The Special Prosecutor, a New ‘God’ In Town?

On Thursday 11^th January 2018, news broke of the proposed appointment of Mr. Martin Alamisi Burnes Kaiser Amidu as Special Prosecutor¹. Mr. Amidu once served as the Deputy Attorney General in the PNDC military government and also as the Attorney-General and Minister for Justice from January 2011 to January 2012 under the John Evans Atta-Mills led government.

His appointment was in fulfilment of a campaign promise made by the then-presidential candidate and flag bearer of the New Patriotic Party, Nana Addo Dankwa Akufo-Addo who is currently the President of the Republic of Ghana. The appointment of Mr. Martin Amidu was described by H.E. Nana Addo Dankwa Akufo-Addo as “the discharge of one of the most important functions of my Presidency”.

His appointment was largely welcomed by people from all walks of life and held to be a step in the right direction if the President was indeed serious in his campaign to fight corruption. This acclamation from the public stemmed from Mr. Amidu’s contributions to the fight against corruption which earned him the enviable nickname ‘citizen vigilante’. To many, Mr. Amidu is the best man for the job.

Justice Jones Dotse, a Justice of the Supreme Court of Ghana, had this to say about Mr. Amidu in the case of Amidu v. Attorney-General, Waterville & Woyome, “The role of the Plaintiff, a distinguished former Attorney-General of this country needs to be highly commended as was done in the lead judgment… It is really sad, that during the conduct of this case, not a single civil society group or lawyers came to the assistance of the plaintiff… The plaintiff, in my opinion, must be highly commended for his vigilante role in protecting the wanton dissipation of the public purse”².

The court also, in the same case, had this to say about Mr. Martin Amidu: “The Plaintiff is to be commended for his public spiritedness which has fuelled his meticulous and industrious presentation of this case.”

Although Mr. Amidu fits the bill as Ghana’s Special Prosecutor, I cannot help but wonder if he alone can perform this task.

WHO IS A PROSECUTOR?

Black’s Law Dictionary defines a Prosecutor as “a legal officer who represents the state or federal government in criminal proceedings”. It further defines a Special Prosecutor as “a lawyer appointed to investigate and, if justified, seek indictments in a particular case”³.The Concise Oxford English Dictionary also defines a Prosecutor as “a person, especially a public official, who prosecutes someone”⁴.

As defined by Wiktionary (an online English dictionary), “a Prosecutor is a person, as a complainant, victim, or chief witness, who institutes a prosecution in a criminal proceeding”⁵.

In essence, a Special Prosecutor is a person (usually a lawyer) appointed to investigate and possibly prosecute offences which in their nature requires an impartial person who is not perceived to be in a conflict of interest situation to prosecute. There is often the need for such an office to be created because of issues of conflict of interest surrounding our public offices.

In Ghana, Article 88 of the 1992 constitution establishes the office of the Attorney-General. However, because the Attorney-General is appointed by the President, the argument that such a person is already in a conflict of interest situation arises; since it will be difficult to investigate and prosecute his/her own colleagues in government.

A way around such conflict of interest situation is the creation of the Office of the Special Prosecutor. Though per the Office of the Special Prosecutor Act, 2017 (Act 959), the Special Prosecutor is expected to be appointed by the President of the Republic (Sections 13(3) and (4)), the prosecutor’s security of tenure is guaranteed.

Security of tenure can be said to exist in that office because of the provision of Section 13(5) which equates the office to that of a Justice of the Court of Appeal for a non-renewable term of seven (7) years. This means that the Special Prosecutor once appointed into office has seven (7) solid years to drive the fear of God into public officials (to borrow the words of the President of the Republic of Ghana).

Also, the removal of the Special Prosecutor is no child’s play. Per Section 15 of Act 959, one would have to go through steps which are akin to the removal of a Justice of a Superior Court of Ghana to remove a Special Prosecutor from office.

WHO IS RESPONSIBLE FOR PROSECUTION IN GHANA?

The 1992 Constitution of Ghana, Article 88(3) states that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.”

Article 88(5) of the 1992 Constitution also states that “The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State, and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

From the provisions stated above, it is safe to conclude that the principal person mandated to commence and/or institute prosecutions for and on behalf of the Republic of Ghana is the Attorney-General. However, because this task is somewhat herculean (in my opinion), there are other State institutions which carry out prosecutions for and on behalf of the State.

The Ghana Police Service, for example, carries out criminal prosecutions for and on behalf of the State and their authority is derived from an executive fiat from the Office of the Attorney-General to the Police Service. This mandates the Ghana Police Service to prosecute certain offences, usually second-degree felonies, misdemeanours, and other crimes as prescribed by the executive fiat.

The Commission on Human Rights and Administrative Justice (CHRAJ) is equally clothed with authority to prosecute certain offences and is not limited only to Human Rights violation cases. The proactiveness of CHRAJ suffered a blow when the Supreme Court held that CHRAJ could only commence investigations when a complaint had been made to the commission by an identifiable individual or corporate body.⁶ In other words, CHRAJ is powerless if it does not receive complaint(s) from an individual or corporate body.

Economic and Organised Crime Office (EOCO) is yet another body which can undertake some functions of the Attorney-General. EOCO was set up by Act 804 in 2010 and the purpose of the Act is to establish an Economic and Organised Crime Office as a specialized agency to monitor and investigate economic and organized crime and on the authority of the Attorney-General prosecute the offences to recover the proceeds of crime and provide for related matters.⁷ The purpose and functions of EOCO (as espoused in Section 2 of Act 804) permits me to conclude that there are enough institutions and bodies to combat crime and other related offences which plunge Ghana’s resources into gallows.

WHY THE OFFICE OF THE SPECIAL PROSECUTOR?

The Office of the Special Prosecutor, I must admit, is not new (though new to Ghana). In the United States of America, this office has existed since 1875 with the appointment of John B. Henderson as the first Special Prosecutor.In a country which is ranked 70 out of 179 countries in terms of perceived world’s corruption index by Transparency International⁸, one of the surest ways to tackle this negative reputation is through the establishment of an independent, non-partisan office to deal with the menace.

The current Government made up of the New Patriotic Party (NPP) in the majority, during the campaign period promised to set up the Office of the Special Prosecutor in its bid to fight corruption.

It is worth noting that, the Progressive People’s Party (PPP), as well as other political parties, also made campaign promises to separate the Office of the Attorney-General from the Office of the Minister of Justice, basically for the Office of the Attorney-General to be independent enough to prosecute corruption and corruption related cases.

The Office of the Special Prosecutor Act, 2017 (Act 959) set up the Office of Special Prosecutor. The purpose of Act 959 is to establish the Office of the Special Prosecutor as a specialized agency to investigate specific cases of alleged or suspected corruption and corruption-related offences involving public officers and politically exposed persons in the performance of their functions as well as persons in the private sector involved in the commission of alleged or suspected corruption and corruption-related offences, prosecute these offences on the authority of the Attorney-General and provide for related matters.

It is noticed from the purpose of the Act that the Special Prosecutor is not independent from the Attorney-General. One may ask, why set up such an office which is obviously dependent on the Office of the Attorney-General?

CONCLUDING REMARKS

The 1992 Constitution of Ghana empowers only the Attorney-General to carry out prosecution of offences for and on behalf of the State. This means all other persons or bodies are subject to the authority of the Attorney-General when it has to do with prosecutions. In addition, the Attorney-General has at her disposal, the powers of Nolle Prosequi and Withdrawal as provided in Sections 54 and 59 respectively of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). To this extent, the Attorney-General may choose to “manipulate” or “control” the operations of the Special Prosecutor.

The magic question then is, IS THE OFFICE OF THE SPECIAL PROSECUTOR NECESSARY? Whatever your response to the questions above may be, there is certainly a new ‘GOD’ in town in the person of Mr. Martin Alamisi Burnes Kaiser Amidu. BEWARE!!!

1. Daily Graphic, Edition No. 20579, pp 3.
2. Amidu v. A-G, Waterville & Woyome [2013-2014] 1 SCGLR 112.
3. Blacks Law Dictionary, 8^th
4. Concise Oxford English Dictionary, Thumb Index Edition.
5. http://wiktionary.org.
6. The Republic v. The Fast Track High Court – Accra, Ex-Parte Chraj; Hon. Dr. Richard Anane – Interested Party.[2007-2008] SCGLR 213
7. Economic and Organised Crime Act, 2010 (Act 804).
8. https://www.transparency.org/news/feature/corruption_perceptions_index_2016?gclid=EAIaIQobChMI1_q6hreE2QIVxbDtCh0arwBXEAAYAiAAEgIDnfD_BwE#table