What’s special about the Special Prosecutor?

This week, some lawyers from various countries in Africa including Zimbabwe have been at the Labadi Beach Hotel brainstorming the role of lawyers in improving the economies of the continent. The International Bar Association African Regional Forum Conference was opened by President Akufo Addo got my attention when Attorney-General Gloria Akuffo read his speech and noted that “[w]ords can no longer defeat the canker of corruption. Concrete actions must.”

To him, this is what his dream Office of Special Prosecutor (OSP) birthed in Parliament on Tuesday, November 14, 2017, represents. A special feature of the OSP according to the President is that it “...will work independently of the Executive, and will have the responsibility to investigate and prosecute acts of corruption, free from predictable claims of witch-hunting.” In 2004, the World Bank estimated that over one billion dollars is paid in bribes around the world each year. It said this enriches the corrupt at the expense of generations, and that an act of corruption each contributes to global poverty, obstructs development and drives away investment. So everything must be done to retrieve stolen monies and punish all those involved in “the misuse of entrusted power for private gain” – that’s the UN’s new all-embracing definition of corruption.

The OSP has its weaknesses, but My Take today is about what makes the Special Prosecutor special. There is no gainsaying its core job is to investigate and prosecute alleged corruption and corruption-related offences under the Public Procurement Act and Criminal Offences Act, and that it will not only deal with public officers but politically exposed persons and persons in the private sector implicated in those offences. Its officers will exercise police powers in their work. Here are three of the special features of the OSP and the Special Prosecutor (SP):

First, the President summaries what is most special about the OSP when he says it “...will work independently of the Executive...” because the law says it “is not subject to the direction or control of [any] person or authority in the performance of [its functions].” This is fortified by securing the tenure of the SP who must be a lawyer of at least twelve years standing, be of high moral character and proven integrity and posses the relevant expertise on corruption matters. He enjoys the same terms and conditions of service as a Justice of the Court of Appeal including especially that he cannot be removed at the whim of the President once appointed for a fixed non-renewable seven years. His deputy, who must have been a lawyer for ten years, also has seven years and enjoys conditions of service of a Justice of the High Court.

Secondly, the SP has power to freeze and get the court to assist him seize property suspected (tainted) with corruption for a period of two years when he has pressed charges against a suspect. But if the case is not over within two years that order will be renewed to avoid dissipation of the property during the trial. If he is investigating you but never charges you with any offence, the property will be released to you. If it is perishable, it will be sold and the money kept until the case is determined. So in the end, the property is either confiscated or released.

The purpose is obviously strategic, there is no opportunity to conceal or divest your ownership of or interest in the stolen assets or assets acquired by corrupt means. No one should benefit from the proceeds of his crime! It is exciting to know that the OSP is under obligation of law to publish, quarterly, in two major national newspapers and on its website the list of cases and convictions secured. Let’s name and shame all those selfish nation-wrecking grand thieves in suits.

Thirdly, this is the first time the expression “plea bargaining” appears in Ghanaian law and reasons for accepting or rejecting same have been provided. We made room for it as far back as 1993 but refused to call it plea bargaining. We preferred “offer of compensation and restitution” and never really promoted it. Now this exercise may no longer be done in open court because “the information shall be provided confidentially to the Special Prosecutor and the Court.”

Many are angered learning that the bigger thieves can be made to simply return their plunder, pay some compensation especially by way of interest on the stolen amount and left to go. What is easily ignored in this debate, however, is the fact that the accused must first plead guilty to the offence and that he/she is convicted except that he/she doesn’t get to go jail. It must be worth something that the state recovers what is stolen plus more while the thieve lives with the record of the conviction for the rest of his/her life.

Like what we call Consent Judgment in civil matters, he/she is left without any hope of ever having this conviction erased or overturned because he can’t appeal against it. The President’s prerogative power of mercy (pardon) should never be exercisable in such matters. Again, among others, the SP may not accept the offer of plea bargain unless the accused shows a “willingness to cooperate in the investigation or prosecution of other persons.” This does also avoid the related undue delay of trials. Of course, one must always bear in mind that the SP’s decision to accept an offer of plea bargain may also be influenced by his consideration of his chances of securing a conviction if the case were to proceed to trial – the bird in hand dilemma.

I pray the OSP would be and would do exactly what the law says about it. But it is time to redefine corruption in our laws and adopt and even elevate the sanctions approach of the never-used-before 1979 Government Contracts (Protection) law whose violation attracts a refund of up to three times the value of the contract sum plus a possible jail term of up to ten years.