Amidu kicks against Parliamentary approval of Special Prosecutor

Former Attorney General, Martin A.B. Amidu, has explained that whoever is appointed by the President, Nana Addo Dankwa Akufo-Addo, as the Special Public Prosecutor, will not need parliamentary approval.

He said “the Constitution has clearly delineated the type of public officers who shall be appointed by the President with the approval of Parliament. Public officers in the category of the Special Prosecutor do not fall under that category and it is unconstitutional for Parliament to partake in the unitary and exclusive appointment powers of the President.”

Mr. Amidu, an anti-corruption campaigner and a legal luminary, made the assertions in a 25-page paper, critiquing aspects of the Office of the Special Prosecutor Bill 2017, which deals with the provision establishing the Office of the Special Prosecutor itself and the administrative provisions.

He, however, noted that “the Office of the Special Prosecutor Bill, 2017 laid in Parliament on 18th July, 2017 which was later withdrawn and laid for the second time on 2nd August, 2017, does not disclose the Article of the Constitution pursuant to which the Office of the Special Prosecutor is being established.”

“Somehow, Clause 20 of the Office of the Special Prosecutor Bill, 2017 still recites Article 195 as the pursuant authority for the President to “appoint other staff of the Office that are necessary for the proper and effective performance of the functions of the Office.”

“But the only other article of the Constitution that empowers the President to appoint public officers to assist him in the execution of his functions pursuant to Article 58 thereof is Article 70(1) (e) which allows the President acting in consultation with the Council of State to appoint: “(e) the holders of such other offices as any be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

He added that, “The Office of the Special Prosecutor is therefore being created by statute as part of the public services under Articles 191 (d) and 195, or under Article 70(1) (e) of the 1992 Constitution. Parliament cannot consequently and in accordance with the separation of powers enshrined in the structure, design, scheme and letter of the Constitution by legislation purport to share in the unitary executive power of appointment committed to the President under the Constitution. Accordingly, the provision that the President should nominate the Special Prosecutor for the approval of Parliament clearly violates the structural separation of powers enshrined in the letter and spirit of the Constitution and is accordingly void.”

“I believe that this explains why the legislative draft person did not violate the Constitution by making provision for the nomination of the Special Prosecutor for approval by Parliament for appointment by the President in the first draft Bill presented to the Stakeholders’ Meeting supra,” Mr. Amidu noted.

The former Attorney-General also said: “the pegging of the qualification of a person to be appointed Special Public Prosecutor to at least 15 years standing at the bar, and equating that person’s equivalent position to that of a Justice of the Court of Appeal is a disincentive to more qualified persons whom the President may wish to consider for appointment to that office. There will be many over qualified lawyers who would decline the President’s offer simply because they are more senior in qualification to that of a Justice of the Court of Appeal.”

Mr. Amidu has also questioned a clause in the Bill that seeks to limit the Special Prosecutor to specific crimes, and has asked the president to ensure that that is corrected if the office is to achieve any meaningful result in the fight against corruption.

“The attempt to distinguish 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 that certain types of corruption offences are not serious for prosecution or at least to be prosecuted by the Special Prosecutor. Fourth, the question may be asked, who will be responsible for investigating and prosecuting categories of corruption offences by the same public officers and politically exposed persons not meeting the standards in Clause 3 (4), or are they then immune from prosecution for such corruption offences?” The citizen vigilante is generally unhappy with the consultative processes leading up to the laying of the Bill among other things.

The Office of the Special Prosecutor Bill, 2017, was laid in Parliament on 18th July, 2017 but was later withdrawn and laid again for the second time on 2nd August 2017, before Parliament went on recess.