“Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should, rather than pick cases that need to be prosecuted.” R. H. Jackson
Introduction
The Special Prosecutor of Ghana, Mr. Kissi Agyebeng does not appear to have learnt the ropes of what it takes to be an experienced investigator and a prosecutor within the institution of law enforcement almost two years after his appointment by the President of Ghana to that august office.
Kissi Agyebeng has refused or failed to learn quickly that the Office of the Special Prosecutor (OSP) was not established as a corporate fisheries entity to go into the oceans, rivers, and other water bodies of crime, casting its net widely to scoop in every fish the net can catch, and then decide which type of fish meets its fancy to be retained as game or food for sacrifice to the gods of persecution and which to release back into the oceans.
The invitation, arrest and bailing of Professor Kwabena Frimpong-Boateng provide the clearest example of Kissi Agyebeng’s inexperience and incompetence as an investigator and a prosecutor for corruption offences.
The deficiencies in the investigatory and prosecutorial experience of Mr Kissi Agyebeng is what has haunted him into overdrive to think that he can earn the trust of Ghanaians by appearing to talk tough and threatening to investigate and prosecute “Everyone and every person” on mere suspicion of the commission of a corruption offence without first establishing reasonable grounds for such suspicion as though he was on a fishing expedition.
The ethics governing professional investigators as well as prosecutors do not permit such specialized public officers to intimidate and frighten citizens with threats of arrest and prosecution for the generic offence of corruption and corruption-related offences created under the Office of the Special Prosecutor Act, 2017 (Act 959) without indicating to a suspect the specified crime(s) committed or about to be committed within the generic corruption offences.
There is no crime under Act 959 known as “alleged or suspected corruption and corruption-related offences”. The mandate of the OSP is to “investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences” (Emphasis supplied).
The specific cases of offences the OSP is enjoined to investigate and prosecute are defined under Section 79 of Act 959. Consequently, the citizen is entitled to know from the invitation letter or at the point of arrest the specific offence of alleged or specified suspected corruption and corruption-related offences for which he is reasonably suspected of having violated.
The Ghana Police Service which hitherto was responsible for investigating all criminal offences under the Criminal Offences Act, 1960 (Act 29), is not permitted to invite or arrest a citizen for the commission of crime generally without specifying the particular crime or offence for which the citizen is reasonably suspected of commission or about to commit.
The fundamental rights and freedoms of the citizen to fair and impartial investigation and prosecution upon reasonable suspicion of the commission of crime are guaranteed under the Constitution and the Special Prosecutor cannot decide at his whim when and how the guaranteed rights may be enjoyed by the citizen on account of the mandate of his office to investigate and prosecute specified cases of alleged or suspected corruption.
The Special Prosecutor can only earn the trust of the citizen by discharging the functions of his office in accordance with respect for the fundamental rights and freedoms enshrined in the 1992 Constitution, the Office of the Special Prosecutor Act, 2017 (Act 959), the Criminal Offences Act, 1960, the Criminal and Other Offences Procedure Act, 1960 (Act 30), and other laws establishing the functions and powers of other more established law enforcement agencies.
In dealing with corruption and corruption-related offences, an experienced Special Prosecutor would have recognized that the 1992 Constitution specifically established the Commission for Human Rights and Administrative Justice (CHRAJ) as the only independent constitutional body entrusted under Article 218 (a) and (e) with functions to investigate complaints of violations of fundamental human rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties. The CHRAJ is also charged with investigating all instances of alleged or suspected corruption and the misappropriation of public moneys by public officials.
Similarly, the Ghana Police Service is also specifically established by the Constitution to “be equipped and maintained to perform its traditional role of maintaining law and order” which includes the investigation of crime. The impression created by Kissi Agyebeng, the Special Prosecutor, that he has the sole responsibility to investigate and prosecute the specified cases of corruption under Act 959 is, therefore, a disingenuous assumption of power which the Constitution has specifically apportioned to the CHRAJ and to the Ghana Police Service.
Kissi Agyebeng’s hurry to gain credibility and the trust of the public without first learning the ropes of what it takes to be an experienced investigator and a prosecutor may have led him into trampling upon the rights of citizens and behaving as though the OSP is a branch of his associated firm of Tiger Eye PI exhibiting gangsterism and instilling fear into the citizenry.
Citizens who previously appeared before the OSP were cowed into meek submission and terror by the Gestapo and the lawless style of the OSP under Kissi Agyebeng which he entrenched by unconstitutionally staffing the office with poached former clients from the police service, a retired prison officer and businessman, friends and his law firm colleagues dancing to his tyrannic tune without asking any questions.
Professor Kwabena Frimpong-Boateng has proved himself an exceptional, courageous, and patriotic citizen by challenging and making public on 7 June 2023 the arbitrary and oppressive conduct that citizens who appear before Kissi Agyebeng’s OSP face. This discourse will be examining the emerging impunity taking over the OSP since the assumption of office by Kissi Agyebeng without accepting any signed handing over notes from the acting Special Prosecutor indicating his assumption of office.
