The Office of Special Prosecutor Bill Is Constitutionally Sound

There is this debate going on in the media about the Office of the Special Prosecutor Bill and I find it quite interesting that the argument being made suggests that the Attorney-General should have laid a constitutional instrument before Parliament instead of the Bill, which will eventually become an Act of Parliament. There is also the question of whether or not the Attorney-General can delegate her responsibility to initiate and conduct prosecution of criminal offences. And in response to this question, some lawyers have suggested that the delegation of this responsibility can only be done by a constitutional amendment.

First of all, I think it is important to visit Article 88, which creates the Office of the Attorney-General, who is a Minister of State and the principal legal adviser to the Government. Article 88(3) gives the Attorney-General the responsibility to initiate and conduct prosecution of criminal offences. The article states specifically that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

However, right after Article 88(3), the Constitution permits other persons to prosecute offences in the name of the Republic, provided that the Attorney-General authorises them to do so in accordance with law. The said Article 88(4) states as follows: “All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.” What this means is that any person who has been authorised by the Attorney-General in accordance with any law in Ghana can prosecute offences in the name of the Republic of Ghana. I think Article 88(4) answers the question of whether or not the Attorney-General can delegate the responsibility to initiate and prosecute criminal offences.

The laws of Ghana are set out in Article 11(1) of the Constitution, which provides as follows: “The laws of Ghana shall comprise (a) this Constitution; (b) enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; (d) the existing law; and (e) the common law.” The current state of the Office of Special Prosecutor Bill will fall under Article 11(1)(b) of the Constitution when it receives Presidential Assent. The argument propounded by some lawyers is that, the Office of the Special Prosecutor should be created under Article 11(1)(c). In other words, the Office of Special Prosecutor should be created by a constitutional instrument.

I disagree with that argument; simply because, whenever the Constitution gives a power pursuant to which a constitutional instrument may be made, it says so explicitly. For instance, in the case of the Electoral Commission, the Constitution states specifically at Article 51 that “The Electoral Commission shall by constitutional instrument, make regulations for the effective performance of its functions under this Constitution or any other law, and in particular, for the registration of voters, the conduct of public elections and referenda, including provision for voting by proxy.”

Again, in the case of the Rules of Court Committee, Article 157(2) states specifically that “The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.” And finally, in respect of the Auditor-General’s power to disallow and surcharge, Article 187(10) states that “The Rules of Court Committee may, by constitutional instrument, make Rules for Court for the purposes of clause (9) of this article.”

As far as Article 88 is concerned, the Attorney-General has not been given any power to make constitutional instruments. Instead, the Attorney-General may authorise another person to prosecute offences in the name of the Republic of Ghana in accordance with any law. The law pursuant to which the Attorney-General may authorise the Special Prosecutor to prosecute cases of corruption involving public officers and political office holders is the Office of the Special Prosecutor Bill, which when enacted will become an Act of Parliament. Indeed, the first paragraph of the Memorandum states as follows: “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 person 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.”

In my opinion, the Bill satisfies Article 88(4) of the Constitution and other provisions thereunder, and I do not see the constitutional quagmire that some lawyers and other social commentators are raising.

On another note, I think it is worth mentioning that the Office of the Special Prosecutor Bill is very clear in the appointment process of the Special Prosecutor. Firstly, the Bill is sponsored by the Attorney-General, who is authorising the Special Prosecutor to prosecute corruption cases in the name of the Republic of Ghana. Secondly, the Attorney-General nominates Special Prosecutor and then the President appoints the Special Prosecutor subject to a majority of all Members of Parliament (meaning at least 138 Members of Parliament) must approve the Attorney-General’s nomination before the President can appoint. I think that the involvement of Members of Parliament in the creating of the Office of the Special Prosecutor is so key to establishing its independence from the very beginning.

Sinning Without Knowing

It is possible to be sinning and not even know that you are sinning. And the fact that you do not know that you are sinning does not mean that you will be exempted from the consequences of the sin. What we need is God’s grace to live and act with integrity, and innocence at all times so that God Himself will step into a situation when we are about to sin unknowingly.

In the case of Abraham and Abimelech, Abraham lied to Abimelech by telling him that Sarah was his sister. Abimelech took Sarah in with him but before he could do anything to Sarah, God appeared to him in a dream and warned him. In the dream, Abimelech told God that he had integrity in his heart and was acting innocently at all times. God responded by saying that he knew Abimelech had integrity in his heart that is why He stopped Him from sinning. Genesis 20:6 (NKJV) states:

And God said to him in a dream, “Yes, I know that you did this in the integrity of your heart. For I also withheld you from sinning against Me; therefore I did not let you touch her.

How many of us can God say something like that about the state of our hearts? We must work consciously to have integrity in our heart so that God can be merciful enough to save us from sinning without knowing that we are sinning. God then told Abimelech to restore Sarah so that Abraham could pray for him because Abraham was a prophet. Genesis 20:7 (NKJV) states:

Now therefore, restore the man’s wife; for he is a prophet, and he will pray for you and you shall live. But if you do not restore her, know that you shall surely die, you and all who are yours.

Oh Lord, help me to maintain a heart of integrity, pleasing to you always. In the name of Jesus, Amen.

Lent 2017 – Day Forty

A valuable lesson as we end the Lenten season. We should not try to impress others. The only person we should be concerned about impressing is our Father in heaven. We should not be selfish, but generous especially to those who have nothing. We should give without expecting anything in return. We should be humble and not proud, and think of others as better than ourselves. We should live our lives by these principles – this is the resurrected life.

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Lent 2017 – Day Thirty-Nine

This verse serves as a good reminder as we draw closer to the end of the Lenten season. Our Lord Jesus is the resurrection and the life, and anyone who believes in Him will live. This is the whole point of the Easter season. Jesus came and died for us so that we may be reconciled to the Father. However, reconciliation can only take place when we believe in Jesus as the resurrection and the life.

Our faith in Jesus as our source of salvation opens the door to eternal life.

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Lent 2017 – Day Thirty-Eight

The love that God showed to mankind cannot be understood by our normal human minds. While we were still sinners – in other words, while we rejected God and wanted to do what we wanted to do on our own – He sent His only son to come and die for us so that we can be saved and reconciled to Him. That is the greatest demonstration of love. But we should not be surprised because the Scriptures tell us that God is love. Therefore, if love is His very nature then showing love to such extent will be part of His nature.

Let us embrace the love that our Father has shown to us and demonstrate similar love towards our brothers and sisters on the earth.

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