Initially charged with three counts of treason felony, attempted genocide and engaging in terrorism act, Mr Agyepong was acquitted after the court upheld his lawyer's submission of no case.
The state has declared its intention to appeal against the discharge and acquittal of the Member of Parliament (MP) for Assin North, Mr Kennedy Agyapong, of any wrongdoing in an allegation of him pitting Ashantis against Gas and Ewes.
Subsequently, the Circuit Court in Accra, which on July 2, 2013 upheld a submission of no case from Mr Ayikoi Otoo, lawyer for the MP, yesterday granted the state permission to pursue its appeal.
A Chief State Attorney, Mr Anthony Rexford Wiredu, has filed an application on behalf of the state praying the court to permit the state to file an appeal at the Court of Appeal.
In a terse ruling, the presiding judge, Mr Ebenezer Osei Darko, granted the state permission but gave no reasons for the court’s decision.
Mr Agyapong’s case for acquittal
Mr Otoo, a former Attorney-General and Minister of Justice, filed a written submission of no case, which prayed 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 and argues that the MP must be made to answer the charges.
Coming under the common law authority in Ghana for making submissions of no case, Mr Otoo held the view that the prosecution had not led any evidence to prove an essential element in the alleged offence to warrant a conviction.
According to counsel, 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, 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 “it is therefore, submitted that the prosecution has woefully failed to prove that the accused person was part of that magical five or more persons.”
Counsel held that it was abundantly clear that Mr Agyapong was not involved and for that reason the charge of provocation of riot was not applicable to his client at all.
On the count of offensive conduct conducive to the breaches of the peace, Mr Ayikoi submitted that the prosecution should have proven 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.
No offence was committed
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 the peace.
Disproving that allegation, Mr Otoo in his written submission held that it was admitted 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 determined the offence “is the place where the words were uttered.”
Chronology of events
Mr Agyapong was said to have committed the offence on April 13, 2013 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 Mr Agyapong exactly 48 hours after the Supreme Court threw 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).
The MP has since April 17, 2012 been 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.