The role of Ghana’s Attorney-General and Minister of Justice has come under intense scrutiny following recent testimony by Mr. Jakpa in open court, alleging that the current Attorney-General, Godfred Yeboah Dame had held multiple meetings with him at unusual hours and engaged in numerous phone conversations.
According to Mr Jakpa, these interactions were aimed at pressuring him to alter his testimony to incriminate the Minority Leader, Dr Cassiel Ato Forson in the ongoing Ambulance trial.
These claims have sparked widespread criticisms and have reignited the debate over the Attorney-General’s role in criminal prosecutions, with many calling for significant reforms to ensure impartiality and uphold the rule of law.
Renowned lawyer and Executive Director of the Ghana Centre for Democratic Development (CDD-Ghana), Professor H. Kwesi Prempeh, commenting on the vexed matter advocated for a clear separation between the Attorney-General’s office and criminal prosecutions.
Professor Prempeh’s perspective shed light on the critical need for reforms in the legal and prosecutorial system of Ghana, especially given the highly polarized nature of its two-party politics.
In a comprehensive statement, Professor Prempeh outlined his concerns about the current structure, where a politician-Attorney General directs and leads criminal prosecutions, particularly in high-profile cases involving politicians and politically exposed persons.
He emphasized that this practice undermines public confidence in the impartiality of the prosecutorial function and raises justifiable suspicions of partisan bias.
“The image of an A-G, who is a member of Cabinet and serves at the pleasure of the President, initiating and leading criminal prosecutions in court, particularly of politicians of the rival party, is not one that inspires confidence in the impartiality of the prosecutorial function”.
Professor H. Kwesi Prempeh, a renowned lawyer and Executive Director Ghana Centre for Democratic Development (CDD-Ghana
Professor Prempeh’s remarks underscored a fundamental issue, which is the potential misuse of prosecutorial powers for political ends, which he noted threatens the very foundation of the rule of law.
He contended that the Attorney-General should be confined to advising the government on legal policy and law reform, representing the state in civil and constitutional litigation, international transactions, negotiations, and arbitration.
Criminal prosecutions, he argued, should be handled by a nonpolitician, constitutionally independent Director of Public Prosecutions (DPP).
This model, according to Professor Prempeh was effective in Ghana’s past, adding that growing up, all the high-profile criminal prosecutions were led in court by the Director of Public Prosecutions and not an Attorney-General.
However, Professor Prempeh decried that the current practice in the 4th Republic has reversed the trend, placing the prosecutorial power in the hands of a politically-appointed Attorney-General, precisely when such powers should be insulated from political influence.
Drawing parallels with Kenya’s 2010 Constitution, Professor Prempeh highlighted how the East African nation addressed similar concerns by separating the roles of the Attorney-General and the Director of Public Prosecutions.
The separation, he recounted was aimed at depoliticizing prosecutions and restoring public trust in the fairness of the legal system.
“In this, Kenya’s 2010 Constitution shows the way. They, too, once had an all-powerful politician A-G who also possessed the power of prosecution. They learned from their experience what damage that arrangement could do to the rule of law and public trust in the fairness and impartiality of the legal system as it concerns whether, who, and when to prosecute.
“They have chosen a different path based on that learning. Not a perfect solution, but it does represent progress toward depoliticizing prosecutions and the rule of law”.
Professor H. Kwesi Prempeh, a renowned lawyer and Executive Director Ghana Centre for Democratic Development (CDD-Ghana
Measures for the Use of the A-G’s Prosecutorial Powers
To address the immediate concerns within Ghana’s existing constitutional framework, the Executive Director of the Ghana Centre for Democratic Development, Professor H. Kwesi Prempeh called for the adoption of sensible conventions and best practices around the use of the Attorney-General’s prosecutorial powers.
Among several measures, Professor Prempeh advocated that the Attorney-General must not lead or direct prosecutions in court in any case involving a politician or politically exposed person, adding that such function should be handled exclusively by the Director of Public Prosecutions.
Professor Prempeh also emphasized that under no circumstances should the President direct or instruct the prosecution of any person, arguing that such power belongs solely to the Attorney-General and must remain free from executive interference.
He further asserted that any instruction from the Attorney-General to the Director of Public Prosecutions to prosecute or discontinue prosecution of a politically exposed person must be documented in writing, along with the reasons for the decision.
Additionally, Professor Prempeh emphasized that the Attorney-General, despite being a political appointee, must refrain from active involvement in party politics to maintain the integrity and impartiality required by the nature of the office.
He concluded by underscoring the urgent need for the country to undertake reforms to remove the politician-A-G from the business of criminal prosecutions entirely and elevate the DPP to a constitutionally independent position.
He emphasized that by doing so, Ghana can depoliticize the prosecutorial function and ensure that legal processes are not manipulated for partisan gains.
In light of the above and given the damning nature of the allegations levelled against the Attorney-General, Godfred Yeboah Dame, there is therefore an urgent need for reform in Ghana’s prosecutorial system.
Adopting Professor Prempeh’s recommendations could pave the way for a more just and impartial legal framework, strengthening the rule of law and fostering public trust in the legal system.
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