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24 July 2017

The Office of Special Prosecutor Bill is constitutionally sound [Article]

There is this debate going on in the media about the Office of the Special Prosecutor Bill and I find it quite interesting that the argument being made suggests that the Attorney-General should have laid a constitutional instrument before Parliament instead of the Bill, which will eventually become an Act of Parliament. There is also the question of whether or not the Attorney-General can delegate her responsibility to initiate and conduct prosecution of criminal offences. And in response to this question, some lawyers have suggested that the delegation of this responsibility can only be done by a constitutional amendment.

First of all, I think it is important to visit Article 88, which creates the Office of the Attorney-General, who is a Minister of State and the principal legal adviser to the Government. Article 88(3) gives the Attorney-General the responsibility to initiate and conduct prosecution of criminal offences. The article states specifically that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

However, right after Article 88(3), the Constitution permits other persons to prosecute offences in the name of the Republic, provided that the Attorney-General authorises them to do so in accordance with law. The said Article 88(4) states as follows: “All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.” What this means is that any person who has been authorised by the Attorney-General in accordance with any law in Ghana can prosecute offences in the name of the Republic of Ghana. I think Article 88(4) answers the question of whether or not the Attorney-General can delegate the responsibility to initiate and prosecute criminal offences.

The laws of Ghana are set out in Article 11(1) of the Constitution, which provides as follows: “The laws of Ghana shall comprise (a) this Constitution; (b) enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; (d) the existing law; and (e) the common law.” The current state of the Office of Special Prosecutor Bill will fall under Article 11(1)(b) of the Constitution when it receives Presidential Assent. The argument propounded by some lawyers is that, the Office of the Special Prosecutor should be created under Article 11(1)(c). In other words, the Office of Special Prosecutor should be created by a constitutional instrument.

I disagree with that argument; simply because, whenever the Constitution gives a power pursuant to which a constitutional instrument may be made, it says so explicitly. For instance, in the case of the Electoral Commission, the Constitution states specifically at Article 51 that “The Electoral Commission shall by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

Again, in the case of the Rules of Court Committee, Article 157(2) states specifically that “The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.” And finally, in respect of the Auditor-General’s power to disallow and surcharge, Article 187(10) states that “The Rules of Court Committee may, by constitutional instrument, make Rules for Court for the purposes of clause (9) of this article.”

As far as Article 88 is concerned, the Attorney-General has not been given any power to make constitutional instruments. Instead, the Attorney-General may authorise another person to prosecute offences in the name of the Republic of Ghana in accordance with any law. The law pursuant to which the Attorney-General may authorise the Special Prosecutor to prosecute cases of corruption involving public officers and political office holders is the Office of the Special Prosecutor Bill, which when enacted will become an Act of Parliament. Indeed, the first paragraph of the Memorandum states as follows: “The purpose of the Bill is to establish the Office of the Special Prosecutor as a specialized agency to investigate specific cases of corruption involving public officers, and politically exposed person in the performance of their functions as well as individuals in the private sector implicated in the commission of corruption and prosecute these offences on the AUTHORITY of the Attorney-General.”

In my opinion, the Bill satisfies Article 88(4) of the Constitution and other provisions thereunder, and I do not see the constitutional quagmire that some lawyers and other social commentators are raising.

On another note, I think it is worth mentioning that the Office of the Special Prosecutor Bill is very clear in the appointment process of the Special Prosecutor. Firstly, the Bill is sponsored by the Attorney-General, who is authorising the Special Prosecutor to prosecute corruption cases in the name of the Republic of Ghana. Secondly, the Attorney-General nominates Special Prosecutor and then the President appoints the Special Prosecutor subject to a majority of all Members of Parliament (meaning at least 138 Members of Parliament) must approve the Attorney-General’s nomination before the President can appoint. I think that the involvement of Members of Parliament in the creating of the Office of the Special Prosecutor is so key to establishing its independence from the very beginning.

By: Kow Essuman

Kow Essuman is an international lawyer in every sense, who specializes in corporate and commercial litigation and arbitration. He is qualified to practise in three different jurisdictions – England and Wales, New York State and Ghana.

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