Supreme Court explains why Special Prosecutor's Office cannot be equated to public service

The Supreme Court has held that Mr Martin A.B.K. Amidu is eligible to be the Special Prosecutor because his office cannot be equated to the public service which is caught by the retirement age of 60 as prescribed under Articles 190, 195 and 199 of the 1992 Constitution.

In a 5-2 majority decision, the court held that the Office of the Special Prosecutor (OSP) is similar to that of Article 70 of the 1992 Constitution office holders.

Article 70 office holders include the Chairperson of the Electoral Commission, the Commissioner, Commission on Human Rights and Administrative Justice and the Chairperson of the National Commission for Civic Education.

“We conclude emphatically by stating that the category of public officers to which the Special Prosecutor has the closest affinity is Article 70 office holders whose conditions of service, including retirement age, are pegged to that of the Justices of the Court of Appeal.”

 “Parliament in prescribing the mode of appointment of the Special Prosecutor and Deputy different from Article 195 (1) did not flout the constitution,” the court held.

Chief Justice Kwasi  Anin Yeboah

The decision of the court follows a suit filed by Dr Dominic Akuritinga Ayine, a former Deputy Attorney-General, who argued that Mr Amidu was ineligible to be the Special Prosecutor because he was 66 at the time of his appointment and, therefore, his appointment was unconstitutional.

It’s constitutional

Per its decision, the apex court has declared as constitutional Section 13 (5) of the Office of the Special Prosecutor Act, 2017 (Act 959) which equates the conditions of service of the OSP as the same as Article 70 office holders.

Justice Nene Amegatcher

The only difference is that Section 13 (5) of Act 959 makes the tenure of the Special Prosecutor a seven–year non-renewable term, while  Article 70 office holders retire at the age of 70.

The majority decision was read by Justice Nene Amegatcher who was supported by the Chief Justice, Justice Kwasi Anin Yeboah, and Justices Paul Baffoe-Bonnie, Samuel K. Marful-Sau, and Professor Nii Ashie Kotey.

Justice Prof. Nii Ashie Kotey

Justices Nasiru Sule Gbadegbe and Agnes Dordzie dissented.

Bold decision

The highest court of the land held that the creation of the OSP was a bold decision by Parliament to fight corruption and, therefore, that office cannot be treated as an ordinary public office.

Justice Paul Baffoe-Bonnie

“The passage of Act 959 was a bold step taken by Parliament in the fight, targeting this time an independent person with expertise, integrity and history in fighting corruption and hoping possibly this time to succeed. It will surprise us if Parliament’s intention in setting up this office was to make it another ordinary public service institution.”

The court also held that Parliament was right in treating the tenure and conditions of the OSP as different in order to protect its independence.

Justice Agnes Dordzie

 “We consider the Special Prosecutor important, i.e. to curb corruption and ensure probity, accountability and transparency by all. Ensuring independence in its functions and protection against victimisation for work done under the constitution warrant security of tenure for the Special Prosecutor.

“Accordingly, the plaintiff’s writ fails in its entirety and all reliefs are dismissed,” the court held.

Justice N.S. Gbadegbe

Background

It was the contention of Dr Ayine that upon a true and proper interpretation of articles 190 (1) (d), 199 (1), 199 (4) and 295 of the 1992 Constitution, the retiring age of all holders of public offices created pursuant to Article 190 (1) (d) was 60 years, which could be extended to 65 years.

He argued in his statement of case that by nominating and appointing Mr Amidu to be vetted and approved by Parliament, both the A-G and the President had violated Article 199 (1) of the 1992 Constitution.

Writer’s email: emma.hawkson@graphic.com.gh