The promise by President-elect Akufo-Addo to create a Special Prosecutor, as should be expected, has generated much controversy. Political interference with criminal prosecutions is not new to Ghana. Military governments seized power with the promise of ending corruption and proceeded to clean the corruption of previous governments by creating new institutions and appointing the key players to that end. The war against corruption has also been a campaign promise of presidential candidates and incumbent presidents. Usually, in realizing these promises governments are usually criticized as being selective because their own members are not prosecuted. Whilst many have discussed the usefulness and propriety of the creation of a special prosecutor, few have discussed its legality. This article will attempt to discuss solely the constitutional issues that arise and make some recommendations.
BACKGROUND
The NPP manifesto, at page 39 provides that the NPP will “establish, by an Act of Parliament, an Office of the Special Prosecutor, who will be independent of the Executive, to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act and cases implicating political officeholders and politicians.”.
President-elect Akufo-Addo explained further in a BBC interview that the rationale was to rid the fight against corruption of politics and to avoid screams of witch hunting. It is noteworthy that President-elect Akufo-Addo himself had been in charge of prosecution as Attorney-General from 2001-2003.
CONSTITUTIONALITY OF THE OFFICE OF THE SPECIAL PROSECUTOR.
The issues of constitutionality that arise are: Will the Act of Parliament be an Act to amend the constitution or an ordinary Act of Parliament? Can an ordinary Act of Parliament confer the power to investigate and prosecute cases of corruption?
An Act of Parliament inconsistent with the Constitution is void pursuant to article 1(2) of the 1992 Constitution (hereinafter referred to as the Constitution). If the creation of the Special Prosecutor will be by constitutional amendment, pursuant to article 289 of the Constitution the only relevant consideration is that the constitution has been complied with in the amendment process. According to article 291(3) of the Constitution where the amendment is not affecting a provision that is “entrenched”, two-thirds of all MPs (184 MPs) must vote for the amendment. On the other hand, where there is an amendment of an entrenched provision, article 290(4) of the Constitution requires a minimum voter turnout of 40% and acceptance by 75% of those who voted. Where an ordinary Act of Parliament is used in creating the Special Prosecutor, it is likely that it will be declared unconstitutional because the exclusive authority to investigate corruption and prosecute people for corruption is given to the Commission on Human Rights and Administrative Justice (CHRAJ) and the Attorney-General respectively.
Article 218(a) and (e) of the Constitution makes CHRAJ the body with the jurisdiction to investigate corruption. The Supreme Court per Brobbey JSC decided in the case of Samuel Okudzeto Ablakwa v Attorney-General and Jake Obetsebi Lamptey that CHRAJ had the exclusive authority to deal with conflict of interest situations as the Constitution gave that power CHRAJ only. Parliament recently followed this decision where Speaker Adjaho dismissed a motion to investigate the President Mahama for conflict of interest. Thus, the Special Prosecutor cannot perform the function of investigating corruption as the Constitution gives CHRAJ alone that power. Article 88(3) of the Constitution puts beyond doubt the exclusivity of the Attorney-General’s power to initiate and conduct prosecutions of criminal offences. As article 88(3) of the Constitution forms part of the entrenched provisions pursuant to article 290(1) of the Constitution, for there to be a Special Prosecutor a referendum will be necessary. It is doubtful, that an amendment of article 218(a) and (e) of the Constitution which makes CHRAJ the body with the jurisdiction to investigate corruption by two-thirds of all Members of Parliament will be necessary since a higher threshold will be satisfied.
RECOMMENDATIONS
It is suggested that CHRAJ should be empowered to perform its constitutional duty to investigate corruption in order to prevent the multiplicity of jobs to the taxpayer’s detriment. Also, Attorney-General, in line with article 284 of the Constitution, must not have any involvement in prosecutions where there is a conflict of interest. The Attorney-General should be required by law to give reasons for refusal to prosecute cases, especially when recommended by CHRAJ, Commissions of Enquiry, or Parliament. The Attorney-General should consider delegating some of his prosecutorial powers to CHRAJ. Parliament may also consider, in line with article 17 of the Constitution, making the establishment of a violation of the rights to equality under the law, and freedom from discrimination a defence to crimes. In order to protect individuals from witch-hunting by prosecutors.
Join GhanaStar.com to receive daily email alerts of breaking news in Ghana. GhanaStar.com is your source for all Ghana News. Get the latest Ghana news, breaking news, sports, politics, entertainment and more about Ghana, Africa and beyond.