Evidence Displays Ghana Needs an Independent Prosecutorial System, Says Prof H. Kwasi Prempeh

Introduction

The debate over the structure of Ghana’s prosecutorial authority has intensified following a critical analysis by Professor Henry Kwasi Prempeh, the Chairman of the Constitution Review Committee. In a candid interview on Joy News, Prof. Prempeh presented a compelling argument that the current system, which vests prosecutorial powers in a politically active Attorney General, is fundamentally flawed. The core of his thesis is that the evidence of the last few years demonstrates that the current machinery is not working and requires comprehensive reform to ensure independence and credibility.

This article delves into the constitutional and political nuances of Prof. Prempeh’s critique, exploring why the fusion of political ambition with prosecutorial discretion undermines the fight against corruption. We will examine the distinction between a career Attorney General and a political appointee, the impact on public trust, and the comparative models that Ghana might consider for a more effective justice system.

Key Points

Background

To understand the gravity of Prof. Prempeh’s statement, one must look at the historical context of Ghana’s legal framework. The Office of the Attorney General serves a dual function: it is the principal legal advisor to the government and the authority responsible for the prosecution of criminal offenses on behalf of the state.

The Conflation of Roles

Prof. Prempeh highlights a critical deviation in Ghana’s current practice. He contrasts the present situation with a “career attorney general” setup. Historically, a career system implies a professional legal expert who serves the state regardless of the ruling party. However, he notes that the current structure is different. The Attorney General is not a neutral civil servant but a political figure who often doubles as a Member of Parliament (MP) and an active participant in partisan politics.

This creates a scenario where the individual responsible for deciding who gets prosecuted is also deeply invested in the survival and electoral success of the ruling party. As Prof. Prempeh notes, “Constitutions are made for human beings,” implying that the design of the office must account for human incentives and political survival instincts.

Analysis

The central flaw identified by Prof. Prempeh is the contradiction of expecting a political actor to act impartially against their own allies or political rivals. This section analyzes the mechanics of this dysfunction.

The “Human Incentives” Problem

Prof. Prempeh argues that constitutions are designed for real people, not abstract ideals. When a politician is appointed as Attorney General, their primary incentive is often political survival and party loyalty. Expecting them to vigorously prosecute corruption within the incumbent government is, in his view, unrealistic.

He asks the rhetorical question: “It’s obvious that if it was going to work, why hasn’t it worked?” This points to a historical lack of high-level corruption prosecutions against sitting officials, suggesting that the system naturally protects its own.

The Myth of Political Turnover as a Solution

A common argument in Ghanaian political discourse is that the “chickens will come home to roost” when power changes hands. The theory suggests that an opposition party, upon winning an election, will prosecute the previous administration for corruption. Prof. Prempeh dismisses this as a flawed strategy for several reasons:

1. Time Limitations: A four-year term is often insufficient to investigate complex cases, prosecute, and secure convictions before the next election cycle.
2. Uncertainty of Return: There is no guarantee that the opposition will ever return to power to exact this “revenge.”
3. The Pardon Cycle: Even if a new administration prosecutes the old one, it sets a precedent for retributive justice. As Prempeh notes, “The other side will come and pardon another person,” leading to a cycle that lacks moral authority.

The Erosion of Institutional Legitimacy

Perhaps the most damaging consequence of the current system is the loss of public trust. Prof. Prempeh observes that Ghanaians view prosecutions through partisan lenses. Even if the state presents irrefutable evidence of corruption, the public is likely to interpret it as a political witch-hunt.

He explains: “If you came and said, look, I’m going after this target genuinely, because evidence is leading me this way, Ghanaians will doubt you.” This skepticism destroys the legitimacy of the judiciary and the prosecution, making it nearly impossible to build the social consensus needed to fight corruption effectively.

Practical Advice

Based on the analysis provided by Prof. Prempeh and comparative constitutional law, what are the practical steps Ghana can take to reform the prosecutorial machine?

1. Structural Separation of Powers

The most direct recommendation is to separate the role of the Attorney General from the role of the Chief Prosecutor. This involves establishing an independent Department of Public Prosecutions (DPP) headed by a career legal professional who is insulated from political interference. The DPP would have the constitutional autonomy to decide which cases to pursue without needing approval from a politician.

2. Independent Anti-Corruption Bodies

Ghana already has agencies like the Office of the Special Prosecutor (OSP), but the friction between these bodies and the Attorney General highlights the need for clearer mandates. Strengthening the OSP to be the primary body for high-level corruption cases, free from the oversight of a political AG, would align with Prof. Prempeh’s call for reform.

3. Constitutional Amendments

Prof. Prempeh suggests looking at the Kenyan model. The 2010 Constitution of Kenya created a Director of Public Prosecutions (DPP) independent of the Attorney General. Ghana may need to amend its constitution to remove prosecutorial powers from the Attorney General entirely, leaving them with advisory roles only.

4. Cultural and Convention Building

While structural change is vital, Prof. Prempeh acknowledges that the United States has managed to maintain a system where the Attorney General is a political appointee yet prosecutions occur across party lines. However, he attributes this to “deep conventions” built over centuries. For Ghana, building such a culture is a long-term project, but immediate structural safeguards are necessary to bridge the gap.

FAQ

Conclusion

Prof. Henry Kwasi Prempeh’s assessment serves as a stark warning about the fragility of Ghana’s democratic institutions. The evidence he presents suggests that the current prosecutorial machinery is not just failing to convict corrupt officials but is actively eroding public trust in the rule of law. By conflating the role of a political advisor with that of a prosecutor, the system creates an environment where justice appears selective and politically motivated.

The path forward requires courage to admit that the current system is not working. As Prof. Prempeh suggests, Ghana must look beyond the status quo and consider structural reforms that insulate the prosecutorial function from political interference. Whether through a career-based Attorney General’s office or a fully independent prosecution service, the goal remains the same: to build a system where the evidence leads, and politics follows.

Sources

• Primary Source: Joy News Interview with Prof. Henry Kwasi Prempeh (December 25).
• Institutional Context: Ghana Center for Democratic Development (CDD-Ghana).
• Constitutional Reference: The Constitution of Ghana, 1992 (Article 88).
• Comparative Law: The Constitution of Kenya, 2010 (Chapter 15: The Office of the Director of Public Prosecutions).