Private legal practitioner, Martin Kpebu, has disagreed with a comment by the Speaker of Parliament Alban Bagbin that the creation of the Office of Special Prosecutor (OSP) was an exercise in futility.
He says the conversations generated by the actions of the OSP, issuing reports and taking cases to court, have moved the county forward.
“I have a big beef with Mr Kissi Agyebeng for letting off Charles Adu Boahen who mentioned Dr Bawumia in the Anas tape. But that should not lead me to join in the bandwagon of people who say the OSP is an exercise in futility, not at all, far from it. But I will continue to tackle Mr. Agyebeng on the Adu Boahen matter in a different forum. I will focus on the office being a good exercise.
“Let us see what he has done so far, I am not sure there is enough time to summarise what he has done so far, but at least if you look at the conversations the OSP has generated through the case it has brought to court, they have moved us forward. Look at Cecilia Dapaah. I always say it doesn’t matter how the Cecilia Dapaah case ends in court, I will be very happy that OSP wins everything but touchwood, even if OSP were to lose the case in court that doesn’t mean we have lost. In terms of public opinion and the national conversation, we have moved forward a lot,” he said on the Ghana Tonight show on TV3 Tuesday December 12.
Speaker Bagbin had described as an action in futility, the passing of the OSP Act 2017 (Act 959), arguring that the authority is embedded in the powers of the Attorney-General constitutionally.
“As for the law you passed on the establishment of the Special Prosecutor, I did tell you that it was an act in futility. You were not going to achieve anything from that but you went ahead to pass it. I disagreed with you but I was alone,” the Speaker said in Parliament on Tuesday.
He added “Because I was very clear that, that authority is embedded in the powers of the Attorney-General constitutionally.”
His comments come in the wake of the recent lamentations of the the Special Prosecutor Mr Kissi Agyebeng.
He said it would be gravely inimical to public policy, the fight against corruption, and the administration of justice if the courts stepped into this arena to decide who should be investigated or prosecuted and who should not. The danger of this startling decision is once again obvious, he said.
“A judge has granted two persons immunity from investigation for suspected corruption and corruption-related offences and hence immunity from prosecution. This decision opens up a calamitous deluge as every person under criminal investigation would be encouraged to take out suits to injunct investigation and prosecution bodies from investigating and prosecuting them. The real and present danger looms largely on the consideration that by so doing, persons under investigation would conscript the judiciary to clothe them with immunity from investigation and prosecution.
” I do not intend to sound as though I am predicting doom. However, with this development, it would not be long, a suspected murderer or armed robber would boldly walk to court with the unthinkable prayer that the court should injunct law enforcement agencies from investigating him.
We are not suggesting that the OSP is infallible and that every case brought by the OSP or against the OSP should end in a favourable outcome – no matter how improbable the evidence. However, it seems to us that the flagship public agency created by law to fight corruption should receive better regard and consideration by the courts and not the developing trend of dismissiveness and regression without regard to its governing enactments, and certainly not the erection of non-existent hurdles in its work and operations,” he said at a press conference in Accra on Wednesday November 29 while indicating that there appears to be a developing trend of rather regressive and dismissive judicial decisions in respect of cases involving the Office of the Special Prosecutor (OSP).
In one case, the OSP applied to the High Court for a confirmation of a freezing order in respect of a deceased person’s estate. The judge refused to confirm the order by, in effect, holding that the OSP had come too late since the person of interest had died and that his death had extinguished the enquiry commenced after the occurrence of death.
“The danger of this outcome is obvious. It is to effect that a person may, in his lifetime, acquire property through corruption and then upon his demise happily pass on the corruptly acquired property to his estate and by so doing, extinguish all scrutiny as to the
propriety or otherwise of the acquisition of the property because his corrupt activities were not discovered during his lifetime.
“Indeed I have had several calls from well-meaning lawyers admonishing me that they have heard talk that our friends who have been elevated to the bench and presiding over cases in court do not take very kindly to criticism, especially of the public calling out variety as we do.
“And that if the office persists in the media releases, the judges will gang up against the office and throw out all our cases. Mind you, members of the press, collective admonishing is from very senior and experienced lawyers who are members of the law. Members of the press, my learning of the law for the past 25 years in three different jurisdictions, my teaching and training of lawyers and law students for the past 17 years, my 20-year record at the bar all bear testimony that I will be the last person to lead an institution to attack the judiciary.
It will be absolutely of no good should it be the case that the OSP is set against the judiciary or that the judiciary is against the OSP. That will surely spell disastrous consequences for this republic, especially in the fight against corruption to the glee of corrupt persons.”
It is recalled that President Nana Addo Dankwa Akufo-Addo recently justified the creation of the OSP after stating that the establishment was the boldest ant-corruption move ever made by any government in Ghana in the last 30 years.
Speaking at the 2023 Ghana Bar Conference in Cape Coast on Monday, 11 September 2023, Mr Akufo-Addo said: “In the area of investigations and prosecution of corruption and corruption-related offences, a distinct innovation was undertaken by my administration in 2017, with the decision to set up an Office of Special Prosecutor, through the passage of the Office of Special Prosecutor Act, 2017 (Act 959)”.
“The establishment of the Office of Special Prosecutor represents the most courageous measure by any government in the 4th Republic, to prosecute corruption in the executive arm of government”, he asserted.
Mr Akufo-Addo pointed out that the “monopoly of prosecutorial authority by an attorney general, hired or fired by a president, had been identified by some as a key factor allegedly standing in the way of law enforcement and prosecution as a credible tool in the fight against corruption before 2017”.
He indicated that even though the president appoints the Special Prosecutor, “the president cannot, unilaterally, unlike in the case of the Attorney General, remove the Special Prosecutor from office”.
“Article 15 of Act 959 vests the power to remove the Special Prosecutor in a Committee established by the Chief Justice, with the President acting only in accordance with the recommendations of the Committee”, explained, adding: “His or her independence of the President is, thereby, assured”.