Ranking member on Parliament’s committee on Constitutional, Legal and Parliamentary affairs, Alhaji Inusah Fuseini says the committee has not considered the constitutionality of the Office of the Special Prosecutor bill.
The bill which is currently before parliament is in fulfillment of the 2016 manifesto promise made by the New Patriotic Party as a way of combating corruption.
Page 39 of the 2016 manifesto of the ruling party states: “The NPP will establish an Act of Parliament, an Office of the Special Prosecutor, who will 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.”
A senior law lecturer at University of Ghana, Dr. Raymond Atuguba however believes the move is a waste of time and resources because the bill will not stand the constitutional test.
“Every Prosecutor in Ghana is, within the meaning of Article 88 of the 1992 Constitution, under the PROSECUTORIAL DISCRETION, PROSECUTORIAL DIRECTION, AND PROSECUTORIAL CONTROL OF THE ATTORNEY GENERAL. Such a Prosecutor is DEPENDENT on the Attorney-General and can never be INDEPENDENT. Any Ghanaian lawyer who does not know this should not have passed their Constitutional Law, Criminal Law, and Criminal Procedure exams,” he argued.
Dr Atuguba further stated: “Again, every prosecutor in Ghana is given a charter by the ATTORNEY-GENERAL to prosecute: police prosecutors, SSNIT prosecutors, Forestry Commission Prosecutors, etc. The so-called Special Prosecutor cannot, therefore, be given any special prosecutorial powers. She can only be given the ordinary prosecutorial powers that the Attorney-General ORDINARILY gives to others, and will, therefore, be an ORDINARY PROSECUTOR, and not a SPECIAL prosecutor.”
Delivering a paper on parliamentary oversight and good governance at a public forum organized by the Centre for Social Democracy, the Friedrich Ebert Foundation, the University of Ghana, and the Political Science Students’ Association, Dr. Raymond Atuguba urged parliament to reject the bill.
“THE 1992 CONSTITUTION, THE FUNDAMENTAL LAW OF GHANA, AGAINST WHICH ALL OTHER LAWS MUST FALL, has vested, ALL, repeat, ALL PROSECUTORIAL POWERS in one woman, THE ATTORNEY-GENERAL. Absent an amendment of the Constitution, there is no iota of prosecutorial powers left anywhere to be taken by any person or body, including Parliament, and vested in any other person or body. You cannot give what you donot have. Only the Attorney-General may vest prosecutorial powers, that sit exclusively in her bosom, in any other person,” he opined.
Reacting to the comments of the law lecturer, Tamale Central MP, Alhaji Inusah Fuseini said the question of constitutionality should be left to the Supreme Court to determine.
Alhaji Inusah Fuseini also told Gold News provisions are being put in the bill to ensure that the Attorney General does not interfere in the work of the Special prosecutor.
“The unconstitutionality of the bill sprang from the view that was taken initially by the NPP when they said that they wanted to establish the office of the Independent Prosecutor,” he said.
He stated that this initial constitutional blockade that resulted in the bill being initially rejected by the Committee on Constitutional, Legal and Parliamentary affairs has been dealt with after the bill was renamed the Office of the Special Prosecutor.
“Special as an adjective is used to define the crimes that the Special Prosecutor will have jurisdiction over: that is corruption and corruption related offences,” he noted.
Alhaji Inusah Fuseini added that the occupier of the Office will have the power to initiate and prosecute offences outlined in the bill.
He said the office of the Special Prosecutor will not be independent of the Attorney General but will be an agency of the office.
“The bill recognizes that exclusive prosecutorial authority is vested in the Attorney General and so the bill is seeking to create the office of the Special Prosecutor as an agency of the Attorney General’s office,” he stated.
By: Sena Nombo/Radiogold905.com