Coincidence:

I don’t believe in coincidences. On the same day that it was announced by the Chief Justice that Martin Amidu’s petition lacks merit, a former NPP MP running for independent office in 2024 (Kuranchie) refiled his writ with the Supreme Court.

This echoes what recently happened in Slovakia in March 2024, where the President was successful in dismantling the OSP office, which had gone after a very close ally of his. He therefore reformed the Criminal Code despite massive public protests and criticism by the European Commission and the European Public Prosecutor Office and, in effect, reassigned all of Slovakia’s OSP cases to the various departments of the General Prosecutor’s Office in Slovakia. I believe that this writ is a backdoor way for the government to dismantle the OSP without
drawing too much attention to itself.

Writ:

Kuranchie’s writ before the Supreme Court declares the OSP’s powers of arrest, detention, freezing, and seizure as unlawful and abusive. Additionally, it seeks to place the OSP’s prosecretory powers under the direct control of the AG, similar to EOCO, the police, and the NIB.

Opinion:

Should the Supreme Court say that the establishment of the OSP is unconstitutional and therefore unlawful, it would be a great attack on the rule of law and principles of our democratic society because it would lead to the dismantling of the OSP in order to stop all investigations of current cases, which would be absorbed by the AG’s department.

Function of OSP:

We have to remember that the OSP is an independent, specialized anti-corruption unit in Ghana in pursuance of the UN Convention against corruption. The objective of the OSP is to investigate and prosecute specialized cases of alleged or suspected corruption and corruption-related offences in the public and private sectors, recover the proceeds of such acts by disgorging illicit and unexplained wealth and take steps to prevent corruption.

What the writ to the Supreme Court specifically says about why the OSP is unconstitutional and should be disbanded:

The writ before the Supreme Court, in part, lays out a case that:

(Paras. 8 and 9) By the constitution, no person or authority shall raise a police complaint, and the OSP provisions do so. (Paragraph 10) Sections of the OSP Act that relate to requests for information, the power to search and take possession of documents, the requirements for making a production order, and the search and taking possession of documents are contrary to constitutional provisions for respect for human dignity and citizens right to a fair trial.

(para 11) Sections of the OSP Act that relate to the Seizure of tainted property
CONTRARY to constitutional provisions for the protection of privacy of home and other property; respect for human dignity; fair trial; and the fact that the constitution explicitly states that the judicial powers of Ghana shall be vested in the judiciary.

(para 12) Sections of the OSP Act that relate to the seizure of tainted property, the power to search for the supposed tainted property, searches in emergencies, property not covered by a warrant during search, record, custody, and management of the seized property, and the return of seized property are contrary to constitutional provisions because they don’t allow a person charged with a criminal offence to a fair trial and do not show respect for human dignity.

(para 13) Sections of the OSP Act that relate to freezing of property, the issuing of freezing orders, the effect of freezing orders, and duration of freezing orders Contrary to constitutional provisions for the protection of privacy of home and other property; the right to a fair trial (criminal offences); the laws of Ghana; judicial powers vested in the judiciary.

(para 14) Sections of the OSP Act that relate to the OSP’s bank account are to be earmarked and approved by the Controller and account general CONTRARY to constitutional provisions because it goes against the constitutional
protected right of a consolidated fund—where all monies raised/received for the purpose or on behalf of the government shall go into the consolidated fund.

(para 15) Sections of the OSP Act that relate to the functions of the office (to recover and manage the proceeds of corruption) are contrary to constitutional provisions because they go against the constitutionally protected right of a consolidated fund, where all monies raised/received for the purpose or on behalf of the government shall go into the consolidated fund.

(para 15) Sections of the OSP Act that relate to the realization of property; utilization of proceeds of realized property—all monies and revenue recoveries arising out of the realization of property constitute public monies and revenue under Art. 175 and ought to be paid in the consolidated fund.

The writ references Article 13(3) of the 1992 Constitution: the Attorney General shall nominate a person qualified for appointment as Special Prosecutor by the president, subject to the approval of the majority of all the members of parliament. The writ also references Article 13(4), which states that the President may delegate the power of appointment of the Special Prosecutor in writing to the Attorney General.

It’s another way of saying that this new Special Prosecutor was not put in office in the constitutionally mandated manner.

The Writ crucially refers to what the Constitution deems as entrenched provisions.

Entrenched provisions are those rights that are explicitly protected by the
Constitution. These rights have a special status and will be immune from change through legislation (e.g., the OSP Act). In particular, the Writ refers to how Article 290(f) of the Constitution states that entrenched provisions that relate to the Executive shall not be amended. The Writ further cites Article 289(2) of the Constitution to say that the Constitution shall not be amended by an act of Parliament (OSP ACT) or altered, whether directly or indirectly.

Conclusion:

Although it took years for the OSP to get on its feet under Amidu (ultimately because of bureaucratic red tape), and its successor was frustrated at the High Courts with what he deemed was the judiciary not supporting their office with warrants, injunctions, and backing that would help the functioning of the OSP, the Supreme Court and civil society must work together to protect the OSP.

Ultimately, because the OSP is clearly doing something right in terms of having a sincere regard to exposing and pursuing corruption in order for shadowy
hands to be pulling the puppet strings in an attempt to remove the Special Prosecutor and, if not, dismantle the entire office.