I refer to your letter dated 16 November, 2020 pursuant to which you resigned your position as the first Special Prosecutor appointed in accordance with Section 13(3) of the Office of the Special Prosecutor Act, 2017 (Act 959) (hereinafter, the “Letter”).
The President has taken note of your resignation per the President’s Chief of Staff’s letter to you of even date herewith (SCR/DA/96/135/01/A).
We note, however, that, even before the President had been given the opportunity to react to the contents of your four (4) page Letter, it had been put into the public domain prior to receipt by the President. I am directed by the President to respond to correct the errors of fact contained in your Letter in order to provide a complete public record of the issues.
Alleged Interference with the Independence and Freedom of Action of the Special Prosecutor
1. At the outset, it must be made clear that throughout your tenure as Special Prosecutor, neither the President nor any member of his government has interfered or sought to interfere with your work. Indeed, it is noteworthy that in your letter to the President dated 16 October, 2020, (OSP/SCR/20/12/20) you stated, in part, in relation to the novel nature of the report on the analysis of the risk of corruption and anti-corruption assessment of the gold royalties monetisation transaction (hereinafter the “Agyapa Report”) as follows: “This has been made possible by the courage and commitment of H.E. the President of Ghana in redeeming the promise he made to Ghanaians when he was a Presidential candidate of a political party to establish an independent anti-corruption statutory entity to make meaningful any real commitment to prevent and to fight corruption.
The Office of the Special Prosecutor Act, 2017 (Act 959) established this Office. The President ensured that in the teeth of strong opposition the Special Prosecutor was able to have his way to have included in the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374) the prevention of corruption regulations which to the best of my knowledge may be the first in Africa and meets international standards and best practices”.
2. Again, in a recent 3 August, 2020 letter (OSP/SCR/24/33/20) from you to the Chief of Staff at the Office of the President, you stated, in part, as follows: “I have remained in this Office this long out of personal respect for the President’s shared commitment with me to fight corruption”. It is therefore surprising that you would now make the untenable claim that your resignation is as a result of the President’s alleged interference in your work.
3. At page 1 of the Letter, you claim that you had been “convinced beyond reasonable doubt” that His Excellency the President had a mistaken belief that you would hold office as his poodle. In substantiation of this allegation, you allude to a request by the President’s Chief of Staff, pursuant to a directive by the President, for you to meet the President in the morning of 21 October, 2020, to discuss a “report” you had delivered to the President and which you had described as an analysis of the risk of corruption and anti-corruption assessment of the transaction documents for the Agyapa transaction. Indeed, you also described the “report” as being “in the nature of a compliance audit or an Inspector-General’s report”. It is instructive that the 13 page document you delivered to the President was in fact not the actual report but a summary which also included information about other investigations.
4. Your accusation of interference with your functions simply on account of the meeting the President held with you is perplexing. In exercise of what you considered to be your powers under Act 959, you had voluntarily proceeded to produce the Agyapa Report. The President had no hand in your work. Without prompting from any quarter within the Executive, you delivered a letter purporting to be a copy of your report to the President. The purpose of presenting a copy of the Agyapa Report to the President is decipherable from paragraph 32 of your letter to the President in which you indicate that you hoped the report will be “used to improve current and future legislative and executive actions to make corruption and corruption-related offences very high risk enterprises in Ghana.
5. It is baffling that you would present a summary report of work, not commissioned by the President or a member of the Executive, to him and expect him not to act on the report, particularly in light of the clear expression by your good self that the report was supposed to guide future executive actions. It should be noted that article 58(1) of the Constitution vests executive authority in the President. The President was thus under a constitutional injunction to take further action and make further enquiries of you in relation to the work you had purportedly carried out and which concerned the exercise of executive discretion. The President’s meeting with you on 21 October, 2020 was and should have been understood by you in this spirit.
6. At the meeting of 21 October, 2020, you conceded not having given the appointees of the President affected by your report, a hearing or an opportunity to comment on your observations and conclusions. In accordance with the constitutional standards of fairness, reasonableness and candour, the President requested you to give the public officials in question an opportunity to comment on your findings and conclusions. Fidelity to the principles of fairness is a basic tenet of administrative justice. A request to comply with the rules of natural justice and fair hearing surely cannot be cited as a basis for alleging interference consequent upon which you would resign.
7. In any event, it is pertinent to point out that, without compulsion, you agreed to the President’s request to offer the public officers affected by your work an opportunity to comment on what you now strangely characterise in your Letter as “serious corruption and corruption-related offences”. It was pursuant to the clear concession on the need to give the public officers, whose conduct had been impugned by your report, an opportunity to be heard on the matter that the President requested comments from the Ministry of Finance. The assertion by you that you “reluctantly agreed” is neither borne out of facts nor what actually transpired at the meeting between you and the President on 21 October, 2020.
8. At the meeting of 1 November, 2020, the President duly delivered to you the response of the Ministry of Finance to the allegations contained in the “Agyapa Report”. In a rather dramatic turnaround, you refused to accept the comments of the Ministry of Finance. This was most disturbing, especially in light of your statement at paragraph 33 of your letter to the President dated 16 October, 2020, that your report “was in the nature of a compliance audit or an Inspector-General’s report which needs to be taken seriously …”. It is baffling that you would purport to prepare a “compliance audit” and yet deny the subjects of the audit a hearing. It is also noteworthy that on 2 November, 2020, you released the actual 64-page “Agyapa Report” which the President had hitherto no knowledge of, to the public. It is extremely important to emphasise that the subject of your discussion with the President on 1 November, 2020, was the delivery to you of comments on your report by the Ministry of Finance. At no point did the President ask you to shelve the report so he could “handle the matter”. It is difficult to see in what way and in what context the President would seek to “handle the matter” when the matter was already public knowledge and had led to the Ministry of Finance suspending action on the Agyapa transaction in anticipation of your report. You are clearly aware that the President had accepted the observations you had made in the Agyapa Report and had acted on it by issuing directives to officials of the Ministry of Finance and the Attorney-General’s Department. This cannot be the conduct of a person seeking to hamstring your efforts or to avoid the contents of the Report.
9. It is also important to recall that even though your denial of officials of the Ministry of Finance an opportunity to be heard on your report was unreasonable, the President did not resist your refusal to accept the comments. Furthermore, a copy of the Agyapa report as well as a report of what had transpired between yourself and the President found its way to the public domain. As an expression of the President’s commitment to the success of your Office, there was no complaint from the Presidency.
10. It must be emphasised that other than in respect of the Agyapa Report, you have never made any claim of interference in your work by the President. Indeed, even when you erroneously and without moral or legal basis decided to confer immunity from investigation and prosecution on the presidential candidate of the National Democratic Congress, His Excellency John Dramani Mahama, in connection with the infamous five million Euro Airbus bribery affair, by refusing to investigate him on the clearly untenable grounds of his being a candidate for President, neither the President nor any member of the Executive challenged that strange exercise of your discretion. Surely this was in furtherance of the protection of the independence of your office. It is stranger still that you would now suggest that the President, who some may argue, would have benefitted politically from the prosecution of John Mahama, has interfered with your independence by suggesting that you apply the rules of natural justice to officials concerned with the Agyapa assessment.
11. We are constrained to point out that your claim of there being a belief that you “dared to write the Agyapa Report” which consequently led to the alleged interference with your mandate cannot be correct. As noted already, the President welcomed the report and acted on it solely within his mandate, which was the proper thing to do. It is difficult, therefore, to further comment on that particular claim since nothing the President or any official did could be remotely construed as interfering with your mandate as Special Prosecutor.
Effect of the Agyapa Report
12. At page 2 of your Letter, you create an impression that you had uncovered “serious corruption and corruption-related offences” regarding the Agyapa transaction in respect of which you “intended to open full investigations as the Special Prosecutor”. This statement is most disingenuous and is not supported by the facts. You never expressed an intention to the President to open investigations into the matter. Indeed, at paragraph 33 of your letter to the President dated 16 October, 2020, you say:
“This assessment does not constitute an investigation even though formal investigations for the suspected commission of corruption and corruption-related offences may arise from this corruption risk assessment.”
The real question is what prevented your Office from investigating the alleged corruption-related offences which may have arisen from your assessment of the Agyapa transaction.
13. Having clearly indicated that your report was not a criminal investigation which you are mandated under section 2 of Act 959 to carry out, it is confusing and incomprehensible how you can, in your Letter, claim that your report “discloses several serious corruption and corruption-related offences”, without you taking any further step in the matter consistent with your mandate.
14. It is difficult to find any tangible basis for the claim of political interference in the performance of your functions from 20 October, 2020 to 1 November, 2020. The President’s meetings with you and the request for you to give the public officers a hearing cannot sincerely or properly give rise to such an allegation.
Alleged Operational Difficulties Encountered by the Office of Special Prosecutor
15. At page 3 of your Letter of resignation, you allude to various matters bordering on respect of operational challenges encountered by the Office of the Special Prosecutor, which militated against the independence of the Office. The facts are that consequent upon your appointment as Special Prosecutor, the President instructed the Chief of Staff of the Presidency and the Minister of Finance to ensure that they do their utmost to assist in the expeditious set-up of your Office. Indeed, the records show that in keeping with his resolve to sufficiently equip the Office in the discharge of its mandate under Act 959, the President offered the provided your Office of the Special Prosecutor the necessary financial and administrative support. The Your Office received more than a sufficient budgetary allocation to assist it in its anti-corruption fight. Remarkably, your letter of resignation alludes to the consistent deprivation of finances and a financial handicap imposed on the Office of the Special Prosecutor. You also bemoan the non-payment of the salaries of yourself, and the Deputy Special Prosecutor in a manner that suggests Government’s failure to do so. Yet, your Office had been adequately funded to pay for salaries. The impression given by you that there was a deliberate intention to ensure your office didn’t function is the more startling.
16. In 2018, an amount of GHC1,000,000.00 was released to your Office to enable it undertake set-up activities. In June 2018, the your Office requested and was granted Commencement Authorisation to incur Capital Expenditure of GHC2,790,000.00. You failed to make a request for payment in respect of the related procurement.
17. In 2019, the your Office submitted a Budget Proposal of GHC360 million out of which Gh¢180,160,225 was approved and appropriated for the Office. This amount was higher than the budget of some Ministries in the current Government, and was made up of GHC33.47million for Compensation of Employees, GHC88.01million for Goods and Services and GHC58.68million for Capital Expenditure. Although the your Office did not apply for release of funds in 2019, the Ministry of Finance released GHS65.69million and transferred it into the bank account of the your Office for your operations. Only a little of over GHC5.22million had been utilised by you as head of the Office of the Special Prosecutor. In accordance with administrative practices, the unutilised amount of over GHC60.47million should have been returned to the Consolidated Fund, as happens to all Ministries, Departments and Agencies which do not utilise their budget. However, in the case of your Office, the Ministry of Finance rolled over the excess amount of over GHC60.47million to the following year to be utilised by it., Yet, the funds still remain in the bank account of the Office as at 12 November, 2020.
18. In 2020, the Approved Budget for the your Office was Gh¢188,084,732.00 out of which GHC39,325,597.17 has so far been released, consisting of GHC36,232,522.00 for Compensation of Employees. Curiously, the Office has not accessed the amount on GIFMIS, the Government’s payments platform. The Your Office has so far spent only GHC308,751 on compensation of employees. Taking account of the amount that was rolled over from the year 2019, the account of the Office of the Special Prosecutor at Bank of Ghana, as at 12th November 2020, shows a balance of GH¢60.47 million.
19. The Compensation Budget for the Office of Special Prosecutor in 2019 was not utilized because your Office was not able to recruit relevant staff by the end of the year. In 2019 financial clearance was given to yourthe Office Office of Special Prosecutor to recruit 249 staff. As at the end of the year the staff had not been recruited. The failure of your Office to recruit personnel cannot be laid at the doorstep of government. It is imperative to state that your Office, duly established as a procurement entity by law, is clothed with full capacity to engage in procurement of goods, works and services. Prior to the grant of “procurement entity status” to the your Office, you publicly attributed your failure to recruit and engage in proper procurement of goods, works and services to the failure of the Public Procurement Authority (PPA) to consider and grant your application. The PPA has since granted your application but no recruitment has been done. Whilst having the liberty to freely express yourself, it is most unfair of you to misrepresent the nature and degree of support accorded to your Office by Government, when the records suggest otherwise. As already demonstrated, sufficient budgetary allocation and release of funds for recruitment of staff by your Office had been made by Government. Your Office’s failure to utilise allocated funds, even though it claimed an urgent need to, is not a question that can be answered by anyone else in Government.
20. The Ministry of Finance subsequently re-issued the clearance to recruit staff in the year 2020. You insisted on being allowed to manage the payroll of the your Office because of confidentiality and independence. The Controller and Accountant-General was given approval to make monthly releases to the your Office based on its request for funds for payment of salaries for all staff. Information available to the Office of the President indicates that only two persons were recruited by your Office and that the rest of the staff of the Office are on secondment from the Ministry of the Interior and the Controller and Accountant-General’s Department.
Source: Jubilee House