I'm forced to question the supposed independence of the Special Prosecutor considering the current state of the bill being considered by Parliament, especially when the Special Prosecutor is expected to act on the order/authority of the Attorney General instead of being truly independent. It looks intent is not in sound match with reality.
The New Patriotic Party (NPP) promised in Chapter 12 of its 2016 manifesto to establish, by an Act of Parliament a Special Prosecutor’s Office to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing.
To achieve formal independence of the Special Prosecutor, there is the need to amend the 1992 constitution of Ghana to cause a separation of the Office of the Attorney-General (A-G) from that of the Minister of Justice, a position held by Dr Nduom and the PPP’s in the establishment of its proposed independent prosecutor.
The Minister of Justice then becomes the president’s (government’s) legal advisor who continues to be a members of cabinet and the Attorney General (Independent or Special Prosecutor), the defender of the people and the public purse and his term of office likened to an Appeals Court Judge (not a member of cabinet).
How do we expect the Special Prosecutor to be independent when he/she is to act on the orders of the Attorney General? It is important to note that, the Attorney General who is a member of the cabinet is appointed by the president and can be fired at any time. The president, therefore, exerts great influence on him/her and will or is therefore not likely to prosecute certain public officials at the silent orders of the president especially when is it in their interest not to do so. By extension, the special prosecutor cannot escape such manipulations, considering the current state of the bill.
Even though the hurdle at Article 88 (3) and (4) of the 1992 Constitution (reserved prosecutorial powers of the AG) among others looks a daunting task and makes asserting formal independence of the special prosecutor impossible, such a constitutional amendment will take care of that since the separation will make the Minister of Justice to only become the president’s lawyer.
It is important to know that fighting corruption is not an NPP matter, but an issue of national concern. There is, therefore, the need for government to also consider a statutory financial allocation to such an office to avoid financial suffocation which can compromise the independence of mind we seek from such an office.
I therefore, encourage the President and Parliament’s Constitution and Legal Affairs Committee to reflect on Dr Papa Kwesi Nduom and the PPP’s proposed procedure for the establishment of an Independent Prosecutor’s Office for a clue.