Kissi Agyebeng
A High Court in Accra yesterday dismissed an application by the Office of the Special Prosecutor (OSP) asking it to stay the execution of its order for the Attorney General (AG) to take over all cases being prosecuted by the OSP because it does not have power to prosecute without authorisation from the AG.
The court, presided over by Justice Eugene John Nyante Nyadu, refused the application which had asked the court to halt the implementation of the order to allow the OSP appeal the decision.
The OSP has indicated that it will immediately repeat the application for stay of execution at the Court of Appeal.
The OSP has already filed legal challenges at the Supreme Court and the Court of Appeal challenging the High Court’s decision.
No Power To Prosecute
The court, in April this year, set aside all convictions secured by the OSP as a result of its failure to obtain the authorisation of the Attorney General to initiate the prosecution of those cases as spelt out in Section 4(2) of the Office of the Special Prosecutor Act, 2017 (Act 959).
According to the court, the OSP does not have the power to initiate the prosecution of criminal offences without the express authorisation of the Attorney General, who is mandated by Article 88 of the 1992 Constitution to initiate criminal cases in the name of the Republic.
“The purported exercise of prosecutorial power by the respondent (OSP) without lawful authorisation is unlawful,” the court held its ruling on an application challenging the authority of the OSP to initiate prosecution of corruption and related offences without the authorisation of the Attorney General.
The order only affects two known cases in which the OSP has secured convictions—both of which resulted in a plea bargain with the accused persons.
The ruling, delivered by Justice Nyante Nyadu, came at the back of an application for review against charges initiated by the OSP against James Keck Osei, the Administrator at the Office of former Vice President, Dr. Mahamudu Bawumia; Issah Seidu, a staff at the National Insurance Commission; John Abban and Peter Archibald Hyde, all senior Customs officers at the Ghana Immigration Service (GIS).
Among the accusations against the accused is the alleged use of fake documents and letters from the Office of the Vice President to clear a container from the Tema Port.
The application filed by Archibald Hyde was challenging the powers of the OSP to prosecute cases without the authorisation of the Attorney General.
He sought among others, a declaration that in the absence of such authorisation from the Attorney General, the OSP’s exercise of prosecutorial powers is unconstitutional, unlawful and null and void.
He also sought a restraining order on the OSP from initiating, conducting, or continuing prosecutions in the name of the Republic unless duly authorised by the Attorney General.
Ruling
Justice Nyadu, in his ruling, held that perhaps the officers of the OSP by their name ‘Special Prosecutor’ had erroneously assumed that Section 4(2) of Act 959 consequentially amended Article 88 of the Constitution and placed them at par with the Attorney General.
The court held that since Article 88(3) makes the Attorney General responsible for the initiation and conduct of prosecution of all criminal offences in Ghana, the Attorney General is ordered to take over all prosecutions currently being handled by the OSP in the various courts pending the submission of its application to the Attorney General for the grant of authorisation to its officers by way of an Executive Instrument to enable them prosecute criminal offences.
The court consequently nullified all convictions secured by the OSP as a result of the “purported exercise of prosecutorial power.”
Justice Nyante Nyadu further ordered the retrial of the persons convicted through trials initiated by the OSP pending the Office applying to the Attorney General for its officers to be authorised to conduct criminal prosecutions and the issue of the necessary Executive Instrument in that regard.
BY Gibril Abdul Razak