Approach to impeach the Special Prosecutor is wrong – lawyer

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A private legal practitioner Kwame Akuffo has punched holes into the ongoing process of impeach the Special Prosecutor, Kissi Agyebeng. He said the processes are flawed because the law being applied cannot be used to impeach Kissi Agyebeng.

According to him, basing on Article 146 of the 1992 Constitution to impeach the Kissi Agyebeng is unconstitutional. As a result, he said, the “validity of the reference by the President to the Chief Justice, for purposes of Impeachment Proceedings, against the Office of the Special Prosecutor” must be questioned.

 “The fundamental question which arises for pertinent consideration is as to whether or not the Special Prosecutor, is an Office holder whose conduct can be the subject matter of Impeachment, under Article 146 of the 1992 Constitution, on the basis of a reference by the President, under Section 15 of the Office of the Special Prosecutor Act, 2017(Act 959).

“I answer that question in the negative, for the simple reason that Article 146 of the 1992 Constitution, does not admit of the Office of the Special Prosecutor, as one where the Special Prosecutor is amenable to the Impeachment provisions under the said Article. Section 15 of the Office of the Special Prosecutor Act, 2017(Act 959), is an illegitimate tool, which cannot be deployed, to amend Article 146 of the 1992 Constitution and that, invariably, conduct pursuant to Section 15 (supra), is a violation of Articles 289 and 290 of the 1992 Constitution.

“By way of background, it is instructive to note that, the Office of the Special Prosecutor Act, 2017(Act 959) places the Office on almost the same pedestal as a Court of Appeal Judge, appointed under the 1992 Constitution.

“To that end, there is a need for us to question the validity of the reference by the President to the Chief Justice, for purposes of Impeachment Proceedings, against the Office of the Special Prosecutor. Perhaps, Parliament should legislate other methods for removal of the Special Prosecutor.

“It is respectfully submitted that, in conclusion, Section 15 of the Office of the Special Prosecutors Act, 2017(Act 959), is a violation of Articles 289 and 290 of the 1992 Constitution. It is a backdoor attempt to amend the Constitution, and the same is wholly unacceptable.”

Background of petition to remove the Special Prosecutor

Kissi Agyebeng is under scrutiny and faces impeachment following a petition filed by the former Special Prosecutor Martin Amidu against him. Martin Amidu petitioned the president in a petition dated April 30, 2024, seeking the removal of the Kissi Agyebeng for procurement breaches among other infractions.

President Akufo-Addo upon receiving the petition forwarded it to the Chief Justice to proceed with the process. Chief Justice Gertrude Torkornoo on May 17 wrote to Kissi Agyebeng and asked him to submit his response to the petition.

If a prima facie is established against the Kissi Agyebeng, he would be removed from office. Since the news broke, many legal brains have provided an opinion. One of such notable names is Amanda Clinton. She said on Joy FM’s NewsFile that “Amidu’s petition, although well laid out, does not go far enough to justify an investigation or a committee being set up because I don’t think a prima facie case necessarily exists apart from the procurement issue.”

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