Is Kissi Agyebeng Acting Unlawfully and Unconstitutional?

It appears public concerns about the arrest and bail of Prof Kwabena Frimpong-Boateng by the Office of the Special Prosecutor (OSP) following the latter’s report into illegal mining (gallamsey) in Ghana forced the Special Prosecutor (SP), Mr Kissi Agyebeng to appear on Joy Fm’s respected current affairs programme, Newsfile on Saturday June 10, 2023 to explain and defend his actions and omissions. However, in doing so, his explanation and defence raised more questions than answers. This short article is a review of some of the matters arising from the SP’s appearance on Newsfile.

First, the SP appeared to give the impression that those of us who questioned the arrest and bail of the former minister and chairman of the disbanded Inter Ministerial Committee on Illegal Mining (IMCIM) Prof Frimpong-Boateng was above the law and should not be held accountable. That is far from the truth and therefore the SP got it wrong.

Second, his choice of language and words, that no one is a saint was also unfortunate and misguided. No one is claiming that Prof Frimpong-Boateng is a saint and the SP’s characterisation of Prof Frimpong-Boateng, was to say the least, in bad taste and disrespectful.

When the programme host, Samson Lardy Anyenini asked why Prof Frimpong-Boateng was not granted self-recognizance bail, the SP’s response was that the OSP treats everyone the same. I was shocked by this response because the OSP and the SP must know that both are a creation of the law and must operate within the law. I agree that self-recognizance bail is discretionary, however the discretion must be exercised judiciously and not arbitrary and or capriciously. Therefore, his explanation and justification that the OSP treats everyone the same is unlawful and unconstitutional. Why?

There is no law anywhere on planet earth that says everyone should be treated the same but rather everyone is equal and fair before the law. The OSP therefore cannot and must not treat everyone the same because the same is not equal and fair before the law. Therefore, treating everyone the same is unlawful and unconstitutional. Often, people wrongly assume that treating everyone the same is right and non-discriminatory. That is false.

The law requires everyone to be treated differently but the outcome of that treatment must be equal and fair. This means that what we do (inputs) and how we do it to achieve the equity and fairness in outcome will be different because that will depend on each or specific situation, conditions, environment, time and space. For example, 2x2=4, 2+2=4,3+1=4, 5-1=4 and 6-2=4. The answers are equal but the ingredients or inputs are different and not the same and that is what equality means. How do different inputs to becoming equal and fair really relate to Prof Frimpong-Boateng’s case or the action or omission of the SP?

There is no doubt that Prof Frimpong-Boateng is not a flight risk and he is capable of providing surety to the OSP to qualify to be granted self-recognizance bail after his arrest. Therefore, for the SP to say that because the OSP treats everyone the same, so Prof Frimpong-Boateng will not be granted self-recognizance bail is not only arbitrary, unlawful but also unconstitutional. That is why judges consider mitigating circumstances before passing sentence when the accused is found guilty after trial. They do not treat everyone the same by passing the same sentence on everyone convicted of the same crime.

Moreover, the SP was economical with the truth. He told the public on Newsfile that Prof Frimpong-Boateng was arrested and bailed later during the appointment, but we now know from Prof Frimpong-Boateng that he was arrested at the beginning of the appointment. This might be a minor error and can be forgiven because the SP did not do the arrest personally.

What really disturbed me, was the claim by the SP that the OSP is the conscience of the people. What? Is Kissi Agyebeng aware that both the OSP and SP are institutions of political creation to achieve a political objective? How on earth can the OSP be the conscience of Ghanaians is anyone one’s guess. It was shocking because the very person who claimed no one is a saint is now pretending to claim that the OSP has gained some form of sainthood status. That is preposterous and ridiculous for anyone to make such claims. Ghanaians are the conscience of the nation and not any state institution of a political creation. Independent media, some NGOs and personalities in Ghana have been trying to act as conscience of the people but not any state institution. The public are the best conscience of Ghana and not the OSP. That was why the SP was forced by public opinion to explain his actions and omissions. It is the same public opinion that has compelled the OSP into action over a report that was gathering dust at the presidency. It is the same public opinion that is also now asking the OSP to also arrest certain individuals such as Gaby Okyere Darko. Therefore, Mr Kissi Agyebeng never claim that the OSP is the conscience of the people. That is never true both in action and in words. It’s a lie and deception.

I assumed that I was the only one who was not persuaded by the responses of the SP because the three lawyers who were part of the programme all accepted the SP explanation and defence but I was glad to know that I was not alone because I read an excellent piece by Dr Arthur Kennedy that was also very critical of the SP’s responses on Newsfile. I have read views that are also critical of the SP responses from our Senior Perscoba Political Platform and these are from all indications, supporters of the OSP.

I also appreciate that the OSP is not well resourced to do the job expected of the institution. Notwithstanding such problems, my advice to the OSP and particularly the SP, Mr Kissi Agyebeng is to act within the law and not above the law. Treating everyone the same without due regard to specific conditions, situation, environment, time and space is not only arbitrary but also unlawful and unconstitutional because it is not equal and fair before the law.

Kofi Ata, Cambridge, UK