The recently passed Special Prosecutor Bill, will soon find itself in the Supreme Court with a challenge on its constitutionality, as soon as President Nana Akufo-Addo, assents his signature to make it law.
Several lawyers, including the former Gender, Children and Social Protection Minister, have questioned the Bill, saying it is inconsistent with the 1992 Constitution.
Some of them are getting ready to head to the Supreme Court to seek constitutional explanation, and this appears to have placed the Bill in a hostage situation, delaying President Akufo-Addo’s signature.
Nana Oye Lithur, insists the Bill can only be constitutional after amendments to Article 88 of the 1992 Constitution, which empowers the Attorney-General to lead prosecutions on behalf of government.
Parliament last Tuesday, passed the Special Prosecutor’s Bill, after a marathon sitting which saw over 30 amendments made to it.
Chief among the controversial amendments is the decision to free the independent prosecutor from any form of prosecution.
But the former Gender Minister under the John Mahama Administration, said Article 88 (3&4) states:
“(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.
(4) 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”;
She was speaking on JoyFM/MultiTV’s news analysis programme Newsfile last Saturday, she said she was also not convinced that the Special Prosecutor (SP), will be truly independent, as s/he will be directly supervised by the Attorney-General.
She added that the wording of the Bill is almost similar to that which established the Economic and Organised Crimes Office (EOCO) Bill in 2010.
“We all want corruption to be tackled but let’s do it in a systematic legal way that is consistent with our 1992 Constitution. This will not fly because it is inconsistent with the Constitution,” Oye Lithur argued.
Contributing to the discussion, private legal practitioner & Law lecturer at the Ghana Institute of Management and Public Administration (GIMPA), Clara Beeri Kasser-Tee, said she foresees the situation where the A-G could abandon a case for lack of interest.
“What if the special prosecutor wants to prosecute a case but then the attorney general enters nolle prosequi; where does that leave us?” she quizzed.
Despite its passage by the Legislature, Madam Kasser-Tee urged “need to sit down and ask whether this secures for us what we want the law to achieve in the first place.”
However, Deputy Majority Leader of Parliament and Minister of State in charge of Public Procurement, Sarah Adwoa Safo, asserted that the argument by the former Gender Minister that the SP Bill has no relevance “is wrong”.
“There is nothing wrong with the constitutionality of this law,” she said explaining that most of the issues raised by Mrs. Lithur “have been reviewed on the floor of parliament” with the help of minority, whom she said, “were very active in the amendments that were done to the Bill.”
The Dome-Kwabenya MP, cited Article 32 of the Constitution to defend the decision of President Akufo-Addo to create the Office of the Special Prosecutor.
“The issue about corruption is about people found in very key positions where they decide to use public funds for their personal gains,” she said.
Government has been accused of failing to fight corruption with several allegations of wrongdoing, especially against previous government appointees.
But the President then candidate, promised to create the office of a Special Prosecutor, which he believes could go about the business of prosecution without any partisan interest.