-Special Prosecutor’s Bill
…As Agalga Deflates Govt’s Arguments
The government’s agitation for the Special Prosecutor’s Bill to pursue possible politically-motivated prosecution of alleged corruption is dead wrong on the law, as the understanding of Ms Gloria Akuffo, the Attorney General, of the law, is the same as that of the minority in parliament.
The government, in a hurry to introduce the Special Prosecutor’s Bill, under the certificate of urgency, was deflated by the minority caucus in parliament, who cited constitutional infringement and duplication of duty rather than delegation of authority.
It all started when the minority, led by its leader, Hon. Haruna Iddrisu, pointed to a constitutional violation and cited Article 106 to buttress their argument, stating, among other things, that the bill had not been gazetted when it was first laid and copies had also not been made available for their perusal.
Hon. Dr. Dominic Ayine, a former deputy Attorney General and Minister of Justice and MP for Bolgatanga East, objected to the fact that it was a breach of Article 106(1) which provides that, the power of parliament to make laws shall be exercised by bills passed by parliament and assented to by the President.”
Clause (2), stated that, “No bill, other than such a bill, as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced in parliament unless, (a) it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction; and(b) it has been published in the Gazette at least fourteen days before the date of its introduction in Parliament.”
This provision of the Constitution, the minority argued, has grossly been disrespected by the government, and parliament must not entertain the Special Prosecutor’s Bill until it is properly gazetted and published.
The majority, on the other hand, were of the opinion that the bill was “of necessity and urgency” and must be laid under Article 106 (13).
Article 106 (13) states that, “Where it is determined by a committee of Parliament appointed for the purpose that a particular bill is of an urgent nature, the provisions of the preceding clauses of this article, other than clause (1) and paragraph (a) of clause (2) shall not apply, and, accordingly, the President shall give his assent to the bill on its presentation for assent.”
Following the debate as to whether the bill should be treated under a certificate of urgency or not, the Speaker of Parliament, Professor Aaron Mike Oquaye, directed the Legal and Constitutional Affairs Committee of Parliamentary to determine the urgency or otherwise of the Bill, in accordance with the 1992 Constitution and the Standing Orders of the House.
The committee, after deliberation, reported that it came to the “determination that more time would be needed to allow for broader stakeholder consultation before passage.
“The committee, therefore, recommends to the House to adopt this report and to pass the Office of the Special Prosecutor Bill, 2017 through the usual legislative procedure and not in accordance with Article 106 (13) of the Constitution.”
Mr. Ben Abdallah, the chairman of the committee and MP for Offinso South, told the plenary that: “Going through the memorandum and the body of the Bill itself, we realised that the Bill carries a lot of weighty issues that need to be discussed and, therefore, needs a broader stakeholder consultation and this cannot be done within a short period of time.
He added: “It was, therefore, the considered opinion and view of the committee that in view of the reasons mentioned above, this bill cannot be treated under a certificate of urgency.”
The committee, the chairman said, noted also that the bill was of a sensitive nature and had generated public interest.
He further “However, the Attorney-General’s Office is overburdened in the discharge of its duties and, therefore, the need to carve out some of its investigative and prosecutorial duties to the proposed Office of the Special Prosecutor.”
“The committee does not see any vacuum created by the absence of the Office of a Special Prosecutor to warrant the Bill to be treated as urgent,” Mr. Abdallah said.
Interestedly, a letter sighted by The Republic indicated that the Attorney General, Gloria Akuffo, is in agreement with the minority position on the Office of the Special Prosecutor Bill and that the government has decided to lay the bill after the 14 days’ period for gazetting it has elapsed.
The letter further indicated that, the office of the Attorney General having seized with the issues raised by the minority under Article 106 (1) and (2), the government will soon forward the bill back to parliament after meeting the mandatory law requirement.
However, sharing his opinion on the matter, Hon. James Agalga, MP for Builsa North and former Deputy Minister for the Interior, said the Special Prosecutor’s Bill sought to defeat the purpose of Article 88 of the 1992, which states: “(1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government.”
He added that, Clause (2, 3, 4, 5 and 6) of Article 88 is very explicit on the duty of the state prosecutor and cautioned that the continued pursuit of the bill despite several issues raised would amount to a violation of the constitution.
Article 88 of the 1992 Constitution reads, “The Attorney-General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President, or imposed on him by this Constitution or any other law.(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.”
Clause (4), reads,”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.
In addition, Clause (5) and (6) also reads, “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. The Attorney-General shall have audience in all courts in Ghana.”
President Nana Addo Dankwa Akufo-Addo, during the electioneering campaign in 2016, announced that, “an Akufo-Addo-led government would create an office of a special public prosecutor to prosecute public sector corruption.”
Mr. Agalga argued that supervising the Special Prosecutor is a central part of the Attorney General’s job and that special prosecutors are never independent of the state prosecution team, because independent prosecutors are not absolutely independent as they take orders and prosecute under instruction.
In his view, the Special Prosecutor’s role is driven by politics and not law, adding that “there was no doubt that the Special Prosecutor would be serving at the pleasure of the President, and so President Akufo-Addo has undisputed legal authority to fire the Attorney General who would also have the power to fire the Special Prosecutor.”
He wondered how the Special Prosecutor is going to work independently from the Attorney General, who would have the supervisory role and by far be answerable to the President’s interest and pleasure, stating that, “independent prosecutors do not exist anymore in some countries because they were unconstitutional.”
Nevertheless, the former Deputy Minister for the Interior said, under the circumstances, it would be in the public interest to know what the bill seeks to do when it comes to law.
He insists the government or president cannot allocate and distribute powers entrenched in the Constitution to individuals or offices they so choose, not even to the Special Prosecutor.
Hon. Agalga argued forcefully the Attorney General’s Department derives its powers directly from the Constitution and no one can purport to take that power away and give to another office.
Previous prosecutions of public officers by incumbent governments have been greeted with allegations of witch-hunting.
President Akufo-Addo is hoping the creation of the Office of the Special Prosecutor will take away the perception or reality of partisanship in the area of public prosecution.
Source:Therepublicnewsonline.com/Felix Engsalige Nyaaba