Samson’s Take: The OSP is special

It is upon the fight against corruption that we may forge ourselves a decent existence.” That’s Kissi Agyebeng, the Special Prosecutor’s philosophy. The corruption fight is a collective one for our individual and collective good as a people and nation.

In Article 25(8) of the Constitution, “the State shall take steps to eradicate corrupt practices and the abuse of power.” It seemed a lost cause to the extent that a country that needs three billion dollars from the IMF to save its economy from collapse, is unable to account for same amount each year due to corruption. The Auditor-General provided evidence of lost or stolen money (2016 – 2020) which is more than twice the IMF bailout. That’s why we decided we needed an arrangement, special and different from those that have failed us. If there is nothing special or different about the Office of Special Prosecutor (OSP), then it is a needless extra burden on the taxpayer and a needless addition to the bureaucracy to start with.

The OSP, in July 2022, was stopped from freezing the assets of popular NPP guru, Sir John, essentially because there was neither a pending charge against him nor a warrant for his arrest before his death. The OSP is in the court of appeal fighting this. It insists that like Kwadwo Owusu Afriyie whose will contained property that belong to the State, money suspected to be stolen from the State ought not to be lost because a governor of the central bank stole it but was not caught before his death.

The OSP, in June, was stopped from arresting and investigating Charles Cromwell Nanabanyin Bissue, at least for ten days. Well, the suspect, who secured this order on the blind side of the OSP soon surrendered. The OSP had declared him a wanted man. I look forward to reading the basis of that decision by the court. But imagine a murder suspect or one pursued over terrorism by an investigative authority running to the court for cover. How is justice to be done if such suspect absconds under such judicial cover however limited?

The OSP, last week, was stopped from seizing suspicious money found in former minister Cecilia Abena Dapaah’s home and freezing her bank accounts. This was not only because the OSP was allegedly 7, and 14 days late to court, but for other reasons especially that the OSP had not done investigations but was playing to public sentiments. It may have been seven days late for confirmation of the seizure, but it clearly was not 14 days late for confirmation of the freezing order.

How can the seven-day timeline for confirmation of seizure mean it should come to court each time it discovers a single suspicious item within a brief period of commencing investigations? It means even if, as in this case, it took two weeks searching three separate houses of the suspect? Section 38 of the OSP law empowers the SP to direct the freezing of property if he deems it necessary to facilitate an investigation.

He must within 14 days get a court order to confirm this administrative freezing. The person suspected of corruption or corruption-related offence may be given some of his money to cater for reasonable living expenses and those of his dependants and to run his business. But he or she will get everything back if the OSP does not prefer a charge against him or her within 60 days in case of a confirmed seizure, and within 12 months over a freezing order.

One thing is clear, these judicial confirmations are to aid or facilitate investigations. This means the OSP at this stage may not know and does not have to know if the seized or frozen money or asset is actually tainted by corruption. It must only have a reasonable suspicion that it is and not be required to prove anything ahead of its investigation.

Section 40 (1)(a) and (f), it seems to me, tells a court that it is a clear case of putting the cart before the horse to make such a demand of the OSP. A suspect’s human rights appear fully protected by this arrangement. I disagree with those misreading, misinterpreting and misapplying the OSP law as though its legal philosophy is the same as that of the EOCO law on this subject matter.

These are what make the office special and different from the others. While the EOCO law makes these applications ex-parte with elaborate requirements for seizure and freezing for dealing with economic crimes, the OSP, by law, makes these applications on notice to persons suspected of corruption which, often, may be more difficult to prove.

Is the OSP doing any wrong? If confirmation of seizure and freezing applications by EOCO and FIC (Financial Intelligence Centre of the Bank of Ghana) are almost always granted by bench rulings (on the spot), while all such applications by the OSP so far have been decided days after the applications are argued with many pages of a ruling, what is special about the OSP?

It should not be difficult to appreciate the special arrangement for the OSP. A corruption investigation or prosecution is pointless if suspects have the opportunity to conceal, destroy or dissipate evidence of the plunder.

The OSP must be what the law makes it – special. In section 2 of Act 959, it is mandated, not only to investigate and prosecute, recover proceeds of corruption, but also to do the onerous job of PREVENTING corruption. That’s My Take.

Samson Lardy ANYENINI

September 9, 2023

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DISCLAIMER: The Views, Comments, Opinions, Contributions and Statements made by Readers and Contributors on this platform do not necessarily represent the views or policy of Multimedia Group Limited.