Op-ed: Is this the Special Prosecutor Ghana has been waiting for?

GHANA’S first special prosecutor Martin Amidu resigned amid considerable controversy in November 2020. Kissi Agyebeng (pictured), a comparatively youthful lawyer, has been nominated as his replacement and is due to face parliamentary approval in the coming days, writes Kobi Annan.

Significance – Age, clarity and caseload

Agyebeng’s appointment is still not official. He was nominated by Attorney General and Justice Minister Godfred Dame according to a letter to the president sent on April 16, just filling the legal requirement for a nomination to be made within six months of Amidu’s resignation. However, there has been no communication on the matter from the presidency. Assuming the nomination is accepted, Agyebeng will face vetting by parliament’s appointments committee and will need to be confirmed by an absolute majority of MPs.

There is no questioning Agyebeng’s professional qualifications. He was top of his graduating class from the University of Ghana Law School in 2001 and subsequently obtained masters degrees from Dalhousie University in Canada and Cornell Law School in the US. He has been a practicing lawyer in Ghana since 2003 and the Managing Partner at Cromwell Gray LLP since 2013. He holds a number of other positions including his most recent appointment as the chair of the Electronic Communications Tribunal in Ghana in 2019. He has also been lecturing in law since 2006 at various institutions.

One of the most notable factors is Agyebeng’s age, he is 43 which is very young given the gerontocratic nature of Ghanaian politics and governance. By contrast, Amidu was aged 66 at the time of his appointment. There are questions whether he and Dame (himself 41) can stand up to senior government figures when necessary. The relationship between Dame and Agyebeng will be a key one as it is the attorney general who must give approval for the special prosecutor to commence any investigation.

The law governing the OSP (Act 959, 2017) refers to eleven specific infractions that can be investigated by the OSP though the interpretation of these infractions can be quite wide. It includes matters such as public procurement, bribery and the falsification of election returns.

However, Amidu’s tenure as head of the Office of the Special Prosecutor (OSP) was marked by long periods of frustration, inactivity, accusation, and confusion. There were instances in which he said he did not have the authority to take on certain cases and others in which he said his work was being interfered with. Amidu’s resignation also brought up several questions including where the OSP would be housed and the adequacy of funding for their activities. These are all issues that must be tackled head-on by Agyebeng early on in his tenure if he is to be able to operate in any kind of efficient manner.

In addition to these administrative and procedural challenges, Agyebeng’s in-tray already includes a number of prominent items. Or should do. The first is the highly controversial Agyapa Mineral Royalties deal that was the main reason behind Amidu’s departure. It has been described as primarily beneficial to a number of senior government officials and is still not resolved – many figures in academia and the opposition are already calling on Agyebeng to clearly state his position on the matter and it is likely that this will take up a significant portion of the vetting process.

Other key cases that could be investigated include the Airbus bribery saga that allegedly involves former President John Dramani Mahama and a recently uncovered accusation that the award of a port terminal construction project (again during Mahama’s tenure) was steeped in bribery. Agyebeng’s mandate does also allow him to attempt to tackle corruption in its most damaging form, where it intersects with and hinders the extremely valuable SME sector – Ghana is full of anecdotes of products being denied certification until a bribe and other requests for brown envelopes to exchange hands.

Outlook – Party rules

The vetting process will be stringent and contentious. There have been internal struggles within the opposition National Democratic Congress (NDC) over its approval of some ministers seen as unfit during the recent round of vetting ministerial nominees. This may lead to increased pressure on Agyebeng, especially regarding his seeming lack of anti-corruption experience and his as yet unclear stance on key issues such as Agyapa.

The immediate impression is that Agyebeng lacks many of the attributes that made Amidu an ideal fit for the role: years campaigning against corruption; experience from within the political system; general bipartisan support and an age that commands a certain level of respect within Ghanaian culture. Many of the cases he has recently taken on in private practice would suggest that he is sympathetic to the government’s cause. This contributes to concerns about his ability serve in the entirely unbiased manner expected of someone whose main priority is investigating government corruption. In short, whether he is more of a political appointee than an avid anti-corruption crusader.

Kobi Annan is a consultant in Songhai Advisory’s Accra and London offices. Songhai Advisory provides local knowledge, strategic analysis and risk assessment facilitating transformative and sustainable investment in Sub Saharan Africa


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