The Dean of the University of Professional Studies, Accra (UPSA) Law School, has highlighted that neither the 1992 Constitution of Ghana nor the law establishing the Office of the Special Prosecutor (OSP) provides a clear basis to determine if Special Prosecutor Kissi Agyebeng has ‘misbehaved’ in office.
According to Professor Ernest Kofi Abotsi both the Constitution and the OSP Act fail to clearly define what constitutes misbehaviour.
This lack of clarity makes it difficult to assess the legality of Agyebeng’s actions, which are within his official mandate, including his public engagements.
Prof. Abotsi explained that the ultimate decision on whether Agyebeng’s actions amount to wrongdoing would rest with the committee established by the Chief Justice of Ghana, should the matter progress that far.
“Incompetence – we can assume that we probably will recognise what incompetence is, but stated misbehaviour presupposes that there are constituent aspects of what can be considered a misbehaviour,” he is quoted to have said.
Prof Abotsi added, “However, because the two laws do not define it, the Constitution doesn’t define it, so we can’t make reference, and the Act also doesn’t define it – it means the one making a determination by way of impeachment – the panel making the determination would have to decide whether the particular act meets that threshold of stated misbehaviour”.
He further explained, “While we might assume what incompetence is, stated misbehaviour implies specific criteria that are not defined by these laws. Therefore, the panel responsible for making the determination during the impeachment process would need to decide if a particular act meets the threshold of stated misbehaviour.”
This statement follows President Akufo-Addo’s decision to forward a petition for the removal of Kissi Agyebeng as Special Prosecutor to the Chief Justice.
The petition, dated April 30, 2024, was submitted by former Special Prosecutor Martin Amidu and relayed to Justice Gertrude Torkonoo on May 6, 2024.
Mr Amidu’s petition alleges procurement irregularities in the acquisition of vehicles for the OSP and misconduct involving judges and the administration of justice.
Additional accusations include the infringement of citizens’ rights through arrests and detentions, breaches of the right to information, and the inappropriate appointment of staff to the office.
In accordance with Article 146 of the Constitution, Chief Justice Justice Gertrude Torkonoo is currently assessing whether there is sufficient initial evidence to form a committee for Agyebeng’s potential impeachment.
She has reportedly asked the Special Prosecutor to respond to the issues raised in the petition.