Independent Prosecutor Can Cause Serious Havoc

A former deputy Interior minister has urged President Akufo-Addo to tread cautiously in creating an office of Independent Prosecutor because it can become an uncontrollable monster.

James Agalga, during a debate on the President’s State of the Nation Address, told Parliament the US experiment with the office of an Independent prosecutor showed some shortcomings which Ghana must learn from.

The creation of the office of Independent Prosecutor is part of the armoury of measures which President Akufo-Addo believes will help fight corruption, seen to be lacklustre due to political interference.

Explaining the rationale behind the move, Akufo-Addo told the BBC in January 2017, the office will be tasked with political crimefighting within government.

“We have decided that we want to take the politics out of [the fight against corruption], so that the screams of witch-hunting and others will not arise, by establishing an office of a special prosecutor or somebody who will be independent of the executive and whose remit will be to investigate and tackle issues of corruption.

“Hopefully, that person is going to be somebody who is going to command the respect of the society, and at the same time has an independent mind to make the decisions,” he said.

There is huge public interest in this campaign promise and the seven-week-old government is expected to initiate the enactment of a legislation to create the office.

But touching on the subject in parliament, James Agalga said while he supports the move, it can cause ‘havoc to the authority of the executive’ if the prosecutor is overzealous and unaccountable.

He referred to warnings contained in a judgement delivered by US Supreme Court judge Antonin Scalia in 1988 when the constitutionality of the law creating the office was challenged.

Scalia was worried that an “overzealous, unaccountable” independent counsel could pick his or her targets, and then prosecute them for even the most minor or technical offences.

Scalia was concerned that the appointed IP would weaken the authority of an elected Presidency, and expose the head of the executive branch to “debilitating criminal investigations”.

His main argument is that the separation of powers into three arms of government could be disrupted by the creation of an Independent Prosecutor.

This is because the office reduces the power of the President exercised through the Attorney-General and hence violates the Constitution.

History has tested the two separate views in the 7 – 1 ruling on the US case and analyst have lined up to largely endorse Scalia’s views.

President Bill Clinton who once described the law authorising the IP as a “foundation stone for the trust between the Government and our citizens” later found his government under seven separate investigations by mid-1998.

Twenty years after the independent counsel law was first passed in 1978, Congress declined to re-authorise the law after it expired on June 30, 1999.

Many say Scalia’s views proved prophetic.

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