Understanding the route and terminus irrationality of Kissi Agyebeng

Common Law and Constitutional Jurisprudence principles mandate administrative bodies and officials to exercise their powers lawfully, fairly, and reasonably. Since the Six Carpenter’s Case in 1885, it has been recognized at common law that courts have inherent jurisdiction to investigate allegations of abuse and excesses of statutory power, as well as the power to intervene to prevent

such abuse.

It is also well-established that when statutory power is vested in a public body, those powers cannot be used to advance any collateral purpose. Thus, an abuse of statutory powers is considered to show an intention from the outset to commit an unlawful act under the guise of a lawful office, as seen in the Mayor and Corporation of Westminster v London and North-Western Railway Co.

In terms of our Constitutional jurisprudence, these common law principles have been consolidated into substantive law via the operation of Articles 11, 23, and 296 of the 1992 Constitution. Article 296 imposes a continuing duty on public officials with discretionary powers that impact individuals’ rights to publish a statutory instrument outlining the principles, manner, and mode of exercising the conferred discretionary power.

This was highlighted in the concurring opinion of Mr. Justice William Atuguba, acting CJ, in Ransford France v The Electoral Commission and Attorney-General. Article 23 also binds administrative bodies and officials to the requirements of law, fairness, and reasonableness. The combined operation of Articles 23 and 296 thus forms the basis for Judicial Review in Ghana.

Judicial review and irrationality:

The statutory instrument made under Article 296 concerning the operation of the Office of Special Prosecutor Act is LI2374. By implication, a breach of LI 2374 violates both Articles 23 and 296 of the 1992 Constitution and can ground an Application for Judicial Review.

A common ground for Judicial Review is ‘unreasonableness’ or ‘irrationality’. A decision is said to be irrational if it "defies logic or accepted moral standards to such an extent that no sensible person who had applied his mind to the question to be decided could have arrived at it", as stated in Civil Service Unions versus Minister for the Civil Service (‘GCHQ’). And on a claim for Judicial Review, it must be established that the decision was "so unreasonable that no reasonable authority could ever have come to it", as per Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

A decision is said to be route unreasonable if the decision-maker placed significance on an irrelevant consideration, there was no evidence to support an important step in the reasoning, or the reasoning involved a serious logical or methodological error, as per R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019], 1 WLR 1649, at para [98]. A decision might also become a route irrational or unreasonable because the decision-maker took into account irrelevant considerations, or conversely failed to take into account relevant considerations, as per Re Findlay [1985] AC 318.

A decision is said to be terminus irrational where "even though the right things have been taken into account the result is so outrageous that no reasonable decision-maker could have reached it", as per Braganza v BP Shipping Ltd [2015] UKSC 17. The considerations explored in a terminus irrationality decision are whether there is any ‘justification’ for the outcome, and in particular consideration of whether there is any justification for a negative impact or consequences resulting from the decision.

Analysis:

The Report by the OSP on Charles Adu-Boahene was both route and terminus irrational. By this, I am saying, that no reasonable or rational Special Prosecutor would have undertaken the steps Mr. Agyebeng took or arrived at the position he did.

The facts are that Mr. Adu Boahen was approached by individuals who were later revealed to be associates of investigative journalist Anas Aremeyaw Anas These individuals presented an illusion of wanting to invest in a bank in Ghana and discussed this and other business ideas with Mr. Adu Boahen. Importantly, they did not request Mr. Adu Boahen to use his influence to facilitate their plans. And Mr. Boahen did not make such a promise to them. The initial contact with the individuals resulted in Mr. Adu Boahen referring them to the appropriate quarters as confirmed by the OSP.

A subsequent meeting was then had with these so-called investors who asked Mr. Boahene to volunteer a percentage should the enterprise be successful.

The individuals then sought access to the Vice President, and Mr. Adu Boahen suggested a sum of $200,000 as an appearance fee to secure that access. The OSP’s report concluded that “Though the conduct of Mr. Adu Boahen amounts to trading in influence or influence peddling, which is closely associated with corruption, there is no actual criminal prohibition of his acts in respect of which the OSP has a mandate to further act”.

It was also a part of the facts however that the plan to entrap Charles Adu-Boahene was hatched before his confirmation by Parliament as Deputy Minister in June 2017. And that, the entrapment employed involved persuasion far than what would be legally permissible even for State Security Officers. The motives behind entrapping the Minister were therefore far from honourable and it was patently false for the OSP to claim that Anas was motivated by public interest to ‘try his luck’ on Adu-Boahene is patently false. But then I digress.

To better appreciate the sheer route and terminus irrationality of the OSP's decision, one must look at the LI 2374. Upon receiving a potential complaint, Regulation 5 mandates the Special Prosecutor to assess whether the complaint falls within their investigative mandate. However, this Regulation must be read in conjunction with Section 79 of the OSP Acts, which empowers the OSP to prosecute only 11 specific offences or offences related to the commission of any of those 11 specific offences.

The logical implication is that, before starting an investigation into any complaint, the OSP must be satisfied that the facts, on the face of it, show a reasonable suspicion of any of the 11 specified offences having been committed. Since such a determination is an administrative decision and is contingent on statutory benchmarks being met, the decision itself becomes subject to Judicial Review.

After this determination, the Special Prosecutor is then required to either file the complaint, with no action being taken, or conduct either a preliminary inquiry or investigation, or authorize a full investigation where the facts and circumstances "reasonably" indicate that an investigation may be conducted to prevent, solve, or prosecute any of the 11 specified offences.

If a full investigation is authorized, the OSP is required to establish an investigation panel tasked with building a complete investigation docket. Upon completion of the panel’s work, the law mandates that they submit a report to the OSP, based on which the OSP can decide whether to accept the recommendation, reject it, or modify the recommendations. The OSP can only decide to prosecute following the completion of the investigative panel’s work and upon consideration of all the facts and evidence gathered from them.

The drafters of the Act were mindful of the potential for abuse of power and therefore imposed benchmarks at every stage, from complaint to prosecution, making actions taken at each stage of the process subject to Judicial Review.

Based on the above facts and risks, a rational OSP would have been expected to begin his Regulation 5 analysis by answering the fundamental question of jurisdiction since the OSP can only prosecute the offences specified in his Act. Common sense alone would therefore have required the OSP to answer, at the start of his investigations, whether the facts prima facie laid a reasonable suspicion of any of the 11 specified offences being committed. That analysis, properly done, would have revealed to any reasonable Investigator, in the place of Kissi Agyebeng, that the facts do not engage any of the 11 offences under the OSP Act and would then have shown the OSP lacks jurisdiction to investigate the matter.

The OSP’s failure to understand this at the start of his investigation was occasioned by a failure or refusal to properly weigh and adhere to his obligations under Regulation 5. It was not merely incompetent but route irrational as no rational or reasonable Investigator/Prosecutor would have gone ahead with a full investigation after a proper Regulation 5 analysis of the complaint against the Minister.

To downplay his route irrationality, the OSP engaged in further irrationality by propping up his report with a totally irrelevant discussion on the merits or otherwise of sting operations which carried more than half of the entire investigative report. That discussion had no relevance to the Report because the OSP Act clearly mandates him to pursue investigations based on journalistic

work by investigative journalists. This needlessly distracting stunt therefore only exposed the OSP’s ignorance of his Enabling Law and further revealed a state of mind that rendered his subsequent findings biased and improper.

It is needless to point out the current OSP served as Counsel for Anas whose work has been found by a Court of competent jurisdiction to be criminal. The OSP therefore, in his route irrationality, sought to use the opportunity to whitewash Anas while unethically taking shots at a valid judgment of the Court. It was therefore not surprising that the conclusion reached by the OSP was also terminus irrational.

The conclusion reached by the OSP implicates Charles Adu Boahene in what the OSP describes as "influence peddling". However, the allegation made against Charles Adu-Boahene by Tiger Eye PI was that he had been recorded engaging in the commission of corruption and corruption-related offenses. That can be found in paragraph 3.3 of its report where the OSP restated the initial allegation against Mr Charles Adu-Boahene to be that he was audio and visual recording engaged in corruption and corruption-related offenses. The OSP Act details the 11 Offenses intended to be covered by the axiom "corruption and corruption-related offenses".

The law does not include any crime known as Influence Peddling and the OSP has absolutely no mandate in law to make findings that are outside his remit. The mandate of the Special Prosecutor that had been engaged was his investigative mandate. His task was to establish conclusively whether the facts prima facie establish the commission of any of the 11 offenses known to the OSP Act.

By the clear operation of common sense, any findings outside of this would therefore have been made ultra vires and would have been made more than jurisdiction rendering it terminus irrational.

Conclusion:

When we critique the Office of the Special Prosecutor (OSP), we're pointing to its frequent disregard for legal principles, its lack of understanding of its enabling law, and its careless indifference to the statutory checks designed to prevent it from becoming an unchecked force.

For those with even a modicum of foresight, the precedent being set by this OSP and his clique of friends and associates, operating from our taxpayer-funded public offices, will lead to a future where the Office of the Special Prosecutor lacks credibility and is merely a puppet squad, manipulated by political actors to pursue political enemies or by Anas Aremeyaw Anas to fulfill his desires. It is hoped that Mr. Charles Adu Boahene, in the interest of developing our shrinking human rights frontiers, prays the Court to exercise its duty to remedy this irrationality by Kissi Agyebeng.