Special Prosecutor, Kissi Agyebeng
The Special Prosecutor has no mandate under Articles 14(1)(g) and 2, and 18 (1) and (2) of the 1992 Constitution, and the combined effect of Section 69(1) of the Office of the Special Prosecutor Act, 2017 (Act 959) and Regulation 20 of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374) to bring a charge in a court of law against a suspect under investigation who has not been formally cautioned as a suspect, and later charged with one of the eleven (11) specified corruption or corruption-related offenses as defined under Section 79 thereof for failure to comply with a notice for declaration of property and income under Regulation 20 (1) and (2) of L.I. 2374. Cecilia Abena Dapaah is the Special Prosecutor, of Kissi Agyebeng’s fifth victim.
A demand for such an intrusive declaration made by the Special Prosecutor during investigations governed by Regulations 5 to 10 and before a charging decision is made pursuant to Regulation 11 of L.I. 2374 will be an unlawful demand for purposes of Section 69 of Act 959.
The unlawful demand will also be inconsistent with the fundamental rights and freedoms to personal liberty guaranteed under Article 14(1)(g) and 2, to respect for human dignity under Article 15(1) and (2), the protection of privacy of home and ownership of property under Article 18, and to a fair trial with the concomitant right to the presumption of innocence and against self-incrimination under Article 19 of the 1992 Constitution.
On 10 February 2023, at 12:20 in the afternoon, the Special Prosecutor (exercising delegated authority from the Attorney-General under Article 88 (3) and (4) of the 1992 Constitution) filed in the High Court (Criminal Division), Accra, charges against four (4) public officers and citizens in Court Case No.
CR/0174/2023, the Republic v 1. Issah Seidu, 2. James Leck Osei, 3. John Abban, and 4. Peter Archibold Hyde for failure to comply with his unlawful demand to submit a declaration of property and income.
The Special Prosecutor took the unlawful action to make the demand for declaration of property and income with the full knowledge that Issah Seidu, the 1st and main accused person on the Charge Sheet was the importer in the subject matter of the charge who had sued the Ghana Revenue Authority (Customs Division), Alex Takyi, a businessman, and others in the High Court, Accra, for a declaration of ownership of over 10 containers of rice believed to have been imported from Vietnam which Alex Takyi claimed was from Thailand.
Mr. Alex Takyi, a former Customs Officer, is reputed to be a bosom friend of Kissi Agyebeng long before he was appointed the Special Prosecutor and in whose interest the Special Prosecutor allegedly intervened in an otherwise purely civil matter.
The identical charges brought against the four (4) accused persons in the Republic v 1. Issah Seidu, 2. James Leck Osei, 3. John Abban, and 4. Peter Archibold Hyde disclosed as follows:
“STATEMENT OF OFFENCE
Failing to comply with a lawful demand of an authorized officer of the Office of the Special Prosecutor in the performance of his functions, contrary to section 69(1)(a) of the Office of the Special Prosecutor Act, 2017 (Act 959) and regulation 20(2) of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2373).”
The particulars of the offense are identical, except for the names and ages of the accused persons. The Special Prosecutor stated the particulars of the offence as:
PARTICULARS OF OFFENCE
………., ….years in Accra in the Greater Accra Region and within the jurisdiction of this Court, being a suspect under investigation in respect of corruption and corruption-related offenses regarding the importation from Thailand and auction processes of two hundred and fifty (250) metric tons of Lele rice, without lawful excuse, failed, within thirty (30) days, to comply with a notice to declare your property and income served on you by the Special Prosecutor, circa December 2022, under regulation 20(1) per Forms 11A and 11B of the First Schedule of the office of the Special Prosecutor (operations) Regulations, 2018 (L. I. 374), as specified in Form 12 of the First Schedule of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374).”
It is important and fundamental for the reader to note immediately that the Charge Sheet filed by the Special Prosecutor against each of the four (4) accused persons was defective on its face because there is no offense known as “corruption and corruption-related offenses regarding the importation from Thailand and auction processes of two hundred and fifty (250) metric tons of Lele rice” in respect of which the Special Prosecutor has jurisdiction to investigate under Sections 2, 3, and 79 of Act 959 spelling out the eleven (11) distinct offenses for which the OSP has authority to investigate and to prosecute.
Based on the absence of being suspected of a specified corruption or corruption-related offense as defined in Section 79 of Act 959 as indicated on the charges proffered against the accused persons, the Special Prosecutor could not have lawfully made any demand upon any of the accused persons under Section 69(1) of Act 959 and Regulation 20(2) of L.I. 2374 as alleged in the charges filed in the High Court on 10 February 2023.
The case of the fifth (5th) victim of the Special Prosecutor’s unlawful demand in similar circumstances was filed on 6 October 2023, in the High Court (Criminal Division) Accra, Case No. CR/0006/2024 in the Republic v Cecilia Abena Dapaah for the same offense with similar particulars of offense.
The only difference between the former and the latter Charge Sheets is the names and ages of the accused persons, the dates the alleged offenses were allegedly committed, and the description of the non-existing corruption or corruption-related offenses the Special Prosecutor’s victims were alleged to have committed.
The corruption or corruption-related offense for which Cecilia Abena Dapaah was alleged to have been under investigation was particularized in the particulars of offense as: “…being a suspect under investigation for corruption and corruption-related offenses including using public office for profit in respect of suspected tainted large cash sums reportedly stolen from your residential premises and retrieved from same by the Office of the Special Prosecutor,….”.
Any intelligent layperson who puts the particulars of the offense contained in Cecilia Abena Dapaah’s charge sheet alongside the ruling of the High Court (Financial and Economic Crime Division 2) dated 31 August 2023 in the case of the Special Prosecutor v Cecilia Abena Dapaah will not fail to discover the unlawful shifting of the goal post in the charge sheet as the Special Prosecutor, an officer of the court, had told the High Court at the hearing of the application on the subject matter of the ruling that:
“…. the Respondent is being investigated for corruption and corruption-related offenses under section 239 of Act 29” and the court anchored its ruling and decisions on this as the offense the suspect was under investigation for at the OSP. Using public office for profit referred to in the particulars of offence on the charge sheet filed on 6 October 2023 is an offence under Section 179C of Act 29 and not Section 239 of Act 29.
What is obvious from the Charge Sheets and the charges proffered against the five victims of the Special Prosecutor’s unlawful conduct is that none of the five persons became a statutory suspect under Article 14(1)(g) and 2 of the 1992 Constitution who had been cautioned for any specified corruption or corruption-related offense to activate any of the powers of the OSP under Act 959.
Be that as it may, the charges the Special Prosecutor brought against the first four (4) victims in the Issah Seidu & 3 Others case on 10 February 2023, and the latter case against Cecilia Abena Dapaah on 6 October 2023 raised a further fundamental and jurisdictional issue as to whether the Special Prosecutor has the authority to skip the elaborate provisions made in Regulations 5 to 10 and Regulation 11 under the heading:
“Investigation” and “Prosecution” respectively to make a demand on a suspect charged under Regulation 20(1) and (2) of L.I. 2374 which is reserved to be operationalized only after a person has been formally charged with one of the eleven (11) or so specified corruption or corruption-related offenses defined in Section 79 of Act 959.
This issue is important because under Regulation 8 of L. I. 2374 dealings with “Investigations”, it is specifically provided that the Special Prosecutor “may profile a suspect and shall file a report in accordance with Form 8 of the First Schedule as a part of the docket”.
The demand for profiling involves a demand for a declaration of particular details about the suspect contained in Form 8 of the First Schedule of Regulation 8 of L. I 2374 which is clearly provided for as follows:
Profiling of suspect
(1) An authorized officer conducting an investigation into an alleged corruption or corruption-related offense may profile a suspect and shall file a report in accordance with Form 1 of the First Schedule as a part of the docket.
(2) The authorized officer shall
(a) record the personal antecedents of the suspect, including information
about the relatives of the suspects;
(b) take a fingerprint of the suspect electronically or manually; take a photograph of the suspect;
(d) record the business dealings of the suspect; and
(e) record bank accounts of the suspect.”
An examination of Regulation 8 of L. I 2374 leaves nobody in doubt that it is intended to authorize the Special Prosecutor to demand non-intrusive particulars of the suspect at this stage of the “Investigation” which is devoted to gathering facts and evidence to enable the Special Prosecutor to decide whether or not to prosecute under Regulation 11 thereof.
The lawmaker carefully crafted Regulation 8 of L.I. 2374 to prevent the Special Prosecutor from engaging in fishing for evidence during investigations and unlawfully trampling upon and intruding on the fundamental rights and freedoms of the suspect to respect for human dignity under Article 15(1) and (2), the protection of privacy of home and ownership of property under Article 18, and to a fair trial with the concomitant rights to the presumption of innocence and against self-incrimination under article 19 of the 1992 Constitution.
Parliament provided in L.I. 2374 in Regulation 7, particularly sub-regulation (3), that an investigative panel shall report on a matter it has investigated and make recommendations to the Special Prosecutor. It is after the submission of the investigation recommendations that under the heading “Prosecution”, Regulation 11 states that:
The Special Prosecutor or an authorized officer shall upon considering the facts and evidence gathered from an investigation, take a decision whether or not to prosecute.” The decision to prosecute is the same as what other jurisdictions such as the United Kingdom now call a pre-charge decision.
A suspect does not become a person charged with an offence until and after a pre-charging decision has been made to prosecute him after which the suspect is formally cautioned and charged with a specified offence.
The provisions of L.I. 2374 deal with the subject matter of “Investigation” and “Prosecution” under distinct headings. It is under the heading “Prosecution” that one finds the sub-heading “Search, Seizure, Freezing and Confiscation” covering Regulations 12 to 21. It is under the sub-heading “Search, Seizure, Freezing and Confiscation” that the legislature located Regulation 20 and made provision for the declaration of property and income as follows:
Declaration of property and income
Schedule, request a suspect to make a declaration of the property and income of the suspect as specified in Form 11B of the First Schedule.
(2) A suspect who has been served with a notice under sub-regulation (1) shall make the declaration as specified in Form 12 of the First Schedule within thirty days after receipt of the notice.”
FORM 11B (regulation 20 (1) Declaration of Property and Income form begins as follows:
“I…. having been charged with an offense, and having been duly notified by the Office to declare any property and income in accordance with the provisions of this Act, do hereby declare my property and income as follows:….” (Emphasis supplied).
The operative words in Form 11B are “I …. having been CHARGED” not having been cautioned or arrested, detained, bailed, or investigated for an offense. Form 11B (regulation 20 (1) demands a detailed and elaborate intrusive declaration of property and income on 14 items that no democratic constitution and any country governed under the rule of law will demand at the investigation stage of gathering facts and evidence to make a pre-charge decision.
(The capital letters are mine for emphasis). The simple reason is that no democratic constitution and a regime under the rule of law will allow any law enforcement agency at the investigation stage to fish for evidence by asking the suspect to provide details about his property and income that may incriminate him and obviate the presumption of innocence and the burden on the prosecution to prove his guilt beyond a reasonable doubt.
Consequently, any citizen upon whom the Special Prosecutor purports to give notice under regulation 20 of L.I. 2374 who has not been charged with any one of the eleven (11) specified corruption or corruption-related offenses would commit no offense under Section 69(1) of Act 959 for non-compliance because the demand pursuant to Regulation 20 of L. I. 2374 would have been made by the Special Prosecutor unlawfully.
The four (4) accused persons who were earlier unlawfully charged with failure to comply with a lawful demand pursuant to the alleged non-existing corruption or corruption-related offenses had to attend the High Court and spend fortunes to engage lawyers to defend themselves on those spurious charges which are not only unconstitutional but also ultra vires the mandate of the Special Prosecutor.
On or about 29 April 2023 the High Court discharged three (3) of the accused persons based on a nolle prosequi filed by the Special Prosecutor on 19 April 2023 to terminate the prosecution of three out of the four accused persons.
The case against the 1st accused person, Issah Seidu, the importer of the rice, which gave rise to the subject matter of the charge, was reported to have been adjourned to 11 May 2023. It was reported that the termination of the trial against the three accused persons was because they had each fully complied with the unlawful demand of the OSP. The substantive case against them was said to be still under investigation.
The three (3) discharged accused persons and Issah Seidu had to continue expending energy and resources to defend themselves in the pending investigation for as long as it pleases the Special Prosecutor with no future expectation of being ever charged for court for any specified corruption offense.
The original 1st accused person in the case, Issah Seidu, further continued to expend energy and resources to defend himself from the spurious amended charge filed against him until 10 October 2023 when the High Court discharged him for want of prosecution by the Special Prosecutor who had abandoned the case by consistently refusing or failing to attend the trial any time the case was called for hearing.
It is pertinent and crucial to emphasize that none of the four accused persons who were charged with failure to declare property and income had ever been charged by the Special Prosecutor and put before a court of law for any of the eleven (11) specified corruption or corruption-related offenses pursuant to Section 79 of Act 959 to date.
The arbitrary and capricious exercise of power by the Special Prosecution is demonstrated by the reported fact that the 1st accused, Issah Seidu had sued the Ghana Revenue Authority (GRA), Customs Division, one Alex Takyi, a businessman, and others in the High Court, Accra, for declaration of ownership over 10 containers of rice believed to have been imported from Vietnam, which the businessman claimed was from Thailand.
Mr. Alex Takyi, the alleged businessman is reported to be a bosom friend of the Special Prosecutor, Kissi Agyebeng, for which reason the 1st accused person, Issah Seidu, and the other four discharged accused persons had been unlawfully arrested and detained without having been charged with any one of the specified corruption or corruption-related offenses under section 79 of Act 959 in an attempt to compel Issah Seidu to abandon his suit in the High Court.
Issah Seidu’s action against the GRA is still pending in the High Court for determination after the Court had ordered the sale of the rice and the proceeds paid into court pending the disposal of the case.
It should be obvious by now that the only reason the Special Prosecutor abused the authority vested in him under the 1992 Constitution and Act 959 and charged the accused persons in Court Case No. CR/0174/2023, Republic v 1. Issah Seidu, 2. James Leck Osei, 3. John Abban, and 4. Peter Archibold Hyde was to unlawfully compel each of the suspects under investigation who had not been charged with any specified corruption offense to provide intrusive information to the Special Prosecutor in violation of their fundamental rights and freedoms guaranteed under the Constitution and Act 959.
This reasoning is justified by the fact that when the suspects provided the unlawfully demanded declaration, a nolle prosequi was entered discharging them from the alleged commission of the offense. If indeed an offense had been committed by their refusal to make the declarations within thirty (30) days, their subsequent submission to the demand does not in law pardon the committed offense to warrant the entry of a nolle prosequi.
But the Special Prosecutor knew that he was abusing his authority to compel their submission to an unlawful demand for which he could not successfully prosecute them on the trumped-up charges.
The foregoing examination and analysis of the unlawful conduct of the Special Prosecutor, Kissi Agyebeng in the case of Republic v 1. Issah Seidu, 2. James Leck Osei, 3. John Abban, and 4. Peter Archibold Hyde underscores the seriousness of the horrendous and frightening unlawful rampaging conduct of the Special Prosecutor against the fifth and latest victim of his capricious abuse of Regulation 20 of L.I 2374 in the Republic v Cecilia Abena Dapaah which he filed on 6 October 2023.
The context within which the Special Prosecutor filed the charge against Cecilia Abena Dapaah is important for an understanding of the unconstitutional and unlawful nature of Kissi Agyebeng, the Special Prosecutor’s conduct.
The Special Prosecutor purported to have arrested Cecilia Abena Dapaah on 23 July 2023 without informing her of the specified corruption or corruption-related offense she was reasonably suspected to have committed.
A purported formal investigation statement on caution was taken from her upon her arrest and detention by the Special Prosecutor. This investigation statement on caution never disclosed the specified corruption or corruption-related offense pursuant to Section 79 of Act 959 for which she was purportedly arrested as enjoined by Article 14(1)(g) and 2 of the 1992 Constitution.
On 28 July 2023, the Special Prosecutor took a further written caution statement from Cecilia Abena Dapaah which also contrary to the preceding constitutional injunctions never disclosed the specified corruption or corruption-related offence pursuant to Section 79 of Act 959 for which she was purportedly cautioned for the second time. These two written caution statements were accordingly null, void, and without effect whatsoever under the constitution and laws of Ghana.
But the Special Prosecutor acting upon the foregoing unconstitutional and unlawful arrest and detention of Cecilia Abena Dapaah on 23 July 2023 and without a warrant from a court law purported to have searched the matrimonial homes of Cecilia Abena Dapaah and her spouse and confiscated sums of money therefrom. Based on the same unconstitutional conduct the Special Prosecutor proceeded to freeze the bank accounts of Cecilia Abena Dapaah.
On 8 August 2023 the Special Prosecutor amidst funfair and media publicity filed an application in the High Court (Financial and Economic Crime Division 2), Accra for an order(s) for the confirmation of his administrative seizure of the money resulting from the warrantless search and seizure, and for confirmation of the freezing of her bank accounts.
During the hearing of the Special Prosecutor’s confirmation application, he submitted to the High Court that “…. the Respondent is being investigated for corruption and corruption-related offenses under section 239 of Act 29”.
On 31 August 2023, the High Court refused to grant the order for the confirmation application filed by the Special Prosecutor and ordered the return of the money unlawfully seized from the matrimonial home of Cecilia Abena Dapaah and her spouse within seven days to her.
The High Court determined conclusively that Cecilia Abena Dapaah’s arrest and detention, and the search of her premises without a warrant from a court of law were palpably unlawful.
On 4 September 2023, the Special Prosecutor invited Cecilia Abena Dapaah to his office the next day, 5 September 2023. Upon arriving at the OSP the Special Prosecutor purported to return the money ordered by the High Court on 31 August 2023 to her at 2:30 pm.
Within minutes and while she was still on the premises of the OSP she was invited and informed of her arrest and of the seizure and freezing of the same assets that had just been returned to her ostensibly on the orders of the court.
She then was served with fresh notices of seizure and freezing of those assets. In the interim, the Special Prosecutor had previously prepared and issued a public notice or statement on his website at 10:45 am on 5 September 2023 of the purported release and reseizure of the money even before the factual purported obedience to the order(s) of the High Court dated 31 August 2023.
The Special Prosecutor failed or refused to take a statutory or constitutional statement on caution from Cecilia Abena Dapaah on 5 September 2023 before or after seizing and freezing her assets to indicate that she was statutorily a suspect under arrest, restriction, or detention.
On 11 September 2023, the Special Prosecutor filed in the High Court an application for the seizure and freezing of the property or assets of Cecilia Abena Dapaah. The hearing of this new application by the Special Prosecutor was fixed to the long date of 18 October 2023.
On 6 September 2023, the Special Prosecutor sought to take a statutory statement on caution from Cecilia Abena Dapaah. The lawyers of Cecilia Abena Dapaah wisely and smartly advised her and she invoked her constitutional right to remain silent and the privilege against self-incrimination as her assets had been seized and frozen without a prior formal arrest and administration of the constitutional caution statement after arrest.
On 5 October 2023, Cecilia Abena Dapaah filed an affidavit in opposition to the Special Prosecutor’s application for confirmation order(s) of freezing and seizure of her property.
Cecilia Abena Dapaah’s lawyers were diligent enough to expose in paragraph 21 of the affidavit in opposition, the incompetence of the Special Prosecutor through his own Exhibits OSP4 and OSP5 attached to his application for freezing and seizure filed on 11 September 2023 which showed that no statement on caution was taken from her for the commission of any corruption or corruption-related offense known to Act 959 on 24 July 2023 and 28 July 2023 respectively.
This contention in paragraph 21 of her affidavit in opposition confirmed the finding in the ruling of the High Court dated 31 August 2023 that she had not been cautioned for any corruption or corruption-related offense known to Section 79 of Act 959.
By invoking her constitutional right to silence on 6 September 2023 when the Special Prosecutor sought to take a caution statement from her belatedly she foreclosed and pre-empted the Special Prosecutor’s ability to intimidate her and violate her right to respect her personal dignity, and the presumption of innocence that would have enabled him to exhibit a belated cautioned statement in any future criminal process against her in court.
In what is pertinently an immature, incompetent, inexperienced, and vengeful reaction to Cecilia Abena Dapaah’s assertion of her right to silence and the content of her affidavit in opposition to the Special Prosecutor’s application filed on 11 September 2023 for orders confirming the freezing and seizure of the same properties ordered by the court to be returned to her, the Special Prosecutor on 10 October 2023 amidst another funfair and media frenzy purported to have filed in the High Court (Criminal Division), Accra, a one-count charge sheet against Cecilia Abena Dapaah in the Republic v Cecilia Abena Dapaah in which the statement of offense is the word for word the same as the charge in Issah Seidu & 3 Others already quoted hereinbefore. I have also already quoted and discussed the relevant portions of the particulars of the offense in the Cecilia Abena Dapaah charge sheet and shown their unlawfulness.
The Special Prosecutor, Kissi Agyebeng, knew or ought to have known that he had never in law cautioned or taken a caution statement from Cecilia Abena Dapaah for any specified corruption or corruption-related offense known under Section 79 of Act 959. Mr. Kissi Agyebeng, also knew or ought to have known that the two purported caution statements his office took from Cecilia Abena Dapaah on 24 July 2023 and 28 July 2023 violated Section 79 of Act 959 by not specifying any known corruption or corruption-related offense (s) she was suspected of committing. Accordingly, the two caution statements are taken from Cecilia Dapaah
on 24 July 2023 and 28 July 2023, his Exhibits OSP 4 and OSP 5, were null, void, and of no effect whatsoever for violating not only Section 79 defining the offenses for which the OSP has jurisdiction to investigate any reasonably suspected person but also Article 14(1)(g) and 2 of the 1992 Constitution.
Kissi Agyebeng, nonetheless, considered himself a person of integrity and honour to write for public consumption in the statement of fact accompanying the charge sheet that:
“The accused was, until 22 July 2023, the Minister for Sanitation and Water Resources. She is a suspect under investigation by the Office of the Special Prosecutor for corruption and corruption-related offenses including using public office for profit in respect of suspected tainted large cash sums reportedly stolen from her residential premises and also retrieved from same by the Office of the Special Prosecutor.”
The ruling of the High Court dated 31 August 2023 dismissing the Special Prosecutor’s application for confirmation orders states unambiguously that the Special Prosecutor, an officer of the court, told the High Court that Cecilia Abena Dapaah was under investigation for violation of Section 239 of Act 29 which is a corruption offense under Section 79 of Act 959.
The words of the Court were: “In this application, counsel for the Applicant submitted that the Respondent is being investigated for corruption and corruption-related offenses under section 239 of Act 29.” As stated already, using public office for profit referred to in the particulars of offense on the charge sheet filed on 6 October 2023 is an offense under Section 179C of Act 29 and not Section 239 of Act 29.
In charging Cecilia Dapaah for failure to make a declaration of property and income before the High Court the OSP this time shifts the goal post by saying that the offenses include “using the office for profit in respect of suspected tainted large cash sums reportedly stolen from her residential premises and also retrieved from same by the Office of the Special Prosecutor.” Unfortunately, there is no offense known to Section 79 of Act 959 as “using the office for profit in respect of suspected tainted large cash sums reportedly stolen from her residential premises and also retrieved from same by the Office of the Special Prosecutor.”
The particulars provided on the Charge Sheet filed by the Special Prosecutor against Cecilia Abena Dapaah leave no doubt in any reasonable person’s mind that the OSP has not completed the investigation stage of his functions to enable him to move on to deciding under Regulation 11 of L.I. 2374 whether or not to prosecute her for any of the eleven (11) specified corruption or corruption-related offenses defined under Section 79 of Act 959.
The authority vested in the Special Prosecutor in the investigation stage is to take a statement from Cecilia Abena Dapaah after cautioning her for the suspected commission of one or more of the eleven (11) offenses defined under Section 79 of Act 959 and thereby trigger his
authority to eventually profile her as such a suspect.
The design, scheme, structure, letter, and spirit of L. I. 2374 make it unlawful for the Special Prosecutor without formally charging a suspect after a pre-charge decision to prosecute for a specified corruption or corruption-related offense to intrude upon the suspect’s personal liberty, human dignity and privacy, and demand that he or she makes a declaration of property
and income on pain of being charged with an offense under section 69 of Act 959 and regulation 20 of L.I. 2374.
For the avoidance of any doubt in the mind of the reader, Section 69 states that:
Section 69. (1) A person who
(a) Fails to comply with a lawful demand of an authorized officer in the performance of functions under this Act;
Commits an offense and is liable on summary conviction to a fine of not less than five hundred penalty units and not more than one thousand penalty units or to a term of imprisonment of not less than two years and not more than four years or to both.” (Emphasis supplied).
This discourse has already demonstrated beyond any reasonable doubt that Kissi Agyebeng’s Exhibits OSP 4 and OSP 5 which he attached to his application filed in the High Court (Financial Division), Accra on 11 September 2023 and which is pending for confirmation of seizure and order of freezing of suspected tainted property are null and void ab initio for absolute and abject failure to disclose any suspected offence known to Section 79 of Act 959 against Cecilia Dapaah in any pending investigation against her under Regulations 5 to 10 of L. I. 2374 dealing with investigations.
Cecilia Abena Dapaah and the four (4) previous victims of the unlawful conduct of the Special Prosecutor could not therefore have refused or failed to comply with any lawful demand from the Special Prosecutor under Section 69(1) of Act 959 and Regulation 20 for 11B as stated on the particulars of offence of the Charge Sheet proffered against them on 10 February 2023 and on 10 October 2023 respectively in the High Court.
I have stated hereinbefore that in the design, scheme, structure, letter, and spirit of Act 959 and L.I. 2374, the Special Prosecutor acts unlawfully when without completing an investigation and determining whether or not to charge a suspect for prosecution and in fact formally charges the suspect with a specified corruption offense he purports to make any demand on any suspect to make the declaration of property and income provided in Regulations 20(1) and (2) of L.I. 2374.
The foregoing contention is consistent with the letter and spirit of Form 11B (regulation 20(1) of L. I 2374, the fundamental right to personal liberty guaranteed under Article 14(1)(g) and 2, the right to respect for human dignity under Article 15(1) and (2), the protection of privacy of home and ownership of property under Article 18, and the right to a fair trial with the concomitant rights to the presumption of innocence and against self-incrimination under Article 19 of the 1992 Constitution.
The lawyers of Cecilia Dapaah may hopefully apply to the High Court to set aside the charges against her for lack of adequate particulars of any offense known to Act 959 and also on grounds of ambiguity. The lawyers would be vindicating the 1992 Constitution if they raised in the application challenging the charge against her, the constitutionality of the invocation of Regulation 20 of L.I. 2374 at the pre-charging stage of the investigation on the grounds stated already in this discourse.
If I had been Cecilia Abena Dapaah’s lawyer when I was an active lawyer in practice, I would have advised her, immediately upon her being served with the Charge Sheet to consider exercising her constitutional right as a citizen under Article 2 of the Constitution to seek interpretation and enforcement of Section 69(1) of Act 959 and Regulation 20 of L.I. 2374 and Articles 14(1)(g) and 2, 15(1) and (2), 18, and 19 of the 1992 Constitution based on the charges unlawfully proffered against her by the Special Prosecutor.
I will also have considered the alternative of raising the constitutional objections at the arraignment of Cecilia Abena Dapaah for her plea taking for the court to refer the issue for constitutional interpretation to the Supreme Court.
I would have considered taking those steps in the interest of defending the 1992 Constitution so that every future suspect knows in advance the authority of the Special Prosecutor under the provisions of Act 959 and L.I. 2374 in order to avoid future abuse of power against innocent citizens.
The remit of the Special Prosecutor’s powers in the exercise of such wide and unbridled administrative discretion to fish for evidence against suspects and accused persons under penalty of incarceration for non-compliance under Section 69(1) of Act 959 and Regulation 20 of L.I. 2374 would be resolved once and for all in such a constitutional action by the Supreme Court.
An interpretation of Article 296(c) will be called into play as to the existence or non-existence of the publication of a constitutional or statutory instrument for the exercise of the Special Prosecutor’s unbridled discretionary authority under Act 959 as Special Prosecutor is not a judge or a judicial officer.
The silence of Constitutional defence activists and human rights lawyers in glossing over the unconstitutional, arbitrary, and capricious exercise of power not vested in the Special Prosecutor under the 1992 Constitution and Act 959 since the assumption of office of Mr. William Kissi Agyebeng is deafening as Cecilia Abena Dapaah becomes the fifth citizen to fall prey to the arbitrary and capricious conduct and action of the Special Prosecutor in charging suspects under investigation for failure to comply with his unlawful demands for declaration of property and income.
I can understand the silence and passivity of civil society organizations, particularly the so called anti-corruption NGOs who rely on funds from foreign governments and foreign anti corruption non-profit organizations, and who must sustain the flow of funds to their local budgets by whipping up in the media any unproven allegation of suspected corruption to ensure that their salaries continue to be paid by their foreign masters.
Genuine crusading constitutional defence activists and human right lawyers cannot afford to be on the payroll of anybody or to be agents of foreign governments. The only fidelity must be to the Constitution of Ghana.
I am looking up to the younger generation of such neutral and committed constitutional activists with fidelity only to the Constitution of Ghana to speak up against unconstitutional and unlawful conduct no matter whose ox is gored to enable me to enjoy a quiet retirement. In the interim, I will continue my constitutional advocacy against any form of injustice and abuse of power under the 1992 Constitution even if the heavens fall.
Martin A. B. K. Amidu
17 October 2023
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