The Special Prosecutor, Kissi Agyebemg has indicated 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 Procsueirt (OSP).
Mr Agyebeng said this has troubling consequences.
Four instances will suffice, he said.
“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.”
He stressed “there appears to be a developing trend of rather regressive and dismissive judicial decisions in respect of cases involving the OSP, with troubling consequences. And it seems to us that a careful examination of these outcomes portends a disturbing spectre that the fight against corruption is being hampered to the disbenefit of us all. Four instances will suffice.”
Herecounted that 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.
“In the second instance, the OSP declared as wanted a person it believed to be a fugitive from justice. The person, through his lawyer, proceeded to the Human Rights Court on an ex parte application and the judge, without even an enquiry as to why the OSP believed him to be a fugitive from justice, issued an injunction order that the OSP should not arrest him for a period of ten days.
“Again, the danger of this outcome is obvious. It encourages criminal suspects to go before the courts to seek injunction orders against law enforcement agencies from apprehending them. The judge did not advert his mind to the well-founded proposition that no one has the right not to be arrested. And he accorded the suspect a right not to be arrested.
In the third instance, the OSP applied to the High Court for a confirmation of a seizure order and a freezing order in respect of a person who had just resigned from a ministerial position and had reported that large cash sums in foreign denominations had been stolen from her residence. In addition, the OSP subsequently discovered additional large cash sums in foreign denominations and cedis still stashed in her residence.
“The judge hastily dismissed the OSP’s application and ordered a return of the seized amounts and the defreezing of her property and he proceeded to lash out at the OSP for not doing a thorough investigation – without the slightest consideration that the seizure
and freezing orders are designed by law to facilitate investigation into the affairs of suspects and not the other way of requiring thorough investigation before the OSP can seize or freeze.
“The judge also completely shut ignored the fact that in almost every jurisdiction, including Ghana, it is extremely unusual and highly suspicious for a public officer to have such large cash sums stashed in their homes. And that that circumstances of the case dictated pause and reflection and the granting of the OSP adequate time to carry out its investigation. The judge was only interested in a return of the money to the person of interest and nothing more and he proceeded to erect non-existent legal barriers to prevent the OSP from investigating the matter.”