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Martin Amidu: Ghanaians need to wake up before the OSP becomes an unconstitutional unruly monster

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Ghanaians ought to wake up to the fact that the Office of the Special Prosecutor (OSP) is gradually being turned by Kissi Agyebeng, the Special Prosecutor, into an inquisitorial institution and not the anti-corruption law enforcement and prosecutorial office envisaged under sections 2 and 3 of the Office of the Special Prosecutor Act, 2017 (Act 959). The further press release issued by the Special Prosecutor dated 5 September 2023 titled: “Cecilia Abena Dapaah” allegedly freezing her bank accounts and investments again, (part of which I quote hereunder), gives grave concern and indicates the inquisitorial approach to law enforcement which is becoming an unconstitutional hallmark of Mr. Kissi Agyebeng’s OSP: 

“Consequently, subsequent to the indicated ruling and order of the High Court and the compliance by the OSP with said ruling and order, the Special Prosecutor considers that freezing the bank accounts and investments of Ms. Dapaah is necessary to facilitate the ongoing investigation. Therefore, the Special Prosecutor has invoked his statutory power under section 38(1) of Act 959 and regulation 19(1) of L.I. 2374 by directing the freezing of the bank accounts and investments of Ms. Dapaah effective 5 September 2023.” 

The Special Prosecutor is not empowered under the provisions of sections 2 and 3 of Act 959 to invoke his statutory power under section 38(1) of Act 959 and regulation 19(1) of L.I. 2374 by directing the freezing of the bank accounts and investments of Ms. Dapaah effective 5 September 2023 without first satisfying the conditions precedent under sections 2 (a) and 3 (a) (b) and (c) of Act 959. The OSP has to do this by establishing first and foremost that there exists verifiable facts grounding a reasonable suspicion that the assets and bank accounts of any citizen or suspect, such as Cecilia Dapaah, were the fruits of one of the eleven corruption offences specified in section 79 of Act 959. 

The decision of the High Court, Accra, made on August 31, 2023, refusing the application of the OSP to confirm the administrative freezing of the assets and bank accounts of Cecilia Dapaah supports the assertion that Mr Kissi Agyebeng had broken all investigatory and prosecutorial morality, ethics, and principles when he chose to investigate and prosecute Cecilia Dapaah in the media and stir up public opprobrium against her.

Mr Kissi Agyebeng undertook the media trial in the nature of an unlawful investigation without disclosing to the public as a matter of right whether she is suspected of the corruption offence of abuse of public office for profit contrary to section 179C, dishonestly receiving property contrary to section 146, extortion of property from any other person by means of threat contrary to section 151, corruption of and by public officers contrary to section 239, accepting or giving bribe to influence a public officer or juror contrary to section 252, all of which are offences apportioned to the OSP from the Criminal Offences Act, 1960 (Act 29), or any other offence specified under section 79 of Act 959. 

After abusing the guaranteed rights of Cecilia Dapaah under Act 959 and Article 14 on the rights of an arrested person to be informed of the offence for which he or she is arrested, and Article 19 on the presumption of innocence and fair trial under the 1992 Constitution, Kissi Agyebeng is by his press release dated 5 September 2023 seeking a second bite at the cherry. 

Unfortunately, Kissi Agyebeng’s latest press release continues to pull the wool over the eyes of the public by merely referring to the investigation of corruption and corruption-related offences as though Act 959 does not circumscribe the type of corruption offences the OSP may exclusively and specifically investigate and prosecute. 

The Supreme Court decision in the case of the Republic v Attorney-General, Ex Parte Mensa Bonsu & Others, which I personally prosecuted as the then Deputy Attorney-General, serves as a reminder to the media and the public not to run commentaries on judgments of the courts without first reading the certified true judgment as finally issued by the registry of the Court.

I was, therefore, waiting to have a certified true copy of the judgment of the High Court refusing to confirm the administrative freezing of Cecilia Dapaah’s assets to enable me to make a reasoned determination whether the decision dealt with the conditions precedent to the OSP having jurisdiction to determine whether any property may be classified as tainted property as a result of investigations pursuant to section 2(a) of Act 959 dealing with the principal object of the OSP to “(a) investigate and prosecute alleged corruption or suspected corruption and corruption-related offences.”

I was hoping that the High Court might have made a definitive determination first and foremost that the OSP was indeed investigating Cecilia Dapaah on reasonable suspicion of having committed or about to commit one of the eleven (11) specified corruption offences defined and interpreted in section 79 of Act 959 such as abuse of public office for profit or some other corruption offence as a condition precedent. 

I doubt whether at the time Kissi Agyebeng, the Special Prosecutor, issued his press release dated 31 August 2023 he had himself read the certified true copy of the ruling of the High Court, Accra, declining his application for an order confirming his administrative freezing of the assets and bank accounts of Cecilia Dapaah. The OSP’s press release of 31 August 2023 appears to be a clearly arrogant disrespect for the ruling of the High Court which no reasonably experienced law enforcement agency determined to uphold the integrity of the judiciary and criminal justice administration would have issued for the sole purpose of courting cheap popularity with the media and public. 

I am not going to comment on a decision of the High Court that I have not seen and read in its entirety because in my public service career of more than a decade as Deputy Attorney-General, Attorney-General, and Special Prosecutor I learnt the cardinal principle of impartial and independent exercise of investigatory and prosecutorial authority not to comment on decisions of the courts without first reading the certified full judgment or ruling of the Court. 

In refusing the application of the OSP to confirm the freezing of the assets and investments of Cecilia Dapaah, the High Court made consequential orders. In my experience as an investigator and prosecutor with decades of experience, I know that the orders made by the Court have first to be drawn up and signed by the High Court. The order(s) of the court as drawn up and signed constitutes the authority to defreeze and return the frozen assets which the OSP will forward to the Bank as authority to obey the order of the Court pursuant to his aborted administrative freezing of those accounts.

The OSP’s press release dated September 5, 2023, does not state how the OSP defroze the bank accounts and assets ordered by the High Court. Did Kissi Agyebeng return the money seized from Cecilia Dapaah’s residence back to her and immediately retook possession of them as technically having obeyed the order of the Court and did he serve the order of the Court ordering the refusal to confirm the administrative freeze of those assets on the banks concerned?

The foregoing are all issues that arise from Kissi Agyebeng’s press release dated 5 September 2023 which need a critical examination by every Ghanaian interested in the rule of law and protecting the rights of suspects from the inquisitorial and prosecutorial tendencies being unconstitutionally unleashed on citizens by the OSP. Cecilia Dapaah’s lawyers are in a better position to ensure that the OSP is not in contempt of court by its latest press release. 

It is important for the citizen to understand and appreciate the fact that the OSP has no jurisdiction to deal with any “tainted property” except property which is tainted as a result of being “(b) derived, obtained or realized as a result of the commission of a corruption or corruption-related offence” as stipulated in the 11 offence as defined under section79 of Act 959. There is no “tainted property” over which the OSP has any power to investigate which is not interlinked and interwoven with or having been “(a) used in the commission of an offence”, which in this case means a corruption offence. There is no independent offence known as “tainted property” for which the OSP has statutory authority under section 79 of Act 959 to go about arresting, searching the premises of citizens without a warrant from a court and freezing them without a prior reasonable ground of suspicion of the commission one of the eleven specified corruption offences. 

The Economic and Organized Crime Office, the Ghana Police Service, the Financial Intelligence Center, the National Intelligence Bureau, and other law enforcement agencies have jurisdiction for dealing with other tainted property in relation to the investigation of crime that falls within their ambit. This explains why, I was waiting to read the certified ruling of the High Court to determine whether the precondition for the OSP to classify the assets and bank accounts of Cecilia Dapaah as tainted property as a result of a specified corruption offence had been met before her arrest, interrogation, search, seizure of her properties or those of her husband, and subsequently freeing them. 

I have followed the developments of Cecilia Dapaah’s case since the beginning of the public lynching hysteria generated by the OSP against her in spite of the presumption of innocence under the Constitution. Kissi Agyebeng has continued contrary to sections 2(a) and 79 of Act 959 to whip up public sentiment against the suspect by saying that he is investigating her for corruption and corruption-related offences as though section 79 which expressly limits his powers does not exist.

Indeed the OSP, during my tenure as the founding Special Prosecutor, obtained a number of confirmation orders from the courts pursuant to the administrative freezing of assets without the funfair and hysterical media publicity as has now become the unethical norm infringing the presumption of innocence of citizens, and the records are available in the High Court and the OSP to attest to these. 

It is imperative to educate the public that the Office of the Special Prosecutor Act, 2017 (Act 959) narrowly defines “corruption and corruption-related offences” “to mean”, (as distinct from the expansive word “to include”) offences under: 

  1. Section 146, 151, 179C, 239, 252, 253, 254, 256, 258 and 260 of the Criminal Offence Act, 1960 (Act 29); 
  2. Section 92 (2) of the Public Procurement Act, 2003 (Act 663); and 
  3. Existing offences under enactments arising out of or consequent to offences referred to in paragraphs (a) and (b); 

The foregoing is the only specified corruption and corruption-related offences for which the OSP has jurisdiction to investigate and prosecute under section 2 (a) of its objects and amplified by its functions under section 3 (a), (b) and (c) of Act 959. The powers and authorities of the OSP provided for from sections 28 through to 49 of Act 959 can only be lawfully exercised when the OSP has met the preconditions of being seized with an investigation under sections 2(a) and 3(a) (b) and (c) of Act 959. 

Ghanaians need to seriously appreciate the circumscribed limits of the power and authority of the OSP to investigate specified corruption and corruption-related offences. I, therefore, consider it useful to briefly amplify the corruption and corruption-related offences apportioned for investigation and prosecution by the OSP to bring out the extent of the role of the OSP in investigating and prosecuting corruption offences. The following are the offences created under sections 2(a) and 79 of Act 959: 

  1. Section 146 deals with dishonestly receiving property that a person knows to have been obtained or appropriated by a punishable criminal offence. 
  2. Section 151 deals with persons who extorts property from any other person by means of threat. 
  3. Section 179C deals with using public office for private profit as a criminal offence. 
  4. Section 239 deals with corruption of and by public officers. 
  5. Section 252 deals with accepting or giving bribes to influence a public officer or juror. 
  6. Section 253 deals with corrupt promise by judicial officer or juror. 
  7. Section 254 deals with corrupt selection of juror. 
  8. Section 256 deals with corruption, intimidation, and personation in respect of election. 
  9. Section 258 deals with falsification of returns at election, and 
  10. Section 260 deals with withholding public money by public officer. 
  11. Section 92(2) of the Public Procurement Act, 2003 (Act 663) deals with offences constituted under Act 663 for which jurisdiction is given to the Office. Surprisingly it fails to mention Section 93 dealing with corrupt practices. 

The jurisdiction of the OSP is strictly provided for under the Act. Kissi Agyebeng cannot, therefore turn the OSP into a knight-errant roaming about arresting and searching the premises of citizens for tainted property based on its own ideals of what constitutes a corruption or corruption-related offence which is not rooted under section 79 of Act 959. When I was the founding Special Prosecutor, I had the occasion to make a more detailed exposition on the limited jurisdiction of the OSP imposed under section 79 of Act 959 in a lecture I delivered at the 2019 Annual Internal Auditors Association Conference on, “The role of the Office of the Special Prosecutor in the Protection of National Resources” dated 12 August 2019 which may be useful for lawyers and the interested public wishing to use lawfare to restrain the unconstitutional monster Kissi Agyebeng is attempting to turn the OSP into. See – THE ROLE OF THE OSP IN PROTECTING NATIONAL RESOURCES — MARTIN AMIDU SPEAKS 

Mr. Kissi Agyebeng without any reasonable grounds to suspect Cecilia Dapaah of having committed or about to commit a corruption or corruption-related offence such as abuse of 5 

public office for profit or other corruption offence abused his authority by arresting her and searching the premises of her husband and her fishing for evidence of a corruption offence amidst media funfair and publicity. The High Court on 31 August 2023 refused to permit Kissi Agyebeng to profit from his unlawful fishing expedition in search of evidence to investigate and prosecute the suspect.

The OSP under Kissi Agyebeng now turns around by his press release dated 5 September 2023 to depend upon the evidence he obtained by unlawful means for which his application for confirmation was refused by the High Court to purport to designate the subject matter of his failed application to the Court as tainted property again under section 32(1) (a) of Act 959 without stating the specific corruption offence he is investigating against the suspect and how the property became tainted property. 

The absence of the certified true copy of the High Court decision dated 31 August 2023 constrains my ability to make a detailed and comprehensive critique of what appears to be an arbitrary and unconstitutional conduct of the OSP. Suffice it, however, to say that the maintenance of law and order through law enforcement institutions under any regime of the rule of law and democratic governance is anchored upon the independence, impartiality, and the highest standards of ethics and morality in the investigation of every citizen suspected of the commission of specified crimes prescribed by law. 

The unlawful and unconstitutional conduct of Kissi Agyebeng and his OSP thus far appears to make it ripe for someone to consider whether, on the facts, the law, and the Constitution, an order of prohibition ought not to be obtained from the High Court against the Special Prosecutor to enable a different impartial law enforcement institution to handle Cecilia Dapaah’s case, if there is indeed a case to be made out. 

I do not remember ever meeting or knowing Cecilia Dapaah or her husband. But like every citizen of Ghana, she is entitled to a fair and impartial investigation in accordance with the Constitution and laws of Ghana. Her innocence or guilt should be determined by a court of law and not a court of public opinion as the Special Prosecutor has consistently done even with his latest press release that also seeks to pressurise the High Court to confirm the latest administrative freezing of her assets and investments when he makes his next application for confirmation.

Kissi Agyebeng appears to have personalized and politicised the investigation of the Cecilia Dapaah case as though he has a hidden agenda to use her to prove his competence as a Special Prosecutor. Should Ghanaians allow Kissi Agyebeng to turn the OSP into an unruly unconstitutional monster no citizen will be free from his inquisitorial and prosecutorial tentacles. Kissi Agyebeng used the OSP to violate the constitutional rights of those citizens involved in the Labianca case by making unlawful findings and seizures of assets without any decision or order of a court of law; he abused Professor Frimpong-Boateng’s right to the presumption of innocence; and it is now the turn of Cecilia Dapaah. It will be YOU the next time, should we all keep quiet. 

Every citizen suspected of the commission of any crime prescribed by law is entitled not only to his privacy but his constitutional right to be presumed innocent until found guilty by a court of competent jurisdiction. Consequently, any law enforcement institution that unlawfully invades the privacy and tramples on the presumption of innocence of citizens suspected of the commission of specified criminal offences prescribed by law, personalises the investigatory process of determining whether there is indeed a reasonable ground for suspicion that a citizen has committed the specified offence or that the law enforcement 6 

process has been turned into an inquisitorial determination of guilt before the court of public opinion instead of a court of law. 

Martin A. B. K. Amidu 

6 September 2023 

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