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Opinions of Tuesday, 16 January 2018

Columnist: Yaw Osei-Amoako

Reflections on Ghana’s Office of the special prosecutor (1)

Pursuant to Section.13 (3), of the Office of Special Prosecutor Act, Act 663, 2018, the Attorney General has nominated Mr. Martin Amidu for appointment as Special Prosecutor by the President. The President has accepted her nomination, subject to the approval of Parliament by an absolute majority.

In announcing his acceptance of Mr. Amidu’s nomination to the press on January 11, 2018 at the Flagstaff House, the President remarked, “I have accepted the Attorney General’s nomination, and will, in turn, submit for Parliament’s approval, when it reconvenes on 23rd January 2018, for its first meeting of this New Year, the name of Martin Alamisi Burnes Kaiser Amidu to be the first Special Prosecutor under the law.

He extolled his virtues by describing him as “a prominent legal personality, who held the high office of Attorney General of the Republic in the government of the late President Prof. John Evans Atta-Mills, has the requisite integrity, competence, courage, and independence of character to discharge effectively the responsibilities of this new office.”

The Government of Ghana has established by an Act of Parliament, an Office of the Special Prosecutor to investigate and prosecute certain categories of cases and allegations of corruption and other criminal wrongdoing under the Criminal and Other Offences Act, 1960 (Act 29), including those involving alleged violations of the Public Procurement Act, 2003 (Act 663) and cases implicating public officers and politically exposed persons.”

The office seeks to prevent corruption in the public sector, recover the proceeds of corruption and corruption-related offences, co-operate and coordinate with competent authorities and other relevant local and international agencies in the performance of its functions and restore public confidence in the delivery of justice and the government.

The terminology has changed over the years to include Independent Counsel and Special Counsel although they all have the same fundamental meaning. In total, the US has appointed twenty-nine Special Prosecutors so far, as Ghana readies herself to get her first.

In the United States where the office was first created, a special prosecutor is a lawyer appointed to investigate, and potentially prosecute, a particular case of suspected wrongdoing for which a conflict of interest exists for the usual prosecuting authority. Other jurisdictions have similar systems. For example, the investigation of an allegation against a sitting president or attorney-general might be handled by a special prosecutor rather than by an ordinary prosecutor who would not otherwise be in the position of investigating his or her own superior.

In a testimony before Congress on May 14, 1993, Attorney General Janet Reno stressed the Clinton government’s and her own support for the office, noting that it served “as a vehicle to further the public's perception of fairness and thoroughness...and to avert even the most subtle of influences that may appear in an investigation of highly-placed executive officials.” Vowing to head an administration with the highest ethical standards, President Bill Clinton took the step of being the first president since Carter to endorse the institution of the independent counsel.

On July 1, 1994, Clinton signed the reauthorization bill, and called the law “a foundation stone for the trust between the Government and our citizens.” He dismissed charges that it had been a “tool of partisan attack...and a waste of taxpayer funds.” Instead, he said, the statute “has been in the past and is today a force for Government integrity and public confidence.”

The first US Special Prosecutor, John B. Henderson, was appointed by President Ulysses Grant in 1875 to investigate the Whiskey Ring, a scandal involving diversion of tax revenues in a conspiracy among government agents, politicians, whiskey distillers, and distributors. It resulted in one hundred and ten convictions, $3 million in recovered taxes, and exposed an air of corruption attached to the Grant administration.

After 1875, the following can be cited as popular issues involving the US Special Prosecutor. In 1973, President Richard Nixon appointed Archibald Cox to investigate the burglary of the democratic headquarters at the Watergate office complex and its subsequent cover-up. As part of his investigation, in July of that year, Cox first requested and then subpoenaed the Nixon White House tapes; secret recordings Nixon had made of conversations in the Oval Office and elsewhere.

The Nixon administration refused to produce the tapes citing executive privilege, and the dispute was fought in court until October. After a Court of Appeals instructed the president to comply with the special prosecutor’s subpoena, Nixon ordered the special prosecutor fired. In what became known as the Saturday Night Massacre, both Attorney General Elliot Richardson, and then Deputy Attorney General William Ruckelshaus resigned rather than carry out the order to fire Cox. Solicitor General Robert Bork, who was third in line at the Department of Justice, then fired Cox.

The Nixon White House announced that the office of the special prosecutor had been abolished, but after public outcry Nixon instead had Attorney General Bork appoint Leon Jaworski as the second Watergate special prosecutor. He continued Cox’s pursuit of the White House tapes, which were ultimately released following the Supreme Court decision in United States v. Nixon. In 1974, the House Judiciary Committee filed impeachment charge against Nixon who resigned the presidency two weeks later, on August 9, 1974.

In 1978, President Jimmy Carter appointed Arthur Hill Christy to delve into an accusation that his chief of staff had used cocaine but no one was indicted. In 1994, Attorney General Janet Reno invoked it to order an independent counsel be appointed to investigate Whitewater, and suggested Harlan Fiske Stone continue in that role. Instead, Ken Starr was given the job by a three-judge panel, to look into charges of improper behavior by Clinton in the sale of property from the Whitewater Development Corporation but neither Bill nor Hillary Clinton was indicted, but some of their former business partners were, and fifteen of them were convicted.

In 1998, the same Kenneth Starr was charged to investigate charges that Clinton perjured himself when questioned about sexual relations with Monica Lewinsky. The result was that Clinton was impeached but he was later acquitted by the Senate. Finally in 2005, George W. Bush appointed Patrick Fitzgerald to investigate suspicions that some members of the State Department had leaked the identity of a covert CIA officer for political ends. In the end, no one was indicted for the leak, but one Lewis “Scooter” Libby was convicted on four felony counts of making false statement, perjury, and obstruction of justice.

On May 17, 2017, former FBI Director Robert Mueller was appointed special counsel to investigate Russian interference in the 2016 presidential election by Deputy Attorney General Rod Rosenstein after the recusal of Attorney General Jeff Sessions. Mueller is currently leading an investigation into whether or not the Trump campaign colluded with the Kremlin, and is also reportedly examining whether President Donald Trump himself obstructed justice by asking former FBI Director James Comey to drop an investigation into the conduct of the then National Security Advisor, Michael Flynn.

Mueller has already subpoenaed President Trump’s election campaign for documents and emails from over a dozen top campaign officials that include several keywords related to Russia. Trump has repeatedly insisted that there was “no collusion” and has called the Russia investigations – also being conducted by multiple congressional panels – a “witch hunt”. Mueller is yet to conclude his investigations.

The process of approval of the would-be first Special Prosecutor for Ghana by parliament is to commence in the coming days and will complete the legal requirement for the establishment of the Office of the Special Prosecutor following its passage by Parliament on November 14, 2017.

The memorandum accompanying the Office of the Special Prosecutor Bill, 2017, submitted to parliament by the Attorney General and Minister of Justice opened as: “The purpose of the Bill is to establish the Office of the Special Prosecutor as a specialized agency to investigate specific cases of corruption involving public officers, and politically exposed persons in the performance of their functions as well as individuals in the private sector implicated in the commission of corruption and prosecute these offences on the authority of the Attorney-General.”

It continues that this “…it has become necessary in view of the institutional bottlenecks that impede the fight against corruption” as governance experts contend that “The monopoly of prosecutorial authority by an Attorney-General” militates against the use of “law enforcement and prosecution as a credible tool in the fight against corruption.” The Office is also expected to help reduce the workload on existing investigative agencies and, thereby, enhance their effectiveness.

“My hope and expectation are that the establishment of this Office is going to be an important step in our collective determination to root out corruption from the public life of our country. All of us know that it has been a major bane in the development of Ghana. And hopefully, this Office as it is intentioned, will make that contribution and make sure that public officials -past and present- are held to account to for their actions and that corrupt acts will no longer go without investigations…,” President Akufo-Addo said after signing the Bill on Tuesday, January 2, 2018.

The Act provides for the independence of the Office and insulates it “from the direction or control of a person or an authority in the performance of the functions of the Office.” The Special Prosecutor, who is to hold office on the same terms and conditions of service as a Justice of the Court of Appeal and whose tenure of office shall be a non-renewable tenure of seven years, is accountable to a governing board. The board “is required to formulate policies necessary for the achievement of the objects of the Office” and to ensure the “proper and effective performance of the functions of the Office”

According to the Act, the office is required to have four divisions namely the Administrative, Investigations, Prosecutions and Asset Recovery and Management Divisions for effective performance of its functions. It will also establish a Secretariat to manage the day to day administration of the Office, among others. It is permitted to engage the services of advisors and investigators. Its sources of funding will include budgetary allocations approved by Parliament, and donations and grants approved by the Minister of Finance. Individuals can lodge oral or written complaints with the Office. Public agencies can also make referrals to the Office for the necessary action to be taken.

The Act, inter alia, “vests the Special Prosecutor and authorised officers with powers of a police officer specified in the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) or any other law.” The Office is also endowed with the power to request a court “to issue a warrant authorising a police officer to enter the premises of a person or entity under investigation for purposes of searching and taking possession of documents relevant to the investigations being conducted by the Office.” In addition, the Office is “empowered to seize property reasonably suspected to be tainted with corruption or a corruption-related offence.”

A cursory look at the history of the establishment of the office of the Special Prosecutor in the US, where it originated, amply demonstrates that investigations have come back to sting those who set them in motion. Let us wait and see what happens in Ghana.