OFFICE OF THE SPECIAL PROSECUTOR: ITS RELEVANCE IN THE DEMOCRATIC DISPENSATION (PART ONE)

Most Ghanaians hailed the President of the Republic of Ghana after nominating one of the legal luminaries in relation to criminal and financial malfeasance cases dealt in court. He is noted for is vociferous fight against corruption in the country. The most important thing one ought to understand is the real functions of this office that powers the Special Prosecutor.

The Office of the Special Prosecutor to investigate and prosecute certain categories of cases and
allegations of corruption and other criminal wrongdoing, including those involving alleged
violations of the Public Procurement Act, 2003 (Act 663) and cases implicating public officers and politically exposed persons.

The establishment of the Office for the purpose of prosecuting corruption cases involving public officers and politically exposed persons in the performance of their functions will undoubtedly yield positive results in the number of corruption cases prosecuted than a multi-purpose or mixed mandate agency such as the Economic and Organised Crime Office.

Clause 1 of the Bill establishes the Office of the Special Prosecutor as a body corporate with perpetual succession. The object of the Office of the Special Prosecutor, as stated under clause 2, is to investigate and prosecute cases of corruption and corruption related offences to prevent corruption in the public sector and to recover the proceeds of corruption and corruption related offences.

The functions of the Office are provided for under clause 3. These include investigation and prosecution of cases of alleged corruption and corruption related offences under the Public Procurement Act, 2003 (Act 663) and investigate allegations of corruption and corruption related offences under the Criminal and Other Offences Act, 1960 (Act 29)  implicating public officers and politically exposed persons, prosecution of corruption and corruption related offences involving public officers and politically exposed persons on the authority of the Attorney-General, recovery of the proceeds of corruption and corruption related offences and co-operation and coordination with competent authorities and other relevant local and international agencies in the performance of its functions.

Clause 4 provides for the independence of the Office by insulating the Office from the direction or control of a person or an authority in the performance of the functions of the Office. Clause 5 deals with the governing body of the Office.

The membership of the Board, duties and liabilities of members of the Board and the tenure of office of the members of the Board are provided for under clauses 5, 6 and 7 respectively. 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. The Board is also required to meet on a quarterly basis. The chairperson is, however, obliged to convene extraordinary meetings at the request of not less than five members of the Board.

Matters before the Board are to be decided by a majority of the members present and voting and in the event of equality of votes, the person presiding at the meeting of the Board is to have a
casting vote.

Clause 9 is on disclosure of interest. A member of the Board who has an interest in a matter for consideration by the Board is required to disclose in writing the nature of that interest and is disqualified from participating in the deliberations of the Board in respect of that matter. The penalty for failure to disclose interest in a matter before the Board is revocation of the appointment of the member concerned in addition to recovery of the benefit derived by the member.

The standard provisions on establishment of committees of the Board and allowances for members of the Board and members of a Committee of the Board are provided for under clauses 10 and 11
Clause 13 provides that the Special Prosecutor is accountable to the Board in the performance of the functions under this Bill. The clause further confers power on the Special Prosecutor to delegate a function to an authorised officer. The Special Prosecutor is, however, not relieved of the ultimate responsibility for the performance of the delegated function. The removal of the Special Prosecutor from office is spelt out in clause 14 of the Bill.

The Office is required to have four Divisions namely, the Administrative Division, the Investigations Division, the Prosecutions Division and the Asset Recovery and Management Division for the effective performance of its functions. The Board may however establish additional Divisions that it considers necessary to enable the Office perform its functions, clause 18.

Clause 19 provides for the establishment of the Secretariat of the Office to manage the day to day administration of the Office and arrange meetings of the Board. The appointment of other staff necessary for the effective performance of the functions of the Office of the Special Prosecutor is required to be done by the President in accordance with article 195 of the Constitution.

Clause 26 deals with the procedure for the lodging of a complaint with the Office of the Special Prosecutor and referrals from a public agency. A person who has knowledge of the commission of corruption or a corruption related offence by a public officer or a politically exposed person may lodge a written or oral complaint to the Office of the Special Prosecutor for the necessary action to be taken.

Powers of the Office of the Special Prosecutor are provided for under clauses 27 to 29. Clause 27 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. Clause 28 deals with request for information by the Special Prosecutor or any other authorised officer. The Special Prosecutor is empowered to request the presence of a person or representative of an entity whose affairs are to be investigated or any other person the Special Prosecutor considers necessary to assist the Office with information relevant to a matter being investigated by the Office.

A person who appears before the Special Prosecutor is permitted to be represented by the counsel of the person at any stage of the process. Clause 29 confers power on the Special Prosecutor, on the authority of the 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 investigations being conducted by the Office.

The Office is permitted to take possession of documents for a period necessary for the investigation or trial and any proceedings subsequent to the trial. Furthermore, a person or entity from whom a document has been retrieved is entitled to apply to the Court within twenty-one days after the date of retrieval, for an order to set aside the search, removal or retrieval and for the restoration of the document.

Clauses 30 to 38 specify how the Office of the Special Prosecutor is required to dealwith proceeds of corruption and corruption related offences. An authorised officer of the Office or a police officer is empowered to seize property reasonably suspected to be tainted with corruption or a corruption related offence. The Special Prosecutor is obliged to prefer charges against the person from whom the property was seized within fourteen working days after the seizure. 

Furthermore, the Special Prosecutor is to apply to the Court for an order for the continued seizure of the property for a period of not more than three months at a time from the date of seizure and for a total period of not more than two years.

In the absence of any charges, the Special Prosecutor is to direct the authorised officer to release the seized property to the person from whom it was seized, clauses 30.  Clause 31 empowers the Special Prosecutor to search for tainted property. Clause 32 enumerates the circumstances under which an authorised officer is to exercise the powers of search and seizure under an emergency situation.

The provisions on search by a police officer under Part Two of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) apply under the Bill where an authorised officer has reasonable grounds to suspect that there is tainted property on land or in any premises, clause 33.


 COURTESY GLORIA AKUFFO

"When you rise to Eminence by Mreit, You are respected"

Comments

Post a Comment

Popular posts from this blog

ROAD TRAFFIC REGULATIONS, 2012 L.I. 2180

Image
Vehicular transport in Ghana has grown with economic activity and ever-increasing car ownership levels. The demand has increased because of the urban sprawl, the evolving services sector, lack of a reliable public transport system and the Ghanaian mentality which sees car ownership as a status symbol. With so many cars and trucks on our roads, the motor vehicle has become a fact of life for Ghanaians. But our reliance on them comes at a cost. Many have died or sustained serious injuries in traffic accidents. The Road Traffic Regulations of 2012 have detailed information from the acquisition of licences to interpretation.  Few of the provisions and sections would be quoted without further explanation. Production of driver’s licence (1) A person driving a motor vehicle shall, while driving the motor vehicle, carry that person’s original driver’s licence. (2) A person driving or in charge of a motor vehicle on a road shall, on the request by a police officer in uniform or...
Read more

THE POWER OF ATTORNEY ACT 1998, ACT 549

Image
A power of attorney may be defined as a document authorising a person to act on behalf of another person. The person authorising another to act on his behalf is known as the “principal or the “donor” and the person authorized to act on behalf of another person is known as the “attorney” or the “donee”. The effect of a power of Attorney is to confer power on a donee or in the case of more than one donee, the authority to perform acts which can lawfully be done by a donee or attorney. A power of attorney can be created for any purpose including for security purposes. A power of attorney is revocable at any time. Eligible Persons Any person can be authorized to act for and on behalf of another. They may include individuals, corporate bodies, trustees, trustee corporation just to mention a few. Creating a Valid Power of Attorney The law enumerates the requirements for creating a valid power of attorney. Under the law, the document creating the power of attorney shall be...
Read more

HAKIMI’S DIVORCE CASE, THE PROPERTIES AND SPOUSAL RIGHTS, THE CONTEXT OF THE LAW: GHANA

Image
Hakimi’s case, as others see it as an eye opener, have really revealed the intensions of both men and women as they have legally accepted to be together as husband and wife. However, the principle of “Till death do us apart”, is not fully considered as both parties may envisage divorce. This therefore draws the attention of both parties to secretly plan the aftermath of divorce. At this point, the concept of spousal property comes to play, who gets what after filing for divorce. Who gets what in divorce battles can be one of the most difficult decisions a judge will have to make. These proceedings tend to be acrimonious, as each spouse is bent on benefitting as much as possible from the property distribution to be made by the court. But the bases for such distributions have varied over the years. In the 1959 case of Quartey v. Martey [1959] GLR 377-383  the court stated that under customary law it is the duty of a man’s wife and children to assist him in the carrying out of the dut...
Read more