Re-examining the OSP’s Attacks on Ghana’s Judiciary

Feature Article Re-examining the OSPs Attacks on Ghanas Judiciary
DEC 4, 2023 LISTEN

The recent allegations by the Office of the Special Prosecutor (OSP) regarding the adjudication of four high-profile cases raises an urgent question about the integrity of Ghana’s judicial system. While detecting corruption and combating corruption are crucial to the flourishing of our democracy and the mandate of the Special Prosecutor, unsubstantiated accusations of corruption, including bias, against members of the judiciary threaten judicial independence if left unchallenged. This paper revisits the one of the four cases—the freezing of assets linked to the late Kwadwo Owusu Afriyie ‘Sir John’—to determine if the OSP’s censure of the judiciary holds merit.

The objective analysis of the well-established legal principles that follow will show that, despite the OSP’s grave and serious concerns about the character of the judge in the case, the judge acted appropriately in rejecting the OSP’s application.

Overview of the OSP’s Allegations Against the Judiciary

The sum of the OSP’s allegations is that members of the judiciary have ganged up against the office and have adopted a dismissive approach to cases brought by the office. In his attacks, the OSP has directly suggested that in the case he had brought, looking to freeze some assets purportedly belonging to Kwadwo Owusu Afriyie, the judge both misapplied the law concerning the case and granted a non-existent immunity from prosecution to Sir John because he had died.

Proceedings against the Dead at Common Law

However, as a matter of general common law principle, whenever a party to a proceeding dies, the proceedings must end unless there is some statutory provision allowing a personal representative with sufficient interest to continue. (R v. Jefferies (1969))

In countries such as Ghana, the Rules of Court allow the substitution of parties upon the death of a party, but only in certain claims. However, those claims do not extend to criminal action. The common law rules further states that courts do not have the discretion or power to waive this rule. (R v. Turk (2017)) In Ghana, the High Court recently applied this principle in the case of Dr Mac Palmar, who was on trial for treason. When he died during the trial, the indictment was declared null and void concerning him. Also, in Abodakpi v. the Republic, the Court of Appeal affirmed the common law principle by citing with approval the common law view that ‘when an attempt is made to charge a dead person with a matter in which if they were alive, they might have answered the charge, the evidence ought to be thoroughly shifted, and the mood of any judge who hears it ought to be first of all in a state of suspicion.’

The Supreme Court has subsequently affirmed this principle in cases such as Kusi & Kusi v. Bonsu. And as recently as 2021, the Supreme Court explained in Bokor v Oddoye substituted by Philip Odoi, the Supreme Court explained ‘the rationale for this principle is of abiding value because there is a grace danger in accepting charges against dead persons who have no means of answering the charge.’ Therefore, even where the law allows actions against deceased persons to begin or continue, the courts always hear the evidence in the case with a presumption in favour of the deceased. While the Court will not insist on corroborated evidence, it will treat with suspicion and care uncorroborated evidence against a deceased person and will not accept such evidence except if absolutely satisfied with its truthfulness (Kusi & Kusi v. Bonsu).

matters in issue
The OSP is the creation of an act of Parliament. That means that every action the OSP takes must be authorized by a provision in that Act of Parliament or other legislation made under that Act. Secondly, he is a product of delegated legislation and lacks even the common law powers that the Attorney-General and Police exercise in addition to their statutory powers.

The matter in issue, in this case, was not therefore simply that Sir John was dead but rather whether, first of all, there was a statutory provision overriding the common law ‘bright line’ prohibiting proceedings against the dead and second, whether the OSP had satisfied the statutory ground upon which he chose to freeze the assets in question by adducing sufficient evidence capable of withstanding the scrutiny of judicial suspicion.

Why Issue One was resolved against the OSP

For the Court to grant the OSP’s application to freeze any property, the OSP must be able to articulate facts that satisfy the Court that any of the six grounds mentioned under Section 40(1) exist collectively or at all. As a result, concerning his application to freeze the properties purportedly belonging to Sir John, he had to show the Court that either:

a. The estate of Sir John was being investigated for a specified corruption or corruption-related offence. However, that was impossible because Sir John was no more, and a criminal investigation, absent a statutory provision empowering it, a criminal investigation could not be begun against him with his Estate as substituting party.

b. The estate of Sir John had been charged with any corruption or corruption-related offence. Again, that would have implied substituting the estate as parties in the criminal action against Sir John who had died and thus could never possibly be charged with a corruption or corruption-related offense;

c. There are reasonable grounds to believe that the properties in question are tainted. Under the OSP Act, a property is tainted where that property has been either in connection with the commission of an offense or has been derived, obtained or realised as a result of the commission of a corruption or corruption-related offense;

d. The properties in question were a derived benefit directly or indirectly from a corruption or corruption related offense. That required evidence linking the property to either a corruption or a corruption related offense as specified under the OSP Act.

e. the property is tainted and is under the control of another person, but there are reasonable grounds to believe that Sir John is subject to the effective control of Sir John. actual owner of the property, and/or;

f. there are reasonable grounds to believe that the court will make a confiscation order under Section 54 of the OSP Act which means that the OSP must articulate facts backed by evidence showing or warranting his belief that eventually the Court will grant a confiscation order in respect of the properties.

election of Section 40(1)(f) by OSP
It can be seen from the statutory options provided under Section 40(1) that the OSP was precluded from relying on paragraphs A and B as well as E since Sir John was already dead but could have relied on either C, or D that D deals directly with the source of the properties and status of the property provided they had the evidence he had the evidence to meet the threshold. However, the OSP elected paragraph F that required the conditions under Section 54(1) to be met or immediately anticipated. That election is evinced by the factual background to the application established at the 'probable cause' hearing held on the case.

Factual Grounds of the OSP’s Application

The factual grounds upon which the OSP premised their application in the case were that Sir John was the CEO of the Forestry Commission from March 2017 to July 2021 which classified him as a public officer during that period. He had a will, the authenticity of which was disputed in the High Court. Despite the ongoing dispute, the OSP maintained its belief in the will’s validity. It was further the OSP’s contention that the Will listed several properties, which Sir John allegedly acquired but did not declare while he was in office. Some of these properties were located within the Sakumono Ramsar site. Additionally, it appeared that Sir John ran a bank account under the name of Ruth Korkor Odonkor. Given these circumstances, the OSP contended that Sir John’s Estate might have been tainted. If it were determined that the property was tainted, the OSP anticipated that the Court would have issued an order for confiscation under Section 54. The sum of the OSP’s contention was therefore founded on Section 40(1)(f) read in the light of Section 54 of the OSP Act. It must be submitted that the OSP chose to rely on paragraph F simply because he is a populist and was reacting the public opinion momentarily persisting and did not undertake any proper investigations. Also, frankly, he could not discharge the evidential burden imposed by options C or D by relying solely on the ‘Will’ and without any proper investigation.

Failure to Meet Statutory Conditions under 40(1)(f)

Section 40(1)(f) however refers to ‘reasonable grounds’. At common law, that involves ‘the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed’. Reasonable grounds are thus only inferred after evidence has been led objectively showing the existence of the state of circumstances and is found where the trier of fact or any other reasonable person would agree with the position of the accuser given the same set of facts and circumstances.

The OSP’s application simply did not meet the statutory threshold because the OSP did not articulate any reasonable grounds warranting his belief that an eventual application for confiscation would have been successful. That is because the statutory conditions needed for the grant of such an application could never have been fulfilled. As referred to earlier, the grounds are that:

a. a person is facing prosecution for a specified corruption or corruption-related offence or

b. a person dies or absconds following a conviction for a corruption or corruption-related offence.

It was therefore a fundamental requirement for the OSP to show evidence proving that either Sir John during his lifetime had been faced with prosecution for any or all of the 11 specified offenses under the OSP Act or had died or absconded following a conviction. By the clear wording of Section 54, Parliament also did not intend to circumvent the common-law granting immunity to persons who had died from criminal proceedings. That intention is deducible from the basic principle of statutory interpretation that Parliament is not intended to take away common-law rights and immunities except through explicit language.

Yet in this circumstance, Parliament could not even have taken such rights away as the rights in question are also linked intrinsically to the Fair Trial provisions enshrined under the Constitution of Ghana and it needs no explaining that a dead person can never have a fair trial within the meaning of Article 19. Section 40(1)(f) read together with Section 54, could not therefore be taken as empowering the OSP to initiate criminal proceedings against a deceased person. On that basis, there were no reasonable grounds to call for the OSP's belief the Court was going to make a Confiscation Order under Section 54 of the OSP Act or under any provision at all. And no reasonable judge would have found any such belief warranted in the face of the statutory language of the OSP Act.

Issue Two resolved against OSP
Failure to meet common-law evidential burden

Another fundamental flaw with the OSP's Application was that it was absent of proper proof which could be attest to accusations against him that he conducted rush investigations and evidence of a forced-fed application. As it was held in Majolagbe v Larbi 1959 GLR 190:

‘Proof in law is the establishment of facts by proper legal means. Thus, where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.’ (insertion mine)

Furthermore, in the Republic v High Court (Financial Division 2) Accra (2017) Interested Party EOCO, the Supreme Court limited the powers of investigatory powers to freeze properties to properties actually established as ‘tainted’. In cementing the jurisprudence previously established in the case of Ex Parte Xenon Investment, the Supreme Court said 'We appreciate the enormous responsibilities that such investigative agencies face in their bid to curb money laundering and other economic crimes. However, we are of the considered view that when an application is made to a court for the freezing of accounts, the monies in the accounts not tainted with crime or with the suspicious transactions should be separated.’ This means that the OSP’s powers to freeze properties must be situated within that common law light and are limited to properties that are established as ‘tainted’ as within the statutory language of the OSP Act.

The Supreme Court further imposed a duty on investigatory bodies, looking to obtain confirmation of freezing orders to separate the property tainted and those not tainted. The Supreme Court made it clear that when an application is made to a court for the freezing of accounts, the monies in the accounts not tainted with crime or with the suspicious transactions should be separated. The rule shows the importance of thorough investigations and the need for solid evidence when dealing with such serious matters and before proceeding to Court. At the very least, there is a requirement for the Applicant to back their assertions that the property is tainted with evidence that goes beyond mere reasonable suspicion. The rationale policy rationale behind jurisprudence was the constitutional presumption of innocence until proven guilty, right to property, the protections from Executive and administrative arbitrariness and the constitutional guarantees to a fair trial.

That was captured in the words of the Supreme Court when it said ‘we also wish to finally caution the interested party herein to be mindful of the constitutional provisions in Chapter 5 of the Constitution especially Article 18 and 23 in the discharge of their mandate. This is to ensure that we do not create a monster out of institutions of State created to help curb crime and thereby lose our constitutionally fundamental human rights to freedom enshrined in the Constitution.’ Supreme Court further admonished all Courts to stay ‘wide awake to protect the rights of the citizens.’

The sum effect of all the laws considered above as relevant to this discussion is that, to succeed, the OSP was first obliged to prove the existence of the properties he sought to freeze by some positive proof. The need for positive proof was more pressing since Sir John was dead, and thus, the evidential standard with which the Court would run was invariably going to be one of strict scrutiny and suspicion against the charges implicitly and explicitly made against Sir John in the OSP’s application. The OSP therefore had to prove with evidence that the properties mentioned in the Will existed and existed in the name of Sir John. Further, the OSP was, by operation of the law, bound to distinguish with particularity between those assets that were tainted and those that were not tainted and was entirely precluded from embarking on an all-encompassing freezing of assets by the principles in Ex Parte Xenon. This means that the OSP’s powers to freeze properties are limited to properties that are established as ‘tainted’. By 'tainted’, what is meant is that the OSP had to supply evidence proving facts that show the properties in question had either been used in connection with the commission of an offense or has been derived, obtained or realised as a result of the commission of a corruption or corruption-related offense

However, the OSP simply failed or refused to lead any relevant evidence except for the Will of Sir John. Curiously, the OSP then went ahead to put that Will into dispute by highlighting to the Court that it was a subject matter of litigation at the High Court. There was no evidence whatsoever linking Sir John to any of the properties mentioned in the Will and linked to Sir John. As a result of the failure to even show the existence of the properties, the OSP further did not show that those properties are in fact tainted, assuming they even exist. The invitation extended by the OSP to the Court, in blunt terms, was to freeze properties he could not even vouch on neither authority nor investigation existed. The OSP's application was thus simply incompetent and had been brought by the OSP without proper evidentiary foundation making it at best reckless and, in all certainty, negligent. The second issue, was therefore properly resolved against the OSP, by the Trial Judge.

But what was even the OSP's Logic?
It is also important to ask: What was the OSP's long game if the freezing order had been granted? As showed above, a confiscation order was not possible, and any belief that one would be granted was neither reasonable nor called for by the circumstances that existed.

Section 40(2) of the OSP Act provides:
Where an investigation has commenced against a person for corruption or a corruption-related offence and the property related to that offence is frozen, the Court shall order the release of the frozen property if

(a) the person is not charged with corruption or a corruption-related offence within twelve months after the issue of the freezing order; or

(b) the person is acquitted of corruption or a corruption-related offence.

A fair reading of Section 40(2) implies that an application to freeze property can only be brought following the commencement of an investigation against a person for a corruption or corruption-related offence, and that where the investigation has either concluded in a charge after 12 months or results in an acquittal after trial, the property shall be released back to the person concerned. Therefore, even if the OSP had been successful in confirming the freezing of the properties purportedly belonging to Sir John after 12 months where there was no charge or conviction against Sir John, the property would have reverted back to his Estate.

In the absence of the ability to charge and prosecute a dead man, the question that had to be asked by any rational OSP was: What is the point of freezing the property when, in any case, it would become the subject of a Section 40(2) application after 12 months? The answer might not come swiftly. But whatever the OSP's reasons might have been for pursuing this outlandish course and on the basis upon which it was ventured, the judgement in the case concerning Sir John was absolutely properly decided and is good law. That explains why the OSP has filed a notice of appeal and left it on the file for more than one year without moving it—an abuse of process often engaged in by lawyers to save face following a defeat in court.

A fascinating case was decided by the Court of Appeal of England and Wales in 2018 called Wingate v Solicitors Regulation Authority. In that case, the Court of Appeal had to define the term 'integrity' in the legal profession. The decision then established that integrity in the legal profession meant more than merely an absence of dishonesty. Instead, it meant "adherence to the ethical standards of one's profession."

The case further established that a lawyer's integrity could be compromised if they did not work to the standard their clients expected. The decision has been essential to upholding the ethical standards of the legal profession. It is an example to lawyers of the importance of conducting themselves with integrity in all their professional dealings. It also serves as a reminder to clients of the exacting standards of conduct expected of their lawyers. Beyond that, the principle established by the case has been widely adopted and is now seen as a cornerstone of the legal profession. It ensures that lawyers act in their clients' best interests and that their advice is based on the highest ethical standards. That helps to keep the trust and integrity of the legal system. At any point, therefore, a lawyer not adhering to the ethical standards of their profession would be acting without integrity.

The ethical rules for lawyers are broad, some arising from common law and others from statutes. But whether common law or statute, a common pattern runs through these rules. Members of the public must have confidence in the legal profession. As part of that aspiration, lawyers must act with a certain level of competence in their dealings, whether with clients, the Courts, or Members of the public. That ensures that the public can rely upon the advice and services provided by lawyers. As such, disciplinary measures are in place to ensure that lawyers are held accountable for their actions. That is an important part of keeping public trust in the legal profession. A lawyer, therefore, cannot set out to deliberately mislead any of these groups. It would be potential contempt if the lawyer misled the Court. Insufficient aid by counsel if they misled a client. In addition, there would be a breach of their duty to public confidence and the rule of law if they misled the public. That does not mean a lawyer cannot have a full view or opinion on matters.

Still, the difference is that, when it comes to the law, the lawyer's view as it relates to the law must always be 'considered'. The lawyer must always be ready to explain the applicable law, no matter what their opinion on the matter is. They should also be able to advise on the best course of action based on the law. It’s the client who needs to decide on what to do. Their submission must not be merely arguable but must be well reasoned and backed by 'authority' of some probative value. At that point, it is not what the lawyer thinks of the law. It is not whether they believe the law is useful or not. That is the province of academia, jurists, and legal theorists. It is about what the law says and what it means or should mean concerning the facts of a given case.

Where the courts have already explained what the law says, it is not open to a lawyer to propose an alternative interpretation of the law because he feels sentimental one way or the other towards a party in a case or potential case. The place for such advocacy is in Parliament and not the courts. That is because the legal system relies on the clarity and consistency of the law. As such, lawyers should stick to the established interpretations of the law and not try to bend it in favour of a particular political or tribal cause. That would be unethical and could lead to an injustice. That is an abuse of the court process. That is an absence of integrity. This lack of integrity can have profound consequences. It can, and does, damage the legal system's reputation, and erode public confidence in the judiciary.

However, Populists like to fight culture wars. They like to set up an 'us' against 'them' dichotomy in every scenario. But 'things' are not always 'us' or 'them'. In a civilized society, 'things' are nuanced. The fight against corruption, for instance, is not a fight between some people who are organically corrupt on one side and a superman OSP on the other. The phrase bundled around that 'if you fight corruption, corruption will fight you' is nonsense. Why? Because the law expects that even when you catch a person red-handed, the person 'fights' you in court to keep his innocence. The law therefore expects an accused person to 'fight' you.

The law, however, expects the Court to be objective, not neutral or partisan. By objectivity, the law requires that in a criminal trial, the court treats the accused person as innocent until their guilt is proved beyond reasonable doubt, and in a civil trial, the party who tilts the evidential scale on a balance of probabilities wins. The Court cannot become partisan by subscribing to or endorsing some fight against corruption set up by anyone including the OSP. If the Court were to do that, then the Court itself would have become corrupt, the judge involved would have acted with 'affection' violating their judicial oath and the entire administration of justice would become unfit for purpose.

In any case, how does a court begin to treat a suspect as corrupt before a verdict has been reached on all evidence? Why must the Court give the OSP an advantage? And if such advantage were extended, what would stop the Courts not to extend such advantage to the Police, to other security services or even to the Executive as a whole? Where will justice be in such a country? The only time the Judiciary can show support for or endorse any 'fight' is at the time of sentencing in criminal trials and in the imposition of costs in a civil trial. Even then, a criminal judge is still limited by their sentencing guidelines. The Chief Justice may go as far as to establish specialised courts. But that is as far as the Court can go.

A day before the OSP's press conference, I said on my social media platform ' I can predict the OSP tomorrow, I expect him to fail to get this distinction and to seek to draw the courts into his own failed housekeeping. He will look to suggest there is an organized cabal somewhere working collectively in a conspiratorial manner to undermine him. He will sadly fail to get what is obviously the problem with his modus operandi. He will not communicate any proper lessons learnt because there will be no admission of error on his path. In all this, he will only confirm what every reasonable person has long suspected.'

The failure to get these important nuances is frankly either incompetent or just dishonest. But whatever it is, it is leading our OSP to blackmail and intimidate our Judiciary when his claim has no foundation in law. And without knowing it, the OSP sinks deeper into the cesspit of unethical conduct each day justifying his eventual arrival on the highway of scandalizing the judiciary. The OSP must seriously consider his own position.

Kofi Opare Hagan