The office of the special prosecutor - How independent? - Ace Ankomah writes

In the New Patriotic Party (NPP) Manifesto for Election 2016, Chapter 12, page 135, titled ‘Governance, Corruption and Public Accountability,’ the NPP proposed “to establish, by an Act of Parliament, an Office of the Special Prosecutor.”

This office is to “be independent of the Executive, to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing, including those involving alleged violations of the Public Procurement Act and cases implicating political officeholders and politicians.” This Manifesto pledge has come into sharp focus since the NPP assumed the reins of government. I have followed quite closely, the debate as to the constitutionality, workability or otherwise of this proposal. In this paper, I intend to review the relevant constitutional provisions and existing law on the subject.

The view that I will seek to advance is that ‘formal independence’ by way of a complete autonomy or separation from the Attorney-General (“AG”) would appear to be difficult to achieve under the provisions of the Constitution because the AG retains responsibility over all prosecutions. However, ‘substantial independence’ by way of impartiality and neutrality may yet be achieved through the firm political will, definite intention, and resolved commitment of/by the government to allow the office holder sufficient freedom, in fact, to carry out the mandate with little to no interference.

The Article 88 Hurdle

 The difficulty with attaining ‘formal independence’ starts when one considers Article 88(3) and (4) of the Constitution that “all prosecutions” are: (i) the responsibility of the AG, and (ii) commenced “in the name of the Republic,” but “at the suit of” the AG or persons the AG has duly authorised. The AG remains responsible for all prosecutions, and it would be difficult to assert ‘formal independence’ from an AG who remains in charge of and exercises authority over all prosecutions. However, prosecutions may be commenced (hence the use of the well-word term “at the suit of” or “ats”) not only by the AG but, importantly, also by persons the AG legally authorises to do so. Thus even within the overarching constitutional context and condition of the AG having ultimate responsibility for prosecutions, there is room for prosecutions to be commenced and conducted, not at the suit of the AG, but at the suit of other persons legally authorised by the AG to do so. It is, therefore, important to consider about four current legal provisions that relate to persons other than the AG who are currently authorised by law to conduct prosecutions and the scope of the exercise of the AG’s prosecutorial responsibility, and it is to these that I now turn.

Public Prosecutors

The first is section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which empowers the AG to issue Executive Instruments appointing two classes of persons as public prosecutors: (i) public officers, or (ii) lawyers. While the appointment of public officers as public prosecutors might be general, or for a specific class of crimes or area, the appointment of lawyers (and I presume that this applies only to lawyers in private practice) is restricted to “a particular criminal cause or matter.” The section also recognises the power of the AG to “give express directions in writing” to such persons. Thus although the AG could appoint a lawyer (and arguably the proposed Special Prosecutor) to conduct public prosecutions under this provision, there are two key drawbacks, namely (i) it cannot be a general appointment, but operate only on a case-by-case basis, and (ii) the AG retains the express power to issue written directions to such a person. These drawbacks could or would defeat the critical “independence” requirement. This will not work.

Law Officers

The second, relevant provision is section 1 of the Law Officers Act, 1974 (NRCD 279), which permits three categories of people to “perform any of the functions vested by an enactment in the Attorney-General.” These are: (i) State Attorneys (and ranks above that) of the AG’s Department, (ii) public prosecutors appointed under section 56 of Act 30, and (iii) “any other public officer if so authorised by the Attorney-General.” In this provision as well, the persons mentioned are made expressly “subject to the directions of the Attorney-General,” and those directions are even made confidential so that “evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to a matter.” A Special Prosecutor could be appointed under the third category mentioned above. But this also has two significant drawbacks, namely (i) the provision appears to anticipate that person being a public officer first, before being authorised by the AG to prosecute crime, and (ii) the express mention of directions by the AG could or would water down the critical “independence” quality that the proposed office would require. This will also not work.

 Political Control

Third, Article 297(a) of the Constitution gives to any person with the power to appoint another person to a public officer, the implied power “to exercise disciplinary control over persons holding or acting in any such office and to remove those persons from office.” Thus where the AG appoints prosecutors under the current legal regime, (s)he may purport to discipline them and even remove them from office. While this power may be necessary so that person so appointed does not “tear chain” (to use a normal parlance), it could or would become a source of political control over the activities of the appointee by the appointor, and raise questions about true independence.

Nolle Prosequi

Fourth, and supremely relevant, is the AG’s power of NOLLE PROSEQUI – the enormous, discretionary power to file a formal entry in criminal proceedings, declaring that the “proceedings shall not continue” on some of the counts or some of the accused persons, or altogether. In Ghana, this power to halt trials is specifically provided for by section 54 of Act 30, which adds that the AG may exercise this power “at any stage” of a criminal case. In Republic v. Abrokwah [1989-90] 1 GLR 385, Abakah J said at page 389 that “the expression ‘nolle prosequi’ means to be unwilling to prosecute. It is the State itself through the Attorney-General expressing unwillingness to prosecute the case.” His Lordship stated at page 387 of the report that “It is common knowledge that the power of the Attorney-General to enter a ‘nolle prosequi’ at any stage of a trial before judgment or verdict cannot be questioned upon any basis other than political.” He added, rather controversially, that “the point to appreciate is that whether the Attorney-General exercises this power after having had regard to the circumstances of a case or not or whether the Attorney-General exercises this power properly or improperly is not a matter for judicial inquiry or review. It is a matter for the political powers that be, for the act of the Attorney-General in this respect is supposed to be the act of the State itself.”

I use the words “rather controversially” because I do not believe that the power of NOLLE PROSEQUI can any longer be said not to be subject to judicial review under our current constitutional dispensation. This is because of the Article 296 standards that are imposed upon the exercise of all statutory or constitutional discretionary powers.

Surely, if an AG issues a NOLLE PROSEQUI in circumstances that breach the Article 296 standards (to wit., not fair, not candid or in breach of due process, or is arbitrary, capricious or biased) that exercise of discretion would be subject to judicial review under Article 295(8). Be that as it may, the power of the AG to literally jump into a prosecution and halt it could and would be a major fetter to the ability of the proposed Special Prosecutor to operate independently under the current legal regime.

‘Formal’ versus ‘Substantial’ Independence

It is for the above reasons that, absent a formal constitutional amendment, a new statutory regime may be required to achieve what is contained in the NPP Manifesto. The key question should be “how truly independent could or would this prosecutor be?’ At this time, under Article 88(3), the occupant of that office would remain accountable and answerable to the AG, at least on paper.

The Constitution does not appear to me to anticipate a prosecutorial office with ‘formal independence,’ i.e. being inherently, completely autonomous, separate from and unconnected with the AG. The AG retains the ultimate responsibility for prosecutions, which responsibility would apply, arguably to a Special Prosecutor appointed under any statute.

The Constitution does not appear to anticipate or permit full autonomy of criminal prosecutions from the Executive, yet. However, I believe that ‘substantial independence’ involving the office and appointed person being impartial, neutral or unbiased is possible and constitutional. It is even perfectly within the power of the AG to scale back on the power to issue directions to the office or person. This would be a political position supported by Article 297(b), which provides that conferred powers (such as the power conferred under Article 88(3) and (4)) may be exercised “from time to time, as occasion requires.” Thus it is within the power of the AG, to decide that (s)he will not exercise (or would sparingly exercise) any overbearing, direct or even day-to-day control over the work of the prosecutor unless there is sufficient reason, cause or justification. I even believe that the AG could provide the circumstances under which any form of control would be exercised over the proposed office.

It is, therefore, my respectful view that we miss the point if we focus only on the ‘formal independence’ hurdle without considering the ‘substantial independence’ leeway and flexibility that could make this proposal workable. CONCLUSION To conclude, my respectful position is that although the desired and desirable complete independence may not be automatic under the current provisions of the Constitution, what we require now is the strong political will that allows the office holder sufficient liberty to work with little to no political or other interference.

The office should function with sufficient latitude to operate and prosecute even members of the current government if they fall foul of the law. The success or otherwise of this project or experiment would go a long way to inform and influence the age-old and on-going debate (probably started in 1968 by the Akufo-Addo Constitutional Commission and definitely continued by the 1978 Mensah Constitutional Commission) on whether to separate the office of the Attorney-General from that of the Minister of Justice, or whether to create an independent office of a Prosecutor-General, or whether what is really required is to grant the Attorney-General himself or herself, independence from the Executive and the President in the exercise of all prosecutorial powers.

 It is my personal and firm belief that we should amend the Constitution and take away the criminal prosecution function of the AG’s office, and vest it in a separate, independent office of a Prosecutor-General. Until we achieve that, I certainly welcome the establishment of the office of “Special Prosecutor” with a specific mandate to work with the police and other statutory investigatory agencies such as EOCO and prosecute public sector corruption and crimes committed under our procurement laws. All prosecutions would, of course, be in the name of the Republic, but at the suit of the Special Prosecutor, in accordance with Article 88(4).