In a truly free society, the law is not a weapon for the powerful, but a shield for the citizen. However, this ideal is only as strong as the mechanisms that enforce it. When the power to prosecute lies solely within the executive branch, a fundamental conflict of interest arises: Can the state be trusted to prosecute itself?
The recent High Court ruling in Ghana, which ordered the Attorney-General to take over prosecutions from the Office of the Special Prosecutor (OSP) and declared previous OSP-led convictions void, represents a pivotal moment for our republic. For an institution like the Institute for Liberty and Economic Education, this is more than a legal technicality; it is a question of whether we will maintain a government of laws or a government of men.
1. The Purpose of an Independent Prosecutor
The core philosophy of an independent prosecutor is decentralization. In a centralized system, the Attorney-General (AG) serves two masters: the law and the President who appointed them. As a member of the Cabinet, the AG is a political actor. This creates an “Accountability Gap” where corruption cases involving high-ranking officials may be ignored to preserve political stability or party interests.
An independent prosecutor serves as a check on executive overreach by:
- Removing Political Filter: Ensuring that “Political Exposed Persons” (PEPs) face the same legal scrutiny as any other citizen.
- Restoring Public Trust: Investors and citizens alike need to know that the “rules of the game” apply to everyone. This is the bedrock of economic liberty.
2. How a Special Prosecutor Limits Government Power
A Special Prosecutor (SP) functions as an institutional “internal affairs” unit for the state. By existing outside the direct chain of command of the Ministry of Justice, the SP limits government power in three specific ways:
- Breaking the Monopoly on Justice: When only one office has the power to prosecute, they also have the power to not prosecute. An SP ensures that “gatekeeping” cannot be used to hide state-sponsored corruption.
- Professionalization vs. Politicization: Unlike an AG, whose tenure often ends with a change in government, a Special Prosecutor is typically appointed for a fixed term to ensure continuity and technical focus over political loyalty.
- Investigative Autonomy: The SP often has specialized powers to freeze assets and demand financial disclosures—tools that are most effective when used against the very people who supervise the standard police force.
3. Global Best Practices: Lessons for Ghana
Ghana is not alone in this struggle. To navigate the current crisis where the OSP’s powers have been curtailed, we can look to international models of “best practice.”
The South African “Scorpions” Lesson
South Africa once had the “Scorpions”—an elite independent unit that successfully prosecuted high-level corruption. However, when they began investigating top politicians, the unit was disbanded and replaced by a body under police control. The result? A decade of “State Capture” where billions were looted.
- Lesson for Ghana: Functional independence is fragile. If the OSP is subsumed under the AG, the risk of “institutional capture” increases exponentially.
The United States Special Counsel Model
In the U.S., the Special Counsel is technically under the Department of Justice but operates with a high degree of “functional independence.” The regulations ensure that the Special Counsel cannot be fired except for “good cause,” such as misconduct, not for political reasons.
- Lesson for Ghana: Even if the AG retains ultimate constitutional authority, there must be legally binding “hands-off” protocols that prevent the AG from interfering in OSP cases unless there is a proven breach of legal ethics.
The Romanian DNA Success
Romania’s National Anti-Corruption Directorate (DNA) became one of the most successful agencies in Europe by ensuring that prosecutors had long, protected tenures and their own dedicated budget.
- Lesson for Ghana: Financial independence is as important as legal independence. If the OSP must beg the Ministry of Finance for every cedi, it is not truly independent.
4. The Path Forward for Ghana
The current transfer of power back to the Attorney-General risks turning the OSP into a “toothless bulldog.” To safeguard our liberty, we must advocate for:
- Constitutional Insulation: The OSP should not be a “delegate” of the AG. We need a constitutional amendment that grants the OSP original, non-delegated prosecutorial power for corruption.
- Transparency in Takeovers: If the AG must take over a case, the law should require a public report explaining why, to prevent “quiet” dismissals of sensitive cases.
- Judicial Oversight: The courts must act as the final arbiter, ensuring that the AG’s power to “discontinue” cases (nolle prosequi) is not abused to protect political allies.
Conclusion:
Economic prosperity requires a predictable legal environment. When the government can shield itself from the law, it creates a “corruption tax” that every Ghanaian pays. Liberty survives only when the people who hold power are just as afraid of the law as those who do not. We must fight to ensure the Special Prosecutor remains a sentinel of justice, not a subordinate of politics.
