As the structure of the Bill for the Special Prosecutor’s Office (SPO) dangles question marks on the independence of the Special Prosecutor, who will be appointed by the Attorney General, many other inherent contradictions have conspired to expose President Akufo-Addo as a ‘master of confusion.’
The SPO, which will have a Board but has its appointee nominated by the AG, who is an appointee of the President, will have such an appointee enjoy only a seven- year security of tenure even though the SP will have the powers of an Appeal Court judge.
A more secure security of tenure for Appeal Court judges entails the fact that they serve till they are 65 years old. If the Special Prosecutor, who will go after suspected criminals will only, be secure for seven years, then people are wondering how he could really be independent.
The seven-year security of tenure virtually aligns the SP to a given President who, per the constitution, can rule for a maximum of eight years, it is pointed out.
It has long been wondered, the usefulness of the SPO when the AG, per Article 88 of the Constitution, is clothed with fullness of prosecutorial powers and has the Director of Public Prosecutions (DPP) and State Attorneys in all regions to delegate powers to.
The whole SPO idea has also raised questions about the future functionalities of investigative bodies, such as the Economic and Organized Crimes Office (EOCO), the Bureau of National Investigations (BNI), the Criminal Investigations Department (CID) and the Commission on Human Rights and Administrative Justice (CHRAJ), among others.
As the Bill proposes to have pending cases at the AG’s Department referred to the SPO, questions about jurisdictional clash have arisen. Observers point out a scenario where the SP might want to investigate a case but the AG refuses to hand it down to the SPO.
Again, there are questions about possible jurisdictional clash between the SPO and other bodies, such as the Social Security and National Insurance Trust (SSNIT) and the Ghana Revenue Authority (GRA) which are clothed with similar prosecutorial authority.
The power to declare “Nolle Prosequi” (discontinuation of a case) is originally vested in the Attorney General, in the constitutional wisdom that any decision to discontinue any prosecution should be made at the highest level of the prosecutorial machine of government.
The SPO Bill vests the power to issue Nolle Prosequi in the SPO, as well, raising questions as to whether the clothing of a different office, apart from the AG, with such powers as the AG, does not potentiate future power-plays between the AG and the SPO.
As the AG will be from the ruling political party in every regime, the question as to whether the AG’s power to nominate the SP, and then hand down cases, will not be selectively in favor of governing parties.
Already, a former Attorney General, Mr. Martin Amidu, has said that a clause in the bill which states that the Special Prosecutor must not investigate and prosecute corruption offences relating to the Public Procurement Act, 2003, and the Criminal Offences Act, 1960, undermines the essences of the creation of the office.
Mr. Amidu, who had been claiming that the loophole was the making of some regime actors who wanted to sabotage President Akufo-Addo, even though the Bill is from the President, points out that clauses 3 (3) and (4) of the Bill were included as an afterthought.
The clauses indicate that “…specified under paragraphs (a), (b) and (c) of subsection (1) unless the commission of the offence is in respect of a vast quantity of assets that (a) constitute a substantial proportion of the resources of the country; (b) threaten the political stability of the country; or (c) threaten the sustainable development of the country.”
For Martin Amidu, the specimen nature of corruption cases that the SPO can investigate suggests that the government accepts other kinds of corruption.
“First and foremost, sub-clause 4 of Clause 3 of the Bill before Parliament lays down vague and ambiguous exceptions for the purposes of determining which corruption offences will meet those standards for investigations, to begin with, in the first place.
“Secondly, the vagueness and ambiguity of the exceptions made, provides an argument to be overcome by the Special Prosecutor when the objection is raised in Court that his decision to prosecute a corruption offence does not meet the threshold standard stipulated in the Bill.
“Thirdly, the attempt to distinguish the types of corruption offences that may be investigated and prosecuted by the Special Prosecutor sends the clear message to Ghanaians that the President and his Government now accept certain types of corruption offences as not serious for prosecution, or at least to be prosecuted by the Special Prosecutor,” he noted in one of his epistles that are increasingly becoming rare with the advent of the Akufo-Addo government.
“How come the Bill that was submitted to the Stakeholders’ Meeting on 27-28th June 2017 did not contain this exception, but the exception found its way into the Bill after it apparently returned from the Cabinet to Parliament?” He quizzed.
According to Martin Alamisi Benz Rizk Amidu, aka Citizen Vigilante, the meeting of anti-corruption organizations and civil society did not include that clause to the Bill hence its appearance in the Bill before Parliament suggests somebody else inserted it to “pull a fast one on Ghanaians.”