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The court was led by the Chief Justice Kwasi Anin Yeboah presiding, Sule Gbadegbe, Paul Baffoe Bonnie, Samuel Marful Sau, Agnes Dordzie, Nene Amegatcher and Professor Ashie Kotey.
Dr Dominic Ayine, a Member of Parliament for Bolgatanga East and former Deputy Attorney-General filed the suit against the state challenging the eligibility of Mr Amidu two years ago.
Dr Ayine, proceeded to the Supreme Court seeking a Constitutional interpretation in a case that Mr Amidu was 66 when he was nominated, and, therefore, he could not become the Special Prosecutor.
The Plaintiff held that by a true and proper interpretation of Articles 190 (1) (d), 199 (1), 199 (4) and 295 of the 1992 Constitution, the retiring age of all holders of public offices created pursuant to Article 190 (1) (d) was 60 years and not beyond 65 years.
In a statement of case accompanying the writ, the former Deputy Attorney General held that by nominating and appointing Mr Amidu to be vetted and approved by Parliament, both the A-G and the President, respectively, had violated Article 199 (1) of the 1992 Constitution.
“The Office of the Special Prosecutor was established by an Act of Parliament pursuant under Article 190 (1) (d) of the 1992 Constitution, which confers on Parliament the power to create such other public services as it may prescribe, in addition to the public services spelt out in Chapter 14 of the 1992 Constitution.
“The Office of the Special Prosecutor is, thus, a creature of the Constitution to the extent that it is a direct offshoot of a power drawn from Article 190.
“Once Parliament passed Act 959 and the President assented to it on January 2, 2018, the Office of the Special Prosecutor became part of the public service and governed by the constitutional provisions relating to the public service and public office holders,” the statement of case noted.
However in the state’s response to the suit, Mr Godfred Yeboa Dame, Deputy-Attorney argued that public servants compulsorily retired at the age of 60, with a further possibility of extension of their years of service under Article 199 (4), and that not all public officials were caught by the compulsory retirement age of 60.
Mr Dame therefore, prayed the Apex Court of the land to hold that the position of Special Prosecutor is a public office (organ) like the Statute Law Revision Commissioner, not caught by the retiring age prescriptions in Article 199.
“It is submitted that to place the constraints of age on a person who exercises prosecutorial powers when the Constitution has not specifically provided for same is plainly untenable,” the Deputy A-G argued.
Mr Dame further contended that by the combined effect of Articles 88 (4) and 298 of the 1992 Constitution, the enactment of Act 959 to provide for the appointment of a Special Prosecutor on a non-renewable seven-year tenure and the subsequent appointment of Amidu to that office were within the rightful legislative competence of Parliament.
