If there is a need to roll out the office of the special prosecutor immediately, then by constitutional requirement, it has to be an extension of the office of the Attorney General as prescribed by Article 88 (4) of Ghana’s constitution: All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.
If the office of the special prosecutor must be truly independent, then there must be a constitutional amendment for Article 88 (3): The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences
If the first option is chosen, the process of amending the constitution can be initiated while the special prosecutor works as an extension of the Attorney General’s office. The constitutional design below takes into account the polarized political climate of Ghana today. If too much leverage is given to the minority party in parliament, they would use that as a harassment tool against the majority. There are several ways of improving what is presented below.
I stand ready to explain the rationale for this specific design, and why this is the best we can hope for under the present circumstances.
1. Every four years after a president has been elected, a special prosecutor shall be appointed by parliament.
2. When the president is from the majority party in parliament, the president in consultation with the majority party leaders shall nominate 3 candidates for the office of Special Prosecutor. Parliament shall vote by simple majority to select two of the candidates, one of whom shall be elected Special Prosecutor. Parliament shall confirm one of the 2 candidates as special prosecutor by 2/3 majority of all members of parliament. After 2 consecutive voting without approval of one of the candidates, the majority party may choose one of the 2 candidates by unanimous consent.
3. When the president is not from the majority party in parliament, the president in consultation with the minority party leaders shall nominate 3 candidates for the office of Special Prosecutor. Parliament shall vote by simple majority to select two of the candidates, one of whom shall be elected Special Prosecutor. Parliament shall confirm one of the candidates as special prosecutor by 2/3 majority of all parliament. After 2 consecutive voting without approval of one of the candidates, the minority party may choose one of the 2 candidates by unanimous consent.
4. A candidate for the office of special prosecutor must be a practicing attorney or a judge who must have attained the age of 40 years and without a criminal record. No person shall serve more than two terms as special prosecutor. All remunerations and benefits of this office shall be similar to that of the Auditor General’s office.
5. The confirmed special prosecutor shall nominate two deputy special prosecutors within 14 days of confirmation who shall be approved by a simple majority of parliament no later than 30 days after the confirmation of the special prosecutor. A deputy special prosecutor shall meet the qualifications set out in section 4 of this instrument, and serves at the pleasure of the Special Prosecutor.
6. Once appointed, the special prosecutor and his deputies shall take an oath as follows:
I,......................................................................................having been appointed Special Prosecutor (SP) of the Republic of Ghana do solemnly swear in the name of Almighty God to bear true faith and allegiance to the Republic of Ghana, and to uphold and defend the Constitution of the Republic of Ghana against all enemies, foreign and domestic, and to faithfully discharge my duties as Special Prosecutor without malice, fear, or favor, so help me God.
7. The Office of Special Prosecutor shall investigate and prosecute all allegations of wrongdoings referred to it by the Majority or Minority Leaders of parliament or by the Attorney General. Referrals from parliament must be certified by a majority panel of 3 justices, appointed by the Chief Justice within 14 days of receipt of complaint. The panel shall deliberate in camera, and approve or deny the investigation within 10 days of empanelment. The Special Prosecutor may not investigate members of parliament who are not ministers.
8. To avoid conflict of interest, the Attorney General may refer investigations involving members of the ruling party to the Office of the Special Prosecutor and assist the Special Prosecutor with all relevant information. The budget of the Office of the Special Prosecutor shall be part of the budget of the Ministry of Justice, and may not be less than half, the budget of the Office of Attorney General.
9. The Special Prosecutor may petition the Chief Justice to subpoena documents from the executive branch including the offices of the President and the Attorney General. The Chief Justice shall assemble a committee to consider such requests. The committee shall include the Auditor General, the Accountant General, three justices of the Supreme Court, and in the case of the president, the Attorney General. The decision of the panel shall be by majority vote, and the Attorney General shall have no vote. After approval of a request by the panel, the Chief Justice shall order the office concerned to surrender the required documents within 30 days.
10. The Attorney General, Minister, or Chief Executive Officer of an agency shall be responsible for the requested documents from his unit, and parliamentary immunity shall not apply. If the request involves the office of the president, the Chief of Staff shall be responsible for providing the required documents. The Chief Justice may extend the deadline for submission of requested documents, but the extension may not exceed an additional 15 days. Failure to meet the deadline shall constitute contempt of court, and the head of the unit shall be liable for a jail term not to exceed 30 days for each contempt, until the requested documents are surrendered.
11. Information from any office surrendered to the Special Prosecutor must be handled with the strictest confidentiality, and shall not be disclosed to any other persons aside from the special prosecutor and his immediate deputies.
12. The Attorney General may petition the Chief Justice to remove the special prosecutor and or his deputies for indiscretion and or abuse of power. The Chief Justice shall, within 10 days of receipt of petition appoint a panel consisting of 3 justices of the Supreme Court to consider the petition based on the information provided. Allegations of wrong doing may include leaking of confidential information, undue politicization of investigations, and abuse of power. Confirmation of wrong doing may result in the removal of the Special Prosecutor and his deputies, even though he may not have personally participated in the wrong doing. Others in the Office of the Special Prosecutor so implicated may be removed from office. When the Special prosecutor is removed from office by the Chief Justice, he and his deputies may be held personally liable for defamation by persons unduly hurt.
13. Whenever the Chief Justice removes the Special Prosecutor from office, parliament shall appoint a new one as laid out in section 1 to 6 of this instrument, no later than 60 days of such removal. The new prosecutor may serve the remainder of the term and no more than one full term if so confirmed. The new Special Prosecutor shall nominate new deputies.
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