The Office of Special Prosecutor

Once again, the Office of Special Prosecutor (OSP) is the topic of intense debate among citizens, triggered by a high court decision.

In essence, the court is of the opinion that the OSP has no power to prosecute cases without the express permission of the Attorney General as per Article 88(4) of the Constitution.

The debate intensified when the Deputy Attorney, in a social media write-up, stated that – a) it had no intention of disobeying the court order; and b) it was ready to grant the OSP permission upon request.

The debate has been interesting to observe. The constitutional and political arguments show a public divided over the Office of Special Prosecutor.

There is also the added dimension of whether the office, with all the resources invested in it, can demonstrate with tangible results that it is successfully fighting corruption. 

The debate will not be settled anytime soon.

It has, however, raised the stakes of an impending suit before the Supreme Court on this very matter of the constitutionality of the office and whether the law, as written, offends Article 88(4) of the Constitution.

At this point, we must wait to see how the court decides.

But I have no doubt that after the court decides, the debate over this office, as an anti-corruption tool, will not end.

Fight against corruption

I want to believe that, as a country, we take the issue of corruption very seriously.

After all, in every election, apart from the state of the economy, corruption is the other issue that features very prominently.

During campaigns, candidates promise a renewed fight against corruption and especially if in opposition, cast their ruling party colleagues as corrupt. 

Citizens also give the impression that the issue of corruption is of great importance to them.

After all, they regularly express moral outrage publicly when allegations of corruption are brought to light. 

In addition, their perception of deteriorating institutional corruption is captured very clearly across ten rounds of the Afrobarometer survey. 

More importantly, their evaluation of the fight against corruption shows great dissatisfaction.

Between round 1 (1999) and round 4 (2008) of the survey, no more than 22 per cent of Ghanaians rated how the government was handling the fight against corruption as “very well.”

By Round 10 (2024), only two per cent rated the fight as being handled “very well.”

Against this backdrop, my sincere hope is that even the legitimate questions we raise about the Office of the Special Prosecutor, and its leadership, have little to do with our disinterest in fighting corruption, but everything to do with our interest in seeing the fruits of the investment made to set up and maintain the office.

Because it will be a great travesty if our sentiments about the office are driven by our embrace of corruption as an acceptable hazard of politics and governance.

Getting out of fix

The ultimate fix is a constitutional one, which the constitutional review committee has recommended.

It is a difficult road, given we are dealing with an entrenched provision of the constitution.

However, as I shared in the previous section, if we truly are committed to fighting corruption, then enough citizens must show up to back this worthy cause.

If the Supreme Court’s decision upholds the OSP Act, I will still want to see a constitutional fix so that there are no lingering ambiguities about the office.

Administratively, the easier fix will be the Office of Special Prosecutor simply requesting approval to prosecute from the Attorney General whenever it believes there is enough evidence of alleged acts of corruption. I, however, have strong reservations about this fix, without prejudice against any Attorney General.

The argument often repeated as to the need for a special prosecutor was independence.

I cannot count the number of times the argument was advanced that an Attorney General, by virtue of being part of a government, may find it difficult to prosecute members of his or her own government.

Therefore, for a strong fight against corruption, especially in-regime acts of corruption, an entity and person with independence is needed.

If this concern remains, then how does the administrative fix of seeking permission from the Attorney General address it?

In my humble opinion, it does not.

Let’s reflect on the history of nolle prosequi, exercised by attorney generals and realise that this administrative fix is not the most viable option available to a special prosecutor.

Those who promised and delivered on the OSP at a point became disillusioned about it, my observation.

Those who have inherited it appear to have their own reservations about it.

Between these two sentiments, I hope we can build consensus about the need for the office and take steps to create the kind of Office of Special Prosecutor we desire.

The writer is the Project Director, Democracy Project.