The establishment of the OSP in 2018 marked a significant step forward in the effort to reform the country’s anti-corruption institutional architecture. This development was a follow up to an earlier turn in anti-corruption institutional reform when the Serious Fraud Office (SFO) became the Economic and Organized Crime Office (EOCO) in 2010 to deal with complex white collar crimes. This also came with the Financial Intelligence Centre (FIC) around the same time. This was in response to changing threats from criminal gangs, financial crime dynamics particularly money laundering and terrorist financing.
These institutional advances did not however address a pending challenge identified in the African Peer Review Mechanism (APRM) report in 2004 on the independence of the Attorney General (AG) to investigate and prosecute corruption by Politically Exposed Persons (PEPs), including members of the AG’s own government. The recommendation at the time was for the separation of the AG and Minister of Justice functions for the AG to have more independence. The current situation where the AG oversees prosecution of PEPs has led to a focus of corruption on post regime accountability whereby the incumbent regime prosecution efforts are directed towards holding the previous regime accountable, with a few exceptions.
This demand for a more independent prosecutorial function for dealing with corruption evolved into a commitment to establish an independent public prosecutor office under the National Anti-Corruption Action Plan (NACAP 2015–2025), which was adopted by Parliament and launched by President Mahama. In 2016, the NPP manifesto promised the establishment of the OSP to address the challenge of prosecuting PEPs. The NDC proposed the appointment of a semi-autonomous Director of Public Prosecutions under the AG to ensure independence.
The OSP was established in 2018 with the clear understanding that action needed to be taken, and that at any point in time when a constitutional reform process was instituted, it would be used to firmly entrenched the OSP in the constitution. CDD-Ghana with TI, Ghana and GACC played an active role in supporting Parliament to draft the legislation.
Unlike any other institution, the OSP since its inception has been attacked right from its birth and through its existence. Questions and challenges to its constitutionality in the courts continue, the scope of its powers has been contested even where its laws are more progressive than the EOCO law, particularly on the balance of rights, and there have been petitions to remove the Special Prosecutor. In a way it is reminiscent of the phase that CHRAJ went through in the 2000s (the Anane case) when its powers were consistently contested. Interestingly, we have not had this sustained attack on the FIC, EOCO or the Police even though their work is not dissimilar to the OSP.
It says one thing, our rhetoric as a country and our practice are far apart. Every election, parties insist that corruption prosecution is biased and the function must be made independent, and then they turn around and undermine their own interventions.
The debate as to whether we should have the function of prosecuting corruption, especially by PEPs handled by an independent person other than AG for me have been settled after 22 years. Returning to the pre 2018 arrangement is to send the anti-corruption architecture two decades back. Moreover, developments around the world clearly affirms the evolution of our anti-corruption institutional framework to be on the right path.
The task ahead is to finish what we started.
