THE OSP V. KEN OFORI ATTA: THE FOREPLAY AND BEDMATICS WITH THE LAW

The Office of the Special Prosecutor (OSP), has declared former Finance Minister, Ken Ofori-Atta, a wanted fugitive in connection with multiple corruption-related investigations. This declaration has sparked significant legal debate, regarding the OSP's authority and the broader legal implications of such an action.

On February 12, 2025, the OSP announced that Mr. Ofori-Atta was wanted for questioning in several high-profile cases, including: the Strategic Mobilization-GRA Contract, termination of the ECG-GXC Contract, payments related to the National Cathedral, and the Ambulance Procurement Contract.

The OSP stated that Mr. Ofori-Atta had failed to honor multiple invitations for questioning and had left the country indefinitely, citing medical reasons. The OSP expressed skepticism regarding the authenticity of the medical documentation provided and declared him a fugitive from justice.

Legal Implications

The OSP's declaration has been met with criticism from various legal experts and political figures who question the legality of such a move without a court order.

To start with some practitioners stated that the declaration lacks Judicial Authorization. Some legal practitioners argue that the OSP does not possess the unilateral power to declare an individual wanted without obtaining a warrant from a court. They contend that such actions should be sanctioned by the judiciary to ensure due process is followed.

Another concern raised is the breach of procedural jurisprudence. Critics emphasize that the proper legal procedure involves the OSP applying to a court for an arrest warrant if an individual fails to comply with investigative processes. By bypassing this step, the OSP's actions may be deemed procedurally improper.

Precedents

The controversy centres around the interpretation of the OSP's mandates, as outlined in the law. The Office of the Special Prosecutor Act, 2017 (Act 959), establishes the OSP's functions and powers, including the investigation and prosecution of corruption-related offenses. However, the Act does not explicitly grant the OSP the authority to declare individuals as fugitives without judicial oversight.

In Ghana, law enforcement agencies are generally required to obtain court-issued warrants before declaring individuals wanted. This procedure ensures adherence to due process and the protection of individual rights.

A pertinent case highlighting the importance of adhering to proper warrant procedures is the case of the Republic v. Baaba Sam. In January 2025, an arrest warrant was issued for Ms. Sam in connection with an alleged unlawful child removal. However, upon scrutiny, it was revealed that the warrant lacked proper judicial authorization and was procured through questionable means. Consequently, the District Court set aside the "illegal" arrest warrant, emphasizing the critical need for law enforcement agencies to follow due process and obtain valid court-issued warrants before declaring individuals wanted.

Legal Framework

The Criminal Procedure Code, 1960 (Act 30) outlines the procedures for arrests and the issuance of warrants in Ghana. Key provisions include:

Section 75: A warrant of arrest may be directed to one or more police officers, or to any other person if immediate execution is necessary and no police officer is available.

Section 77: The executing officer must bring the arrested person before the court without unnecessary delay.

Section 79: When a warrant is to be executed outside the jurisdiction of the issuing court, it may be forwarded to a magistrate within the jurisdiction where it is to be executed for endorsement.

The legal framework in Ghana mandates that law enforcement agencies secure court-issued warrants prior to declaring individuals wanted. This process upholds the principles of due process and safeguards individual rights as enshrined in Chapter 5 of the Constitution, 1992. Deviations from this procedure, as evidenced in the case of Ms. Baaba Sam, can lead to legal challenges and the nullification of improperly issued warrants. In contrast, this situation underscores the importance of balancing effective anti-corruption efforts with the preservation of legal rights and due process. As the discourse continues, it is imperative for the OSP and other relevant authorities to clarify the legal frameworks governing such declarations to ensure actions are both effective and lawful.

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