The Decoupling Theory

The call for an independent anti-corruption institution in Ghana outside the control of executive power became quite obvious as citizens and civil society caught on to a seeming reluctance by governments to prosecute corruption, particularly corrupt acts happening within their own administration. A popular prescription offered by civil society was to decouple the Attorney General and Minister of Justice (The Decoupling Theory). The stand-alone Attorney General is expected to be the people's lawyer, prosecuting corruption as a disinterested and enthusiastic public entity. The Minister of Justice retains the role of being the government's lawyer.

Enter The OSP

In 2018 the Office of the Special Prosecutor (OSP) was established pursuant to the passage of the Office of the Special Prosecutor Act, 2017 (Act 959). Clause 2 of Act 959 is quite explicit on the mandate of the OSP. In the wisdom of the lawmakers, the OSP is to deal with corruption and corruption-related offences via investigation, prosecution, asset recovery and prevention.

Act 959 empowers the OSP to exercise prosecutorial independence from the Attorney-General in corruption and corruption-related offences. It appears that this was the implemented alternative to the Decoupling Theory.

Here is a common misconception, even among think tanks, regarding the prosecutorial independence of the Office of the Special Prosecutor (OSP) from the Attorney General. Many mistakenly believe that the OSP, like the Police or EOCO, requires authorisation from the Attorney General to initiate prosecutions. However, this is not the case. The confusion likely stems from the language in the OSP Act, which states that the Office prosecutes "on the authority of the Attorney General." Unlike the Police or EOCO, the OSP does not require a fiat from the Attorney General to prosecute. The power to prosecute has already been delegated to the OSP under Article 88(4) of the Constitution. This delegation of authority is enshrined in law through the OSP Act. The only way the Attorney General could reclaim this delegated power would be to repeal the OSP Act.

This is why there have been calls to amend the Constitution to explicitly include the OSP, thereby insulating it from any potential attempts by future governments to undermine its independence.

After six years of operation, albeit with almost a year's hiatus (Martin Amidu's resignation in November 2020 to Kissi Agyebeng's appointment in August 2021), attempts to assess the effectiveness of the OSP cannot be begrudged. Any objective assessment of the effectiveness of the OSP must be undertaken relative to the mandate of the Office. The OSP's compliance with clause 3(3) of Act 959 means that there are published bi-annual reports from the Office from which one could source information for this assessment. Another relevant source of relevant information for this exercise would be the "Our Achievements" page of the OSP's website.

Investigations:

The OSP has received some 169 complaints between 2022 and June 2024. This data could be verified on the OSP's website: www.osp.gov.gh. The number of investigations concluded is 11, with 5 special reports published on these investigations (most recent being on the Airbus scandal in August 2024). Given these figures, it is doubtful if many of the 169 cases reported made it past preliminary investigation. Another plausible theory is whether the OSP has been sleeping on the job, as 11 concluded investigations out of 169 complaints represent only 6.5% of cases reported to the OSP. Assuming the former theory is right, the OSP may want to start reporting on the number of cases that did not cross the preliminary investigation threshold.

Recoveries:

The OSP appears to have made some significant progress on recoveries and savings. The Office reportedly has recovered a total of GHS3.9 million (specifically GHS 3,928,771.95) from its Government Payroll (GHS 2,854,144.80) and Customs (GHS 1,074,627.15) interventions. The Office has also saved the Government a sum of GHS 135.4 million (specifically GHS 135,477,106.83), from what the Government would have paid the ghost workers on its payroll (GHS 34,249,737.6) for 2024 had it not been for OSP intervention and the savings from bloated contracts and increase in revenues at Government institutions due to OSP intervention (GHS 101,227,369.23). The OSP has also seized GHS 516 million in counterfeit foreign currencies that would have been released into the Ghanaian economy and the concomitant inflation.

Prevention:

In January 2024, the Office launched the Youth against Corruption (YAC) initiative. The aim of this initiative is to educate young people about the impact of corruption and to encourage them to embrace transparency and accountability. From January to July 2024, the Office conducted in-person anti-corruption sessions at 16 secondary schools and universities, reaching 5,879 students. The YAC also engages young people through social media, with the handle "YAC_OSP" active on X (formerly known as Twitter) and Instagram. Through these platforms, the initiative has reached 901,284 people between January and June 2024.

Prosecutions:

Despite these efforts, some people judge the Office only by its prosecution mandate. This might be because many Ghanaians expected the Office to focus on this area. So far, the Office has not secured a conviction. However, it's important to consider the challenges faced by the Office under Kissi Agyebeng, who has been in charge for exactly three (3) years in what appears to be a politically hostile environment. The Special Prosecutor has spent considerable time defending his position (Petition to remove him from Office failed).

In Ghana, criminal investigations and trials typically take between three to five years. So, it might be too soon to criticise the Office for not having secured any convictions yet. The Office is currently prosecuting six people on trial in Accra, Tamale, and Kumasi. The cases are: The Republic v. Adjenim Boateng Adjei, The Republic v Sumaila Abdul Rahman, Stephen Yir-Eru Engmen, Patrick Seidu & Andrew Kuundaari (NDA Case) and The Republic v Alexander Kwabena Sarfo Kantanka.

In the case of The Republic v. Adjenim Boateng Adjei, the OSP filed fresh charges against Mr. Adjenim Boateng Adjei on 17th April 2024. He now faces eight (8) charges related to the misuse of public office for personal gain and manipulation of the procurement process to gain an unfair advantage in securing procurement contracts.

In The Republic v Sumaila Abdul Rahman, Stephen Yir-Eru Engmen, Patrick Seidu & Andrew Kuundaari (NDA procurement Case), the Court in Tamale ruled on 26^th April 2024 that the OSP has made a case against all accused persons on all the 11 charges The accused persons were therefore to open their defence at the next adjourned date.

In The Republic v Alexander Kwabena Sarfo Kantanka the Court in Kumasi ruled on 11^th July 2024 that Mr Alexander Kwabena Sarfo Kantanka should open his defence with respect to the 26 counts of corruption in respect of a public elections charge.

It would appear that despite no convictions secured yet, the OSP is making progress with its prosecutions.

Getting the Diagnosis Right

Many well-meaning Ghanaians and civil society organisations continue to assess the OSP and publish recommendations on how to further strengthen the Office. A reading of some of these publications however begs the question, are they getting the diagnosis right?

Decouple the Attorney General and Minister of Justice?

The call for a decoupling of the Attorney General and Minister of Justice position persists with the same rationale. Since the goal is to have an independent, prosecutorial agency that is solely focused on corruption and corruption-related offences, it would appear that the Office of the Special Prosecutor (OSP) ticks that box. The conversation should probably be now centred on how to entrench the independent prosecutorial powers of the OSP, seeing as this power is a spin-off of the Attorney General's power.

The Office of the Special Prosecutor (OSP) was birthed by an Act of Parliament - the Office of the Special Prosecutor Act, 2017 (Act 959). A repeal of this Act therefore threatens the existence of the Office. The OSP's survival stands to be most assured by a place in the Constitution of Ghana. Some of the OSP's anti-corruption peers such as the Commission on Human Rights and Administrative Justice (CHRAJ) and the Ghana Audit Service have perpetual tenure as their existence is guaranteed by the Constitution of Ghana, in articles 216 and 188, respectively. The same level of permanence ought to be given to the Office of the Special Prosecutor by amending the Constitution to include the OSP as a constitutional body.

Influence of the Executive on the OSP?

While the first Special Prosecutor did complain about an alleged attempt of the Executive to influence his work, the current Special Prosecutor, Mr Kissi Agyebeng, has not made such assertions. There is however a persistent diagnosis by some actors that "attempts to influence" are a challenge to the OSP. If it is a challenge, the OSP has done more than enough to convince that such influence is not a factor in their operations. The recent investigative report on the Airbus Scandal is a demonstration of this. An investigative and prosecutorial agency being influenced by the Executive would not have produced such findings or come to public with it at the time the OSP did. It would appear then that talk about an Executive influence on the OSP is unfounded. In any case unless the laws subjugate an institution to the direction of the Executive, it is the character of the leadership that is most important in determining if the institution will be pliable to the Executive.

Stronger Sanctions for Corruption?

It used to be the case that corruption was categorized in the laws of Ghana as a misdemeanour, attracting a penalty of up to 3 years imprisonment. The case was made by civil society and other actors that the country's sanction for corruption was not steep enough to deter potential perpetrators. However, the Criminal Offences Act has been amended. Section 239 of the amended Criminal Offences (Amendment) Act, 2020 (Act 1034) provides that

239.

1. A public officer or juror shall not commit corruption or wilful oppression or extortion in respect of the duties of office.
2. A person shall not corrupt any other person in respect of a duty as a public officer or juror.
3. A person who contravenes subsection (1) or (2) commits an offence and is liable on summary conviction to a term of imprisonment of not less than twelve years and not more than twenty-five years." [Emphasis mine]

Ghana's 12-25 years imprisonment term for corruption has to be among the highest penalties for corruption globally. Perhaps, the reason why some people think the country does not have steep sanctions for corruption is because there have not been any convictions on corruption charges for quite a long time.

To make the OSP more effective in combating corruption, several changes to the OSP Act are needed. One key amendment should be the introduction of a reverse burden of proof for corruption offences, similar to the Anti-Money Laundering Act. This would mean that prosecutors only need to prove that a person's lawful income doesn't match their acquired assets. Once this is established, the burden would shift to the individual to justify how they obtained their wealth.

The scope of corruption offences addressed by the OSP should also be broadened to align with global definitions as outlined by the United Nations Convention against Corruption (UNCAC).

This would include offences such as money laundering, tax evasion, conflict of interest, and influence peddling, allowing the OSP to investigate these as corruption-related offences, thus strengthening its authority.

Additionally, any new laws or amendments, such as the Code of Conduct bill, should recognize the OSP as the primary anti-corruption agency responsible for investigating and prosecuting breaches by executive officials, with CHRAJ handling the civil aspects.

Another critical issue facing the OSP is adequate funding. The Office needs sufficient resources to acquire essential investigative and prosecutorial tools, such as digital systems, interview rooms, forensic and cybersecurity labs, and holding cells. It cannot rely on the limited annual budget typically allocated to established agencies, as it is still a new institution requiring significant one-time expenditures to build its capabilities. While there may be other areas for improvement, the need for proper funding is paramount.

The Office of the Special Prosecutor appears to have only one fandom -civil society (including citizens). That the OSP could do better is not in contention. However, the solutions being proffered to take the OSP's work further need to align with an accurate diagnosis of the Office's challenges.