Kissi Agyebeng
A High Court has directed the Office of the Attorney General (AG) to take over all prosecutions initiated by the Office of the Special Prosecutor (OSP) without prior authorisation by the AG.
This follows the court’s ruling that the OSP does not have independent prosecutorial power to initiate and prosecute corruption and related offences without prior authorisation from the Attorney General.
The High Court gave the order in spite of a writ pending before the Supreme Court challenging the Act establishing the OSP.
The plaintiff, Noah Ephraem Tetteh Adamtey, is seeking among others, a declaration that on a true and proper interpretation of the Articles 1(2), 88, 93(2), and 296 of the 1992 Constitution, prosecutorial authority in Ghana is vested exclusively in the Attorney General and cannot be exercised independently of, or in parallel with, the Attorney General.
The Attorney General has filed documents challenging Parliament’s decision to delegate its prosecutorial powers to the OSP, arguing it is unconstitutional.
A proposed statement of the AG’s case to a writ pending before the Supreme Court is asking the apex court to declare section 4(2) of the Office of the Special Prosecutor Act 2017, (Act 959) unconstitutional and consequently struck down.
Trial
The ruling, delivered by Justice Eugene 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 the 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, an order striking out the charges against him.
Ruling
The court, in its ruling, held that although the OSP has the power to investigate suspected corruption and related offences, it does not have the power to commence prosecution without the authorisation of the Attorney General.
The court, therefore, ordered the Attorney General to take over all cases initiated by the OSP pending authorisation from the AG.
The court subsequently declared all cases initiated by the OSP null and void. It awarded a cost of GH¢15,000 against the OSP in favour of Archibald Hyde.
OSP Fights Back
Meanwhile, the OSP says it is taking steps to “quickly overturn” the decision since the High Court “does not have jurisdiction to, in effect, strike down parts of an Act of Parliament as unconstitutional.”
The Office, in a statement, said it is only the Supreme Court which can strike down parts of an Act of Parliament as unconstitutional.
“The OSP firmly assures the public that all the criminal prosecutions it has commenced before the courts and all the criminal prosecutions it is about to commence before the courts remain valid and would proceed based on its mandate under the Office of the Special Prosecutor Act, 2017 (Act 959), which remains valid and in force as the matter has not been decided by the Supreme Court,” the statement noted.
Providing a background, the statement said the Criminal Division of the High Court had dismissed an application by the accused persons seeking to strike out the case.
However, the trial judge adjourned proceedings to await a determination by the Supreme Court on a matter in which both the plaintiff and the Attorney General are challenging the independent prosecutorial power of the Office of the Special Prosecutor.
The accused persons then initiated a separate action at the High Court (General Jurisdiction 10).
“In contrast to the Criminal Court, the General Jurisdiction judge declined an application by the OSP to adjourn proceedings pending the outcome of the matter before the Supreme Court. The judge decided that the OSP lacks independent prosecutorial mandate. The judge directed that the case be referred to the Attorney General for prosecution,” the statement pointed out.
It added that these developments have resulted in two “distinct judicial positions regarding the prosecutorial authority of the OSP in the same matter.”
BY Gibril Abdul Razak