A former Attorney-General, Martin A. B. K. Amidu thinks aspects of the Special Prosecutor’s bill undermines President Nana Akufo-Addo’s anti-corruption fight.
In his latest commentary, Mr Amidu focused on the Bill that is currently being perused by Parliament, taking issue with a clause that he says may render the goal of the Special Prosecutor’s Office hard to achieve.
The Special Prosecutor’s Office is part the Akufo-Addo-led government's efforts to end the scourge of acts of corruption by public officials.
LET’S NOT UNDERMINE THE PRESIDENT’S FIGHT AGAINST CORRUPTION IN THE SPECIAL PROSECUTOR’S BILL
When it became clear to me that We the People might not be allowed our democratic right to participate in the discourse leading to the enactment of the Office of the Special Public Prosecutor Bill, 2017 I raced against time to hurriedly research and write a lengthy constitutional and legal critique of the Bill.
Now that Parliament has vetoed taking the Bill through a certificate of urgency I will publish my views at the appropriate time when the parliamentary time table for public input is known. I was, however, shocked particularly by Clause 3 sub-clause 4 of the Bill which makes the whole Office of the Special Prosecutor Bill, 2017 a waste of public resources and everybody’s time.
Clause 3(4) undermines the President’s exemplary rhetoric since his assumption of office to relentlessly fight against all forms of corruption. Somebody must be sabotaging the President’s fight against corruption.
What you will read hereunder relates only to Clause 3 which deals with the functions of the office. It demonstrates what has happened to Presidents who intend the good of their people and nations but were led astray by minders and appointees with clearly different and opposite criminal objectives.
My purpose of publishing this out of my critique of the Bill as a whole is to alert the public to take a keen interest in the passage of the Bill through Parliament so that Ghanaians are not shortchanged in the actualization of the promise by the President to fight corruption as corruption and crime as crime.
THE FUNCTIONS OF THE OFFICE – CLAUSE 3 OF THE BILL
The original draft Bill submitted for discussions at the Stakeholders’ Meeting of 27-28th June 2017 did not include the new Clause 3 (3) and (4). Sub-clause (3) that was added to the Bill before Parliament is with respect unnecessary, it will be a waste of public funds during the gestation period particularly and it is too populist to be enshrined in the law.
Clause 3(4) which was also not part of the original draft of the Bill, negates the whole promise that the President made during his campaign and after his assumption of office to fight corruption, if as it states the Special Prosecutor is not to investigate and prosecute corruption offences relating to the Public Procurement Act, 2003 and the Criminal Offences Act, 1960 “....specified under paragraphs (a), (b) and (c) of subsection (1) unless the commission of the offence is in respect of a vast quantity of assets that (a) constitute a substantial proportion of the resources of the country; (b) threaten the political stability of the country; or (c) threaten the sustainable development of the country.”
First and foremost, sub-clause 4 of Clause 3 of the Bill before Parliament lays down vague and ambiguous exceptions for the purposes of determining which corruption offences will meet those standards for investigations to begin within the first place. Secondly, the vagueness and ambiguity of the exceptions made, provide an argument to be overcome by the Special Prosecutor when the objection is raised in Court that his decision to prosecute a corruption offence does not meet the threshold standard stipulated in the Bill.
Thirdly, the attempt to distinguish the types of corruption offences that may be investigated and prosecuted by the Special Prosecutor sends the clear message to Ghanaians that the President and his Government now accept certain types of corruption offences as not serious for prosecution, or at least to be prosecuted by the Special Prosecutor. Fourth, the question may be asked, who will be responsible for investigating and prosecuting categories of corruption offences by the same public officers and politically exposed persons not meeting the standards in Clause 3(4). Or are they then immune from prosecution for such corruption offences? And fifth, there is no rational reason for having two types of prosecutors for the same corruption offence when committed by the same public officers. I will return to this in due course to show that the exemption grants immunity to public officers from being prosecuted for committing the exempted corruption offences.
The President has been clear throughout his campaign and on assumption of office that the canker of corruption must be fought and uprooted through a Special Public Prosecutor. He has said time without number that crime is the crime and therefore corruption is corruption. So how come the Bill that was submitted to the Stakeholders’ Meeting on 27-28th June 2017 did not contain this exception, but the exception found its way into the Bill after it apparently returned from the Cabinet to Parliament? The Stakeholders’ Meeting of anti-corruption organizations and civil society, I am reliably informed, did not insert sub-clauses 3 and 4 of Clause 3 now appearing in the Bill before Parliament. The original draft Bill, after taking into account the suggestions of the stakeholders was approved by the Cabinet. Was it, therefore, the Cabinet who sought to nullify the fight against corruption by inserting this negation of the purpose of the Bill?
Whosoever inserted sub-clause 4 of Clause 3 thought they were being ingenuous as we the foolish people of Ghana will not notice that the definition of “corruption and corruption related offence” ceded to the Special Prosecutor in the interpretation at Clause 77 of the Bill includes all corruption offences without exception or degree of seriousness. Therefore to exclude a species of corruption offences as they sought to do simply means that there would be no institution responsible for the prosecution of the so-called corruption offences that do not fall under the sub- clause 4 exceptions. It follows that the Cabinet or whosoever inserted the sub-clause is legalizing an undefined species of corruption as not being serious corruption - namely constituting a substantial portion of national resources, threatening the stability of the country, or threatening the sustainable development of the country - to warrant prosecution ever or at all.
We are doing no honour to our obligations as a nation under the United Nations Convention against Corruption (UNCAC) and the African Union Convention on Prevention and Combating Corruption (AUC).
The serious reader will notice from the Bill before Parliament that the consequential amendments in Clause 78 (1) also remove the offence of corruption from the jurisdiction of the Economic and Organised Crime Office when it states that: “The Economic and Organised Crime Office Act, 2010 (Act 804) is amended in section 74 by the deletion the words “corruption and bribery” in paragraph (a) of the definition of serious offence.” Who then will investigate the species of corruption the Government has removed from the Special Prosecutor’s functions by the insertion in Clause 3(4) of the Bill before Parliament? This whole exception is a negation of the President’s fight against all forms of corruption in the body politic by using public office holders and politically exposed persons as an example. Will somebody call the President’s attention to read Clause 3 of the Bill before Parliament and confirm whether he endorsed the exception in sub-clause 4 for submission to Parliament? The retention of sub-clause 4 of Clause 3 of the Bill makes it unnecessary to enact any Office of the Special Prosecutor Bill into law.
CONCLUSIONS
I have no doubt that the insertion of Clause 3(4) that negates the whole Bill before Parliament was done to enable those proponents to harvest their shameless perceived share of the proceeds of corruption that dishonest appointees criminally exploit in public office. These may be men and women who might have wormed their way into public office by deceiving the President about their credentials of integrity and honour to render loyal service to him and the Republic of Ghana.
The insertion of Clause 3(4) in the Bill should therefore be a wake-up call for the President to watch his incorruptible appointees, because as the saying goes, it is not all that glitters which is gold. I am of the strong conviction that the attempt to pull a fast one on Ghanaians by the insertion of Clause 3(4) into the Bill to negate the fight against corruption is the work of a strong and powerful cabal within the government because they even succeeded in ensuring that the memorandum to the Bill was silent on this important insertion so that it will not catch the eye of the casual Ghanaian reading public. Bribery and corruption is bribery and corruption.
We cannot justify any form of corruption. The 1992 Constitution did not make any exception when it prohibited corruption and enjoined every citizen to fight corruption. The exceptions in Clause 3(4) of the Bill are consequently unconstitutional.
Somebody should have known or realized that those insertions would embarrass the President in the promises he made to Ghanaians to fight corruption and prevented their insertion in the Bill.
Source: MARTIN A. B. K. AMIDU
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I respect Martin Amidu very much because of his resolved to see that corruption in Ghana is discouraged and punished when found short of the law.As he has expressed his intent to make critique of the bill, and as such participate in the discourse of the passage of the Bill at appropriate time, I had wished he reserved the perception he made that 'There's An Attempt To Embarrass Akufo-Addo In Fight Against Corruption' This I think is superfluous and sounds populistic. Then, one could equally argue that, giving the benefit of the doubt, that Amidu is right in his inference, still the evidence is neither for any delibrate act nor against it.It could equally be an oversight or a fault in simple terms without unnecessary reading any meaning into it. Yet how I wished so much that Amidu was appointed a member of the Special Prosecutors.
NPP says they have the men not knowing they have empty headed but very loud mouth men hahahahaha I lough enter Flagstaff House or sorry golden jubilee cottage.
THANK YOU MARTIN. GHANAIANS SHOULD WATCH THOSE BIG MEN AROUND NANA ADDO THEY WILL BE THE SAME PEOPLE WHO WILL PULL NANA ADDO DOWN AND DISGRACE HIM. WHO INSERTED CLAUS 3 SUB SEC. 4 AS MARTIN IS SAYING IS IT KYEI MENSABONSU AND NPP GURUS? SHAME UNTO THEM ALL THEY WANT TO CREAT A LEE WAY TO FREE THE REAL CORRUPT PEOPLE BOTH NPP AND NDC. SHAME UNTO OUR LAW MAKERS. ALWAYS THINKING OF THEMSELVES HOW TO GET AWAY WITH THEIR CORRUPT ATTITUDE. THANK YOU SIR MARTIN FOR YOUR SEARCH INTO THIS HIDDEN CLAUSE GOD BLESS YOU.
Dr Martin Amidu you are indeed a true son of the land GOD bless you and continue to give you more insight thank you for pointing this out and we also would make sure this clauses are amended to the right one and as for those corrupt officials we continually pray to GOD who is still fighting the battle to reveal all your evil plots and deeds.
Just fix these ambiguities and loopholes and appoint Martin Amidu as Special Prosecutor. He deserves it. Ghana bɛyɛ dɛdɛɛdɛ!
Ghanaians who support the fight against corruption this day congratulates you (Accomplished Lawyer Martin Amidu) for all your support and courage to support Nana Addo Dankwa in fighting corruption. We as a country and a people stand by you and with you to defend our country against evil (in the form of corruption etc.)!! I will put down my life for you and my country, Martin Amidu! You stand tall and continue to stand by NADAA, never get discouraged and intimidated. If the Minority or any body jokes, we will put the CONSTITUTION aside and physically drag all corrupt officials to NSAWAM PRISONS....We know all of them. They sit on TV3 and other TV stations morning discussions and talk as if they are above the laws and cannot be touched...we are watching with Eagle Eyes. God and Ghana Stands with: Martin Amidu, Bawumia and NADAA. #WebHunter
Nana open your eyes ooo. Mmmmm, I have been telling youooo!
what a shocking revelation!! Thumbs up Martin Amidu!
Thanks Mr. Martin.Please Mr president, take Mr. Martin's advise seriously. I support you, but I will be disappointed if you don't fulfill your promise to fight corruption. I voted for you because of that not one district one factory or whatever. For I know that without corruption in the public sector Ghana can go far. We are where we are because corrupt public officials. Just a piece of advice Mr. President, never trust anyone 100%. Make sure double check whatever your appointees do.
Ghana, we are blessed to have such a man as Mr. Martin Amidu. God bless him and shower His abundant Grace on Him always. Amen.