The Kaneshie District Court has declined to hear the case of 11 alleged illegal miners accused of mining in the Atewa Forest Reserve under the guise of being National Security operatives.
According to the magistrate, Ms Ama Adomako Kwakye, the case before her was not proper in law and so she could not hear it.
The accused persons were charged with possession of firearms without lawful excuse contrary to Section 192 of the Criminal Offences Act, 1960 (Act 29).
Per Section 192 (2) of Act 29, a person charged with possession of firearms without lawful excuse could only be prosecuted with a written consent of the Attorney-General (A-G).
It was the considered view of the court that the police prosecutors had failed to provide the written consent from the A-G as required by law.
Consequently, the magistrate held that there was no case before her to adjudicate.
The magistrate, therefore, decided not to rule on a bail application by lawyers for the accused persons, or remand them as requested by the prosecution.
“In the absence of a written consent from the A-G, there is no case before this court for me to rule on a bail application or remand the accused persons,” she ruled.
The ruling by the court followed submissions by counsel for the accused persons, Mr Theophilus Donkor, and the prosecutor, Assistant Superintendent of Police (ASP) Sylvester Asare.
The 11 are part of a group of 32 persons who were arrested in Akyem-Akateng in the Eastern Region this month.
It is the case of the prosecution that they allegedly carried themselves as National Security operatives, and were engaged in illegal mining in the Atewa Forest Reserve, while terrorising villages in the catchment area of the forest reserve.
The 11, who were brought to court yesterday were Adam Dakurugu, Kwame Isaac, Joe Acquah, Emmanuel Arhin, Samuel Asiedu Gyamfra, David Akakpo, Ebenezer Boateng, Joseph Kwaku Gyamfi, Fuseini Alhassan, Alhassan Asibi and Gabriel Dormate.
Twenty-two others are still in the custody of the National Intelligence Bureau (NIB), but could not be brought to court due to administrative challenges.
The accused persons were said to normally undertake their illegal mining activities in the Ashanti and Eastern regions.
“It was also established that the accused persons, as part of their unlawful activities, threatened, demanded and seized unspecified kilos of gold and huge sums of money from some small-scale miners (galamsey) in the name of National Security,” the facts said.
When the case came up yesterday, Mr Donkor urged the court to admit his clients to bail.
He argued that the prosecution had failed to comply with Section 192 (2) of Act 29, which stipulates that the case of possession of firearms without lawful excuse could only be initiated with the written consent of the A-G.
Counsel said for failing to meet the requirement under Section 192(2) of Act 29, the court should exercise its jurisdiction and grant his clients bail.
ASP Asare disagreed with counsel, and urged the court to reject the contention of the defence.
It was his submission that the case was still under investigations, and, therefore, the prosecution was in court to meet the 48-hour constitutional deadline for an accused person to be produced in court upon arrest.
He said the written consent from the A-G was not needed now as the prosecution had not started.
With regard to the bail, ASP Asare said the district court was a committal court in this matter because the charges levelled against the accused persons were first degree, which could only be tried by the High Court.
“The district court has, therefore, no jurisdiction to grant bail,” he said.
In a ruling, the magistrate held that so far as the charges had been filed against the accused persons, the jurisdiction of the court had been activated, and, therefore, prosecution had started.
She, therefore, held that all aspects of the law, including the written consent from the A-G, applied to the case.