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Opinions of Wednesday, 31 October 2018

Columnist: Akoto Ampaw

Fight against corruption: In defence of the Attorney-General

Akoto Ampaw, Private Legal Practitioner Akoto Ampaw, Private Legal Practitioner

I have seen a recent press release said to be from a group of people calling themselves “Coalition of NPP Footsoldiers Against Corruption”. The release, which is doing the rounds on social media, is titled ‘Gloria Akuffo Must Start Prosecuting or Leave Post’.

Indeed, when I saw the name of group that is said to have issued the statement, “Coalition of NPP Footsoldiers Against Corruption”, my first reaction was to burst out into a loud and long laughter interspersed with uncontrollable chuckling. Ghana politics and foot soldiers I said in amusement!!

I then proceeded to read the press release, and went through a series of mood swings – from laughter, and amusement, through disbelief and, by the time I had finished reading the press release, visceral anger.

Ominous Appeal

The allegation was that there was a list of corruption cases that the NPP, while in opposition and on the campaign trail in 2016 had shouted it would investigate and ensure the implicated are made to face the full rigours of the law, should it be voted into office.

The complaint of the ‘NPP Footsoldiers Against Corruption’ was that after almost two years of the NPP in power, there was very little to show for the numerous corruption cases NPP alleged on the campaign trail in 2016. The group, therefore, concludes that either the Attorney-General and his deputies are not interested in prosecuting the list of cases or they are incompetent. The foot soldiers accordingly make the ominous appeal to the President “to order (sic!) the Attorney General to live up to expectation or sack her and her lieutenants”!

Ignorance of what it takes to mount criminal prosecution

Let me state from the onset that I can understand the frustration of the foot soldiers. Nevertheless, they completely miss the point and expose their ignorance of what is involved in criminal prosecution and the Attorney General’s role and function in that process. The first thing to note is that it is one thing to make allegations of corruption against one’s political opponents on the campaign trail and quite another to initiate criminal prosecution in a court of law. This is so because criminal prosecution is not based on allegations made on campaign platforms, but based of cogent and convincing evidence that is established through meticulous investigation and, above all, which can meet the acid test of legal evidence.

It is not the function of the AG to conduct criminal investigations

The second that our frustrated foot soldiers need to understand is that it is not the function of the attorney general to conduct criminal investigations. That rather falls within the purview and It function of the state investigative bodies, foremost among which are the Ghana Police Service, the Bureau of National Investigations, Economic and Organised Crime Office, and the Financial Intelligence Centre, as well as the new Office of the Special Prosecutor, (that after government has fully resourced that office with competent investigators, auditors, lawyers, experts in international financial transactions, and accountants all of whose integrity can, within limits be, vouched for.

Prima facie case

My dear foot soldiers, it is only after such bodies have effectively and successfully carried out their job of investigating the allegations of corruption, which you have listed in your press release, that a docket is prepared for the attention of the Attorney-General to review. Then when upon review, she is satisfied that there is a prima facie case, based on the evidenced uncovered by the investigations, she initiates criminal prosecution.

Without such docket or report, not even the most competent and committed Attorney-General in the world can be effective and procure conviction of persons charged with looting the state. The first question then that the foot soldiers and all those who honestly and wholeheartedly support the fight against corruption in Ghana ought to ask is: have the bodies charged under the law to carry out investigations done their job and submitted compelling dockets for the AG to review the evidence in the light of the law so as to conclude that there is sufficient legal evidence, not political platform or beer bar evidence, to mount a successful or, at the very least credible, criminal prosecution? The answer to that question is, in my respectful view, a resounding NO! They have not. And without such legal ammunition, there is little the Attorney-General can do.

Again, the foot soldiers expose either their ignorance or political bad faith when they claim there is very little to show for the corruption cases about which they sang on the 2016 campaign trail. Currently, the Attorney General is prosecuting simultaneously three major corruption cases – the National Communication Authority case, the Cocobod case and the SSNIT case.

A dangerous Machiavellian conspiracy against legal ethics?

The Footsoldiers against Corruption can be forgiven their naked display of ignorance of the law and what it takes to mount a successful criminal prosecution. But others who are well informed of the intricacies and complexities of especially white collar crime should know better. For I have reason to believe that it is these others, who are hiding in the shadows and using the unsuspecting foot soldiers as pawns in a what is no more than a dangerous Machiavellian conspiracy to oust the Attorney General from office.

It is these who have provoked my anger and indignation and have forced me to speak out my mind on this matter of principle. They should know better! They should know that the role of the Attorney-General, in our jurisprudence and, especially under the Constitution of the Republic, cannot be likened to that of the inquisition. And it is not by accident the Attorney-General is the only minister of state specifically named in our Constitution.

As the competent and worthy Attorney-General she is, Miss Gloria Afua Akuffo ought not to see herself as a political hatchet woman that uses the awesome prosecutorial powers of the state to hunt down political opponents. I am sorry, but this is not the role the Constitution and the law have carved out for the office of the Attorney-General. Rather she must be convinced in accordance with the ethics of the legal profession that there is sufficient evidence to procure a conviction of persons she charges with the commission of criminal offence or that there is what is referred to as a prima facie case that the accused persons must answer before a court of law.

The burden of proof beyond a reasonable doubt

And mind you, the AG, like any other prosecutor, must prove her case against the accused persons beyond a reasonable doubt. Therefore, where an accused person succeeds in raising a reasonable doubt in the mind of the judge of fact and law as to whether or not he committed the offence, the judge or court is bound by law to acquit and discharge the accused.

That is why, in the absence of a docket that that shows that, on the evidence available, there is a prima facie case to be answered by the accused, it is foolhardy and imprudent (unwise) for any Attorney-General to rush to court to prosecute the list of cases the foot soldiers and their ventriloquist are complaining the Attorney General has failed to prosecute.

No Attorney-General worth her or his salt will do that. And I know, that the current Attorney-General, a competent and ethically disciplined professional that she is, will not rush to court with cases that have not chance of procuring a conviction simply in response to party political pressure and to satisfy the baying of misguided elements like ‘the Foortsolders Against Corruption”.That is not the role of the Attorney-General in our Republic and under the Constitution, 2018.

The President knows this very well and that is why I do not expect him to bow to such base pressures.

Long Live the rule of law!
Long live Ghana!!.