In Defence of the Attorney General

By Akoto Ampaw

I have seen a recent press release said to be from a group of people calling themselves "Coalition of NPP Footsoldiers Against Corruption".

The release, which is doing the rounds on social media, is titled: 'Gloria Akuffo must start prosecuting or leave post'.

Indeed, when I saw the name of group that is said to have issued the statement, my first reaction was to burst out into a loud and long laughter interspersed with uncontrollable chuckling.

I then proceeded to read the press release, and went through a series of mood swings - from amusement, through disbelief and, by the time I had finished reading, visceral anger.

Ominous appeal

The allegation was that there was a list of corruption cases that the NPP, while in opposition and on the campaign trail in 2016, had shouted it would investigate and prosecute.

The complaint of the 'NPP Footsoldiers Against Corruption' was that after almost two years of the NPP being in power, there was very little to show for the numerous corruption cases the NPP had alleged on the campaign trail in 2016.

The group, therefore, concluded that either the Attorney-General (AG) and her deputies were not interested in prosecuting the cases or they were incompetent.

The foot soldiers, accordingly, made the ominous appeal to the President "to order (sic!) the AG to live up to expectation or sack her and her lieutenants"!

Ignorance

Let me state from the onset that I can understand the frustration of the foot soldiers. Nevertheless, they completely miss the point and expose their ignorance of what is involved in criminal prosecutions and the AG's role and function in that process.

The first thing to note is that it is one thing to make allegations of corruption against one's political opponents on the campaign trail and quite another to initiate criminal prosecution in a court of law.

This is so because criminal prosecution is not based on allegations made on campaign platforms, but based on cogent and convincing evidence that is established through meticulous investigation and, above all, which can meet the acid test of legal evidence.

Investigations not her function

The second thing that our frustrated foot soldiers need to understand is that it is not the function of the AG to conduct criminal investigations.

That rather falls within the purview and function of the state investigative bodies, foremost among which are the Ghana Police Service, the Bureau of National Investigations, Economic and Organised Crime Office and the Financial Intelligence Centre, as well as the new Office of the Special Prosecutor.

Prima facie case

My dear foot soldiers, it is only after such bodies have effectively and successfully carried out their job of investigating the allegations of corruption that a docket is prepared for the attention of the AG to review.

Then, when upon review she is satisfied that there is a prima facie case, based on the evidence uncovered by the investigations, she initiates criminal prosecution.

Without such docket or report, not even the most competent and committed AG in the world can be effective and procure the conviction of persons charged with looting the state.

The first question that the foot soldiers and all those who honestly and wholeheartedly support the fight against corruption in Ghana ought to ask, therefore, is: have the bodies charged under the law to carry out investigations done their job and submitted compelling dockets for the AG to review the evidence in the light of the law, so as to conclude that there is sufficient legal evidence to mount a successful or, at the very least credible, criminal prosecution?

The answer to that question, in my respectful view, is a resounding no! They have not. And without such legal ammunition, there is little the AG can do.

Again, the foot soldiers expose either their ignorance or political bad faith when they claim there is very little to show for the corruption cases about which they sang on the 2016 campaign trail. Currently, the AG is prosecuting simultaneously three major corruption cases - the National Communication Authority (NCA), the COCOBOD case and the Social Security and National Insurance Trust (SSNIT) case.

Machiavellian conspiracy?

The Footsoldiers Against Corruption can be forgiven the display of ignorance of the law and what it takes to mount a successful criminal prosecution. But others who are well informed of the intricacies and complexities of especially white-collar crime should know better.

I have reason to believe that it is these others who are hiding in the shadows and using the unsuspecting foot soldiers as pawns in what is no more than a dangerous Machiavellian conspiracy to oust the AG from office.

It is these faceless people who have provoked my anger and indignation and have forced me to speak out on this matter of principle.

They should know better! They should know that the role of the AG, in our jurisprudence and especially, under the Constitution, cannot be likened to that of the inquisition.

And it is not by accident that the AG is the only minister of state specifically named in our Constitution. As the competent and worthy AG she is, Miss Gloria Afua Akuffo ought not to see herself as a political hatchet woman that uses the awesome prosecutorial powers of the state to hunt down political opponents.

That is not the role the Constitution and the law have carved out for the office of the AG. Rather, she must be convinced, in accordance with the ethics of the legal profession, that there is sufficient evidence to procure a conviction of persons she charges with the commission of crimes.

Burden of proof

The AG, like any other prosecutor, must prove her case against the accused persons beyond a reasonable doubt.

Therefore, where an accused person succeeds in raising a reasonable doubt in the mind of the judge of fact and law as to whether or not he committed the offence, the judge or court is bound by law to acquit and discharge the accused.

That is why, in the absence of a docket that shows that on the evidence available, there is a prima facie case to be answered by the accused, it is foolhardy and imprudent (unwise) for any AG to rush to court to prosecute the list of cases the foot soldiers and their ventriloquist are complaining the AG has failed to prosecute. No AG worth her or his salt will do that. And I know that the current one will not rush to court with cases that have no chance of procuring a conviction simply in response to party political pressure. That is not the role of the AG in our Republic and under the 1992 Constitution. The President knows this very well and that is why I do not expect him to bow to such base pressures.

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