Before the 2016 presidential and parliamentary election, the New Patriotic Party promised Ghanaians the intention to establish the Office of the special prosecutor that would be solely responsible for the investigation and prosecution of public officers to protect the public purse. The special prosecutor's Office aims to lessen the burden on existing anti-corruption agencies and remove the institutional roadblocks that exist as hindrances to the fight against corruption. The result is to make anti-corruption agencies in the country more effective at discharging their duties. The Office of the Special Prosecutor (OSP) Bill 2017 was laid in parliament in July 2017 after they captured power in the general election. This Bill, which was finally enacted into law in December 2017 after more than thirty modifications highlighted, President Akufo- Addo and his administration's will to establish a specialized agency capable of investigating and prosecuting corruption cases involving politically exposed persons and retrieving stolen funds for the state[1]. 

Before laying the Bill and its subsequent passage into law, some legal issues became evident that the law should address. The first issue of contention was how this new entity could function independently from the Attorney-General, to tackle corruption without fear or favour.  

The next issue of contention was whether the new entity was likely to duplicate the work of other anti-corruption institutions already struggling for resources.  

For this article, I shall address the first issue as to whether this new entity (OSP) could function independently from the Attorney-General to tackle corruption without fear or favour, considering how the drafters resolved it according to the law. This article seeks to respond to the general notion of the ordinary Ghanaian that the special prosecutor is very independent and not subject to any person or authority in performing his duties. 

 PROSECUTORIAL POWERS OF SOME COMMONWEALTH COUNTRIES

First, we shall take a critical look at the Constitution of Kenya and discuss the relevant provisions in relation to our topic. According to the Constitution of Kenya, the Attorney-General is the principal legal adviser to the   Government and he/she shall also represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.[2] These provisions indicate that the Attorney-General is mandated to represent the state in court in all legal proceedings except criminal proceedings. He lacks the power to initiate criminal prosecution on behalf of the national government. Article 156(5) provides that the Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the government is not a party3. This means that the Attorney-General has nothing to do with criminal proceedings, whether or not the state is a party. He shall only do so when the matter is a civil matter. Article 157 of the Constitution of Kenya established the Office of Director of Public Prosecutions (DPP). It provides that the Director of Public Prosecutions shall have the power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct, and the Inspector-General shall comply with any such direction4. A very interesting provision in relation to the prosecution powers of the DPP is Article 157(6), which 2explicitly says that the Director of Public Prosecutions shall exercise State powers of prosecution and may-- 

(a)                institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offense alleged to have been committed; 

(b)               take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority[3][4]. From these provisions, it is important to note that the only person vested with state powers to initiate criminal prosecutions against any person is the Director of Public Prosecutions. The Inspector-General of the National Police Service is compelled by law to receive and comply with direction from the DPP in relation to investigating alleged criminal conduct. The constitution has also granted total independence to the Office of the Director of Public Prosecutions by providing that the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings 

and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority6. It is explicit in the laws of Kenya that the Attorney-General is responsible for the conduct of civil matters on behalf of the state, whiles the Director of Public Prosecution is responsible for the initiation and conduct of criminal cases on behalf of the state. 

In the case of the Republic of Ireland, the 1937 constitution (as amended in 2012) says that "all crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose[5]". The wordings of this provision make it palpable that even though the Attorney General was vested with the state power to prosecute all crimes and other offences on behalf of the state, this power can be derogated to some other person by law. The attorney general was therefore responsible for the prosecution of criminal offences until 1974. In 1974, the position of Director of Public Prosecutions was established by the Prosecution of Offences Act 1974. This Act delegated the functions of the Attorney General to the Office of the Director of Prosecutions, purposely aimed at creating an impartial agency and refocusing the Office of the Attorney General on the provision of legal advice to the government. The P3rosecution of Offences Act 1974 requires the Director of Public Prosecutions to deal with "criminal matters," which include overseeing criminal proceedings through the courts, applications arising from criminal proceedings, or any connected other proceedings. The passage of the Prosecution of Offences Act 1974 took the prosecution of criminal matters from the Attorney-General, thereby limiting the powers of the Attorney-General. The DPP does not need any authorization from any person to perform his/her duties. 

In the case of Uganda, the 1995 Constitution as amended in 2017, provides that the Attorney General shall be the principal legal adviser of the government. He shall also draw and peruse agreements, contracts, treaties, conventions, and documents to which the government is a party or in respect of which the government has an interest. The Attorney-General is also mandated to represent the government in courts or any other legal proceedings to which the government is a party[6]. It can be inferred from this provision that the Attorney-General shall be the defendant in any legal proceeding involving the state. According to the 1995 Constitution of Uganda, the Director of Public Prosecutions has the authority to direct the police to investigate any information of a criminal nature and to report to him or her expeditiously. He also has the state power to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court-martial[7]. In discharging these prosecution duties, Article 120(6) provides that the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority. This provision draws a distinction between the Office of Attorney-General and the Director of Public Prosecutions in terms of their functions. 

Obviously, the Office of the attorney general is a cabinet-level government position in the country solely responsible for rendering legal services to the government. The Office has nothing to do with the initiation and conduct of criminal proceedings as this is the sole responsibility of the Director of Public Prosecutions. The Constitution of Uganda has placed the Office of the Director of Public Prosecution independently such that it does not need authorization from the Attorney General.  

Considering the Constitutional provisions of Australia, the Attorney-general is the Minister responsible for legal affairs, and national and public security. The Attorney-general also serves as a general legal adviser to the Cabinet and has carriage of legislation dealing with copyright, human rights, and a range of other subjects. The Attorney-General for Australia is responsible for the authorization of public prosecutions. In normal circumstances, the prosecutorial powers of the attorney-general are exercised by the Director of Public Prosecutions and staff through the Director of Public Prosecutors Act 1983; however, the attorney-general maintains formal control including the power to initiate and terminate public prosecutions and take over private prosecutions. The Office of the Director of public prosecutions operates under the Attorney General and therefore needs the authorization of the Attorney-General to initiate criminal proceedings.  

In the case of Singapore, the Constitution provides that it shall be the duty of the Attorney General to advise the government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President or the Cabinet and to discharge the functions conferred on him by or under this Constitution or any other written law[8]. Article 35 provides that the Attorney‑General shall have power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for any offence[9]. This means that the Attorney-General has the state prosecutorial powers to initiate and conduct legal proceedings. He may authorize another person to do4 so on his behalf. 

Lastly, Rwanda's Constitution of 2003 with Amendments through 2015 provides in Article 142 that the National Public Prosecution Authority shall be responsible for investigating and prosecuting offences throughout the country[10]. Interestingly, Article 145 says that The National Public Prosecution Authority is under the supervision of the Minister in charge of Justice. In matters relating to the prosecution of offences, the Minister in charge of Justice determines the general policy and may, in the public interest, issue written instructions to the Prosecutor General to undertake or refrain from investigating and prosecuting an offence. It is without uncertainty that the National Public Prosecution Authority is not an independent body and so the Prosecutor General cannot perform his/her prosecutorial functions without the direction of the Minister in charge of Justice. 

 From the foregoing discussions, it is unambivalent that in some jurisdictions, the AttorneyGeneral plays a supervisory role and so directs and controls the prosecution of offences. In these countries, the Office of Public Prosecution is not independent of the Attorney-General as it operates under the authority of the Attorney-General. This can be seen in the case of Singapore, Rwanda, Australia, and others. On the other hand, some countries have expressly separated the Office of Attorney-General from the Office of Public Prosecution such that they both operate independently of each other. In such instances, the Director of Public Prosecution is solely responsible for initiating and conducting criminal Proceedings on behalf of the state and does not need authorization from anybody. Some countries in this practice include Kenya, Uganda, the Republic of Ireland, etc  

THE CASE OF GHANA 

To draw a vivid conclusion on the legal issue at stake, we need to juxtapose the constitutional provisions in other jurisdictions with the provisions in Ghana. The 1992 Constitution of Ghana provides 5that the Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences[11]. Article 88(4) also provides that all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law. For the purposes of this constitutional provision, no other person has the authority to initiate criminal proceedings on behalf of the state apart from the Attorney-General or a person authorised by him to do so. The Attorney-general is also the representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights. 

This constitutional responsibility imposed on the Attorney-General does not exclude the prosecution of public officers who may be involved in criminal offences of any kind. The question then is whether the Attorney-General can prosecute any public official who may commit a criminal offence even though he has the constitutional authority to do so? It is important to note that the Attorney-General is also a minister of state and the principal legal adviser to the government according to Article 88(1). On the basis of that, it raises questions as to whether the Attorney-General would be interested in prosecuting some key public officials whom he is constitutionally mandated to serve? 

Having established the mandate of the Attorney-General as provided in the 1992 constitution of Ghana, we must consider the Act that established the Office of Special Prosecutor. The Office of the special prosecutor was established by the Office of Special Prosecutor Act, 2017, Act 959.  

According to the Special Prosecutor Act (Act 959), the Special Prosecutor shall investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences[12]. This provision leaves some crucial questions to be answered. Who determines the specific cases to be investigated and prosecuted by the special prosecutor? What are the criteria for determining the cases that qualify to be investigated and prosecuted by the special prosecutor? It is obvious that the special prosecutor has a limitation as to the kind of suspected corruption or corruption-related offences to investigate and prosecute. Relating this provision to section 3(c) of Act 959, stating; that the special prosecutor shall investigate and prosecute alleged or suspected corruption and corruption-related offences involving public officers, politically exposed persons, and persons in the private sector involved in the commission of the offence under any other relevant law. Will the special prosecutor be performing a conflicting role with the Attorney-General with respect to article 88(3) of the Constitution? Maybe the Attorney-General has some discretionary powers in this context to determine the cases to prosecute personally and those to be prosecuted by the special prosecutor.  

It is important to note that, even though section 3(1)(a)(b) mandates the Special Prosecutor to prosecute cases of alleged or suspected corruption and corruption-related offences under the Public Procurement Act, 2003 (Act 663) as well as allegations of corruption and corruption related offences under the Criminal Offences Act, 1960 (Act 29), Section 3(1c) makes the list inexhaustive by providing that he can prosecute under any other relevant law. This means that the question as to who determines the limitation in relation to the "Specific cases" still remains. 

Section 4 of Act 959 states that, except as otherwise provided in the Constitution, the Office is not subject to the direction or control of a person or an authority in the performance of the functions of the Office. It is clear that the Office of the special prosecutor is not subject to the control of "a person." This means that the Office is subject to the direction or control of somebody or an authority somewhere. The purpose of the phrase "a person" is to indicate that the Office is subject to somebody somewhere or an authority. We must compare the independence of the Electoral Commission as provided in the Constitution. Article 46 states that, except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of "any person" or authority. In this article, the law is clear that the Electoral Commission is not subject to any person or authority and so cannot be controlled by anybody or authority establishing its total independence, but in the case of the special prosecutor, the law says, "a person" or an authority meaning there is an undisclosed person or authority to which it subjects.  

In order to appreciate the provision in section 4(1) with much certainty, it is important we consider section 4(2) of Act 959, which provides that, subject to clause (3) of Article 88 of the Constitution, the Office shall for the purposes of this Act be authorised by the Attorney-General to initiate and conduct the prosecution of corruption and corruption-related offences. For the purpose of this section, the special prosecutor cannot initiate and conduct prosecution of any corruption and corruption-related offences without the authorization of the Attorney General. This leaves no doubt in mind that the Office of the special prosecutor is subject to the authority 

15 Section 4(1) of the special prosecutor Act (Art 959) 

of the Attorney-General. This is the reason for which the drafters of the Act used "a person" instead of "any person" as provided in the Constitution in the case of the Electoral Commission. 

During Leadership Dialogue held in May 2021, Justice Yaw Appau, Justice of the supreme court of Ghana, in his presentation, indicated that the Office of the special prosecutor is not as independent as ordinary Ghanaian walking on the street perceive it to be. He established that the Office of the special prosecutor operates under the Attorney-General and so is subject to his control as provided in section 4(2) of Act 959. This prevents the special prosecutor from working independently to achieve the purpose for which it was established. He also indicated that the establishment of the Office of the special prosecutor was mainly to independently investigate and prosecute corruption and corruption-related offences as a way of protecting the public purse, but the law establishing the Office did not grant that total independence. The first occupant of the Office of the special prosecutor, Mr. Martin Amidu, who was nominated by President Nana Addo Dankwa Akufo-Addo on 11th January 2018, resigned on 16th November 2020, citing inter alia political interference by his appointer, President Nana Akufo Addo. According to Mr. Martin Amidu, as reported by GhanaWeb on Monday, 16th November 2020, he resigned because he did not feel that President Nana Akufo Addo had done enough to safeguard the independence of his Office16. He indicated, according to GhanaWeb.com that "The events of 12/11/2020 removed the only protection I had from the threats and plans directed at me for undertaking the Agyapa Royalties Limited Transactions anti-corruption assessment report and dictates that I resign as the Special Prosecutor immediately" 

According to a report by Graphic online on 16th November 2020, Mr. Martin Amidu accused President Akufo-Addo of trying to direct him on how to proceed with the corruption risk assessment the Office of the Special Prosecutor had conducted on the Agypa Deal. He also alleged that the president tried to convince him to take the response of the Finance Minister to the corruption risk assessment, which he refused, indicating that it would have compromised his independence as the Special Prosecutor17. 

It is clear that the drafters of Act 959 decided to establish the Office of special prosecutor to function under the Attorney-General and Minister of Justice. The question then is, if the Attorney-General cannot prosecute some key public officials and his party men who fall foul of the law because of political clouds and other factors, how can a special prosecutor who works under his authority do so? It is a notorious fact established in the law that the special prosecutor will do nothing without the authorization of the Attorney-General. 

 CONCLUSION

From the analysis enunciated above, it is explicit that the independence of the office of public prosecution or special prosecutor depends on the constitution of the country in question. The constitution of some countries like Kenya, Uganda and the Republic of Ireland clearly detached the criminal Prosecution from the Office of Attorney-General and provides room for the establishment of the office of public prosecution by statute. On the other hand, the constitution of some countries subject the office of public prosecution under the office of the AttorneyGeneral such that the Attorney-General plays oversight responsibility in its operation. Some of these countries include  Singapore, Rwanda, Australia as well as Ghana. According to Article 88(4) of the 1992 constitution of Ghana, only the Attorney General or a person authorised by him can prosecute on behalf of the state. This position of the law was affirmed in the Office of the Special Prosecutor Act 2017, Act 959 according to sections 2, 3 and 4, making the OSP subject to the direction and control of the Attorney-General. The office of the special prosecutor can only be independent if Article 88(4) is amended to detach the prosecution powers as in the case of Kenya. 

We must, at this moment, be informed that the Special Prosecutor, by the law establishing the Office, is not as independent as the ordinary man walking on the street perceives him to be. That general notion is misleading and must be corrected as the Special Prosecutor cannot initiate or conduct any prosecution without the authorization of the Attorney-General.  

[1] Government of Ghana (2019) “Parliament Passes Office of Special Prosecutor Bill, 2017” Retrieved 07/05/2019 from: http://www.ghana.gov.gh/index.php/media-center/news/4184-parliament-passes-office-of-specialprosecutor-bill-2017
[2] Article 156(4) of the 2010 constitution of Kenya. 3 Article 156(5) 0f the 2010 constitution of Kenya. 4 Article 157(4) of the 2010 constitution of Kenya.
[3] Article 157(6) of the 2010 constitution of Kenya.
[4] Article 157(10) of the 2010 constitution of Kenya.

[5] Article 30(3) of the 1937 constitution of the  Republic of Ireland (as amended in 2012)
[6] Article 119(3)(4) of the 1995 Constitution of Uganda (as amended in 2017)
[7] Article 120(3) of the 1995 Constitution of Uganda (as amended in 2017)
[8] Article 35(7) of the 1963 constitution of Singapore (as amended in 2016)
[9] Article 35(8) of the 1963 constitution of Singapore (as amended in 2016)
[10] Article 142 of the 2003 constitution of Rwanda with Amendments through 2015
[11] Article 88(3) of the 1992 constitution of Ghana
[12] Section 2(a) of the Special Prosecutor Act (Act 959), 

By ALFRED KUDZO ADUKOR