A slippery slope if Ghana’s second Special Prosecutor ever is removed from office

On May 19, 2024, 5:05 AM

As required by Article 146 of the Constitution, the Chief Justice is determining whether there is a prima facie case to form a committee to impeach Mr. Agyabeng.

Kissi Agyabeng is the nation’s second-ever special prosecutor. He is facing the possibility of impeachment, which is a charge of wrongdoing brought against the holder of a public office in which his integrity is called into doubt over the validity of something.

His predecessor, Martin Amidu, wrote the petition to remove Agyabeng from office, which the President of the Republic forwarded to the Chief Justice. Amidu resigned from the same position due to “the lack of respect for the independence of his office.” Amidu noted that the president’s reaction to the examination of the danger of corruption and anti-corruption assessment of the Agyapa Royalties limited transaction was the final push that prompted him to leave. However, Amidu has petitioned the President to remove Agyabeng as Special Prosecutor.

Grounds for removing a Special Prosecutor

According to the Office of the Special Prosecutor Act of 2017, the grounds for removing the Special Prosecutor in this case include misbehavior/incompetence (section 15(1)(a)) or conduct that brings or is likely to bring the special prosecutor’s office into disrepute/ridicule or contempt of office (section 15(1)(d)).

Amidu’s petition for the SP’s removal

Amidu’s petition focuses on allegations of procurement breaches and abuse of office. The appeal concerns Agyabeng’s press conference at the OSP in November 2023, during which he expressed concerns about the judiciary, which Amidu believes could lead to misuse and bring the judiciary into disrepute. Amidu’s appeal alleges that the Special Prosecutor violated the rights of Cecilia Dapaah and Prof Frimpong Boateng through their arrests. Amidu also claimed a violation of his right to information when Mr. G requested that appointment letters and salary details for all OSP employees be placed on a pen drive for him, as well as concerns with personnel appointments to the office.

A slippery slope with the potential removal of only the second Special Prosecutor in our country’s history.

If the special prosecutor is removed from office based on his forceful yet well-argued commentary on how the judiciary, in his opinion, frustrates his office, it will be a slippery slope that does not promote justice, transparency, accountability, or the independence of the arms of justice. Aside from the procurement accusation, the other grounds cited in Amidu’s petition do not, in my opinion, demonstrate misbehaviour/incompetence or conduct that brings or is likely to bring the office of the special prosecutor into disrepute/ridicule or contempt of office, as defined by the Office of the Special Prosecutor Act of 2017.

The independence of the Office of the Special Prosecutor will be jeopardized if all future Special Prosecutors can be removed for commenting on how active case law does not benefit their office because people appear to receive immunity from investigation for suspected corruption and corruption-related offenses, and thus immunity from prosecution.

My only suggestion is that if a committee is formed to remove the Special Prosecutor, they should pay close attention to the written transcript and accompanying video of the Special Prosecutor dated November 2023 and see that with the rule of law, his commentary on the judiciary is not a ground to remove a Special Prosecutor, and if they do, this will open the door for the role itself to be politicised and for other special prosecutors to be so easily removed.

Is there a prima facie case for removing the Special Prosecutor from office?
Overall, a prima facie case must be proved at this point, and the Chief Justice has written to the Special Prosecutor for his response before determining whether a prima facie case exists and whether to convene a committee to decide his dismissal.

Prima facie means that the petition is viewed as correct unless proven differently.

Should the procurement allegations be substantiated, this for me is the only ground to remove the Special Prosecutor, because the function of the Office of the Special Prosecutor is in part to investigate and prosecute cases of alleged or suspected corruption and corruption-related offences under the Public Procurement Act, 2003 (section 3, 1), therefore the person mandated to run such an office cannot be found to have committed procurement offences, if that.

All other grounds on Amidu’s Petition, in my opinion, do not go far enough to demonstrate absolute misbehavior or incompetence (section 15(1)(a) Office of the Special Prosecution Act 2017, or conduct that brings or is likely to bring the office of the special prosecutor into disrepute/ridicule or contempt of office (section 15(1)(d) Office of the Special Prosecution Act 2017).

Overall, I believe the Special Prosecutor’s strong views on the judiciary should not result in his impeachment because they do not constitute misbehavior/incompetence or conduct that brings or is likely to bring the office of the Special Prosecutor into disrepute/ridicule or contempt of office, as defined by the Office of the Special Prosecutor Act of 2017.

Watching a tape of the Special Prosecutor’s video from November 2023, in which he made the statements regarding the judiciary, and reading the transcript of the same video, he presents a case for why his office, in his opinion, isn’t getting as much aid from judicial rulings.

The Special Prosecutor provides four examples of cases when individuals were granted immunity from criminal inquiry and prosecution.
He cautioned against anyone gaining immunity from investigation for suspected corruption and associated offenses, which could lead to prosecution.
The OSP, established by law to combat corruption, should be treated with respect and consideration by courts, rather than dismissing it and creating unnecessary barriers to its work and operations.
The OSP prioritizes transparency in anti-corruption efforts by issuing media releases after major judicial pronouncements or decisions. These releases inform the public about the OSP’s position on whether the opinion advances the fight against corruption or not.
I agree with the SP that our judges do not consider themselves above criticism. The Special Prosecutor in the video also mentioned an example of how a Supreme Court justice gently chided him in open court for not publishing enough articles criticizing their work.
The arrests of Cecilia Dapaah and Prof Frimpong Boateng were justified by section 3 of the Office of the Special Prosecutor Act, 2017, which includes investigating and prosecuting cases of alleged or suspected corruption. Amidu further claims in his appeal that Mr. Agyabeng violated his right to information by requesting that appointment letters and salary details for every OSP staff be placed on a pen drive for him, as well as difficulties with personnel appointments to the office. This does not, in my opinion, reflect misbehaviour/incompetence or behavior that brings or is likely to bring the office of the special prosecutor into disrepute/ridicule or contempt of office, as defined under the Office of the Special Prosecutor Act of 2017. As a result, an impeachment should not be based on this grounds.

A slippery slope with the potential removal of only the second Special Prosecutor in our country’s history.

Aside from the procurement accusation, the other grounds cited in Amidu’s petition do not, in my opinion, demonstrate misbehaviour/incompetence or conduct that brings or is likely to bring the office of the special prosecutor into disrepute/ridicule or contempt of office as defined by the Office of the Special Prosecutor Act 2017.

The independence of the Office of the Special Prosecutor will be jeopardized if all future Special Prosecutors can be removed for commenting on how active case law does not benefit their office because it protects people from investigation for suspected corruption and corruption-related offenses, and thus immunity from prosecution.

My only suggestion is that if a committee is formed to remove the Special Prosecutor, they should pay close attention to the written transcript and accompanying video of the Special Prosecutor dated November 2023 and see that, under the rule of law, this is not a reason to remove a Special Prosecutor, and if they do, it will open the door for the role to be politicized and other special prosecutors to be removed so easily.

Procedure for removal

Within 30 days after receiving the president’s petition, the Chief Justice will decide if there is a prima facie case (section 15(3)).
If a prima facie case is established, a committee consisting of a Supreme Court justice, a lawyer with at least 15 years of experience, and an expert in inquiry must be formed within 14 days (section 15 (4)).
The committee will investigate and provide recommendations to the President within 90 days of its formation [section 15(5)].
Section 15(6) requires the president to follow the committee’s recommendations.

Currently, the Chief Justice is supposedly writing to the Special Prosecutor for response before making her final decision on whether a prima facie case exists, and if so, she would form a committee to study the petition and decide whether the Special Prosecutor should be removed.

Story By Amanda Clinton Esq: