapong is holding that the prosecution has not led any evidence to prove an essential element in the alleged offence to warrant a conviction.
Counsel has argued that the ingredients to prove the offence of provocation of riot must include five or more persons acting together to commit the riot in a public or private place with the persons executing a common purpose to commit violence without lawful authority.
Applying this principle of the law to Mr Agyapong’s case, counsel submitted that a prosecution witness under cross examination informed the court that Mr Agyapong was in custody when some party activists besieged the police station, engaged in rowdysm and vandalism and demanded his release.
According to counsel, it was clear Mr Agyapong was in custody while five or more persons engaged in riots, adding that, “it is, therefore, submitted that the prosecution has woefully failed to prove that the accused person was part of that magical member five or more persons.”
Counsel held that it was abundantly clear that Mr Agyapong was not involved, and the charge of provocation of riot was not applicable to his client at all and consequently, prayed the court to acquit and discharge the MP.
Offensive Conduct
On the count of offensive conduct conducive to the breaches of the peace, Mr Ayikoi submitted that to prove such offence, the prosecution should have proved that the accused person was in a public place or at a public meeting before he could be charged with having used threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace.
The evidence in support of the charge against the accused person was that he phoned into a radio programme, and made remarks which in the opinion of the prosecution amounted to the breach of peace.
Disproving that allegation, Mr Otoo, in his written submission, held that it was admitted by a prosecution witness during cross examination that Mr Agyapong made the said phone call from his private residence.
That broadcast, counsel submitted was of no moment to the commission of any offence since what determines the offence “is the place where the words were uttered.”
Background to the Case
Mr Agyapong was said to have committed the offence on April 13, 2012, when he called into a radio programme and directed Ashantis to attack Gas and Ewes.
The state on July 6, 2012, dropped first degree felony charges against the Mr Agyapong, exactly 48 hours after the Supreme Court had thrown out its request to quash proceedings against the MP, who was standing trial at the Fast Track High Court for allegedly pitting Ashantis against Gas and Ewes.
Initially charged with three counts of treason felony, attempted genocide and engaging in terrorism act for allegedly inciting Ashantis against Ewes and Gas, as well as declaring war, the MP is now faced with two counts of provocation of riot contrary to section 200 and section 196 (1) (a) of the Criminal Offences Act, 1960, (Act 29) and another count of offensive conduct conducive to the breaches of the peace contrary to section 207 of the Criminal Offences Act, 1960 (Act 29).
He has pleaded not guilty to the charges.
The MP has since April 17, 2012 trundled between the Adjabeng District Magistrate Court where the magistrate declined jurisdiction; the Human Rights Court which granted him bail; the Fast Track High Court, which was billed to commence his trial and the Supreme Court where the prosecution had prayed it to quash proceedings at the Fast Track High Court.
He was first put before the Circuit Court presided over by Mr Ebenezer Osei Darko on July 19, 2012.
The prosecution called three witnesses and has since closed its case.
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