Is the Special Prosecutor independent?- Emmanuel Wilson Jnr. writes

Except for the Attorney General or someone designated by the AG to do so, no one else has the ability to begin criminal proceedings on behalf of the state for the purposes of this constitutional
clause.

In all legal procedures involving the enforcement of the law and the assertion or defence of public rights, the Attorney-General also serves as the public’s advocate. The Attorney-General is nonetheless required by the Constitution to prosecute public officials who may have committed any type of criminal offence.

It is significant to remember that, in accordance with Article 88(1), the Attorney-General serves as both the government’s primary legal counsel and a minister of state. That being said, it begs the question of whether the Attorney-General, whose appointment is required by the Constitution, would be motivated to bring legal action against certain prominent public figures.

2. The OSP
Now that the Ghanaian constitution of 1992 has established the Attorney-General’s authority, we
need to take a closer look at the Act that created the Office of Special Prosecutor.
The Office of Special Prosecutor Act, 2017, Act 959, created the Office of the Special Prosecutor. The Special Prosecutor is tasked with looking into and prosecuting certain cases of alleged or suspected corruption and acts related to corruption, as per the Special Prosecutor Act (Act 959). (See Act 959, Sec. 2(a)).

This clause raises a few important issues that need clarification:
• Who determines the specific cases to be investigated and prosecuted by the Special
Prosecutor?
• What are the criteria for determining the cases that qualify to be investigated and
prosecuted by the Special Prosecutor?

It is clear that the types of suspected corruption or acts related to corruption that the Special Prosecutor can look into and prosecute are limited.

Concerning this clause in relation to Act 959’s section 3(c), which states that: “the Special Prosecutor will look into and prosecute cases of alleged or suspected corruption and offences related to it involving public officials, politically exposed individuals, and private sector participants in the commission of the offence under any other applicable law”, will the Special Prosecutor be acting in conflict with the Attorney-General in terms of Article 88(3) of the Constitution?

The Public Procurement Act, 2003 (Act 663) and the Criminal Offences Act, 1960 (Act 29) both require the Special Prosecutor to prosecute cases of alleged or suspected corruption and
corruption-related offences; however, section 3(1)(a)(b) renders this list non-exhaustive by allowing him to prosecute under any other applicable law.

This is an important point to note. This implies that the issue of who gets to decide on the limitation with regard to the “Specific cases” is still open.

“a person”

Act 959’s Section 4 declares that the Office is not subject to the direction or control of “a person” or authority when carrying out its duties, unless otherwise stated in the Constitution.
The Office of the Special Prosecutor is obviously not under the authority of “a person.”

This indicates that someone or some authority has the ability to direct or govern the Office. The
term “a person” is used to denote that the Office is accountable to an authority or to someone
else.

We have to contrast the 1992 Constitution’s provisions regarding the Electoral Commission’s independence. According to Article 46, the Electoral Commission shall not be subject to the direction or control of “any person” or authority when carrying out its duties, unless otherwise specified in this Constitution or in any other law that does not conflict with it.

The law makes it clear in this article that the Electoral Commission is totally independent
and cannot be controlled by any person or authority. However, the law refers to “a person” or “an
authority” in relation to the special prosecutor, implying that there is an unidentified person or
authority that it is subject to.

      Section 4(2) of Act 959, which states that, subject to clause (3) of Article 88 of the Constitution, the Office shall be authorised by the Attorney-General for the purposes of this Act to initiate and conduct the prosecution of corruption and corruption-related offences, is crucial to understanding the provision in section 4(1) with a great deal of certainty. Without the Attorney-General’s consent, the special prosecutor is not permitted to begin or carry out the prosecution of any corruption or offences related to corruption for the purposes of this section.

This makes it clear that the Attorney-General has jurisdiction over the Office of the Special Prosecutor. This is the rationale for the Act’s drafters’ choice of “a person” in the Special Prosecutor’s case rather than “any person,” as specified by the Constitution in the matters of the
Electoral Commission.

According to section 4(2) of Act 959, the Attorney-General oversees the Office of the Special Prosecutor, and it functions within his jurisdiction. This makes it impossible for the Special Prosecutor to carry out the mission for which it was created on their own.

The law that established the Office of the Special Prosecutor did not grant complete independence, but the primary goal of the office’s founding was to impartially look into and prosecute cases involving corruption in order to safeguard the public coffers.

Act 959’s creators obviously intended for the Office of Special Prosecutor to report to the Attorney-General and the Minister of Justice. Then, how can a Special Prosecutor operating
under the Attorney-General’s jurisdiction, bring legal action against certain powerful public
figures and members of his party who violate the law if the Attorney-General is unable to do so due to political considerations and other issues?

It is a well-known legal truth that the Special Prosecutor cannot take any action without the Attorney-General’s approval.

     3. Concluding Remark
The aforementioned analysis makes it clear that the nation’s constitution governs the independence of the Office of the Special Prosecutor or public prosecution. Certain nations, such as Kenya, Uganda, and the Republic of Ireland, have constitutions that explicitly separate the
prosecution of criminal cases from the office of the Attorney-General, and allow for the establishment of the public prosecution office through statute.

However, several nations’ Constitutions place the office of public prosecution within the Attorney-General’s office, giving the Attorney-General supervision over the office’s operations.
Among these nations are Ghana, Australia, Singapore, and Rwanda.

Article 88(4) of Ghana’s 1992 constitution states that the only individual authorised to prosecute
on behalf of the state is the Attorney-General. Sections 2, 3, and 4 of the Office of the Special
Prosecutor Act 2017 (Act 959), upheld this legal stance and placed the OSP under the Attorney-General’s supervision.

       Only by amending Article 88(4) to separate the prosecution’s powers, as in the case of Kenya, can the office of the Special Prosecutor become independent? We now have to be aware that the Special Prosecutor is not as independent as the average person believes him to be because the law creating the Office prohibits the Special Prosecutor from initiating or carrying out any prosecution without the Attorney-General’s consent.

Source: citinewsroom.com