As Parliament readies to read the bill on the Office of the Special Prosecutor, the Speaker has cautioned that the President must tread cautiously in the creation of the office.
Quoting the 1992 Constitution, Professor Micheal Ocquaye says it is only the Attorney General and Justice Minister that has the prosecutorial powers and any attempt to alter that arrangement must be done in accord with the laws of Ghana.
Speaking to an entourage of the British Minister of State for the Commonwealth and the UN, the Speaker said whilst the office of the prosecutor is an important addition to Ghana's democratic dispensation, it cannot be done in breach of the law.
Article 88 of the 1992 Constitution says: "There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government. (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."
During the 2016 elections the then presidential candidate of the NPP, Nana Akufo-Addo promised to create a new independent office to handle prosecutions of corrupt public officials. The rationale, he explained was to put an end to the chorus of witch-hunting that has attended previous prosecutions.
But the move to create the office will substantially alter the country's constitution which gives only the Attorney General powers to prosecute.
The Speaker of Parliament told the British emissaries, unlike the British laws which rely on conventions and not heavily codified, Ghana's laws are clear and rigid. He added, for such an office to be created the laws must be amended.
He was quick to add that even in some cases involving entrenched clauses within the constitution, amendments by Parliament will not be enough.
His comments come after weeks of stakeholder engagements led by the Attorney General and Minister of Justice in a bid to ensure a seamless creation of the office of the Special Prosecutor, government's important anti-corruption legislation.
The Attorney General told participants at a meeting in Accra, government wants their honest and sincere views on the draft Bill of the Office of the Special Prosecutor before it is laid before Parliament.
The Justice Minister explained the stakeholder meeting has been called because government recognises that the fight against corruption is neither the sole prerogative nor the responsibility of any one individual.
Giving an outline of the draft, Gloria Akuffo said the office will have "full authority" to start investigations and finish prosecution of officials found to have been corrupt.
There will be no political interference or micromanagement; she touted the security of tenure to be embedded in the law.
But the Speaker of Parliament still believes the government must proceed cautiously in the setting up of the new office.
Road Block surmountable
Commenting on the issue, the Vice president of think tank IMANI Ghana, Kofi Bentil, said the concerns raised by the Speaker are legitimate and calls for a lot of discussion and consultation.
He admits that Article 88 remains a roadblock to a smooth and successful creation of the office of the Special Prosecutor but was quick to add, the challenge posed by that article is not unsurmountable.
Even though he argued that the law must be amended in the long run, he said in the interim, the powers of the AG can be taken away and given to the Special Prosecutor.
“The discussions have shown that it is not going to be easy mainly because it requires a Constitutional amendment but there is going to be a middle way.
“The middle way is that the AG must appoint the person and there should be a law to allow the person to operate as freely as possible. It must also guarantee tenure of office, a budget for the office and the issue of parliamentary approval for the person to be accepted across the political divides,” he said.
Also commenting on the issue, a former member of Parliament’s Legal and Constitutional Committee said he is intrigued that the Speaker is now waking up to what the minority has been saying since day one.
“Article 88 is sacrosanct unless and until something is done about it, there is no way that the special prosecutor is going to have special powers that are not derived from that Article.
“The Speaker is right in saying that it is not a clear cut issue. Although laws emanate from Parliament it behoves on the AG to ensure that the kind of bill she is bringing to Parliament will stand the test of time and in conformity with the Constitution,” he said.
He added that it would prevent someone going to the supreme court and quashing it and it would have been a wasted effort.
"That is why we have been saying that the office of the special prosecutor is not something we should worry about. Within the confines of the law, the AG has the power to delegate," he added.