On 12 October 2023, I received the hitherto unfathomable news that the Special Prosecutor, Kissi Agyebeng, had finally summoned the audacity and impunity to personalize the process of criminal justice administration by writing a petition to the Chief Justice against a justice of the superior court from presiding over all criminal cases he is conducting on behalf of the Republic of Ghana. After excelling in unlawfully fishing for evidence to prosecute citizens in violation of the enjoyment of their fundamental rights and freedoms to personal liberty and presumption of innocence, Kissi Agyebeng has now graduated to fishing for a court and a judge to do his bidding in the investigation and prosecution of all cases he prosecutes before the courts of Ghana.
Almost half of my 45 years as a lawyer were spent professionally investigating, prosecuting, or directing the prosecution of all manner of criminal offences under the laws of Ghana under the authority of the Attorney-General. I do not recall any moment in which any Attorney-General petitioned the Chief Justice to recuse or remove a Justice of the Superior Court presiding over a criminal matter on grounds of prejudice against the Republic of Ghana or the person the Attorney-General or an authorized officer of the Office of the Attorney-General.
Wonders, they say, will never end. I was pleasantly surprised, therefore, when a media person left an SMS message on my phone on 12 October 2023 at 11:12 am indicating an intention to speak to me during the 12 O’clock news on an alleged petition written by the Special Prosecutor to the Chief Justice to remove the judge presiding over the case involving Cecilia Abena Dapaah and her spouse. I politely declined the temptation put in my path when I had not seen any evidence of the fact that a petition had been made to the Chief Justice as alleged.
It was later that I read online a news item of even date written by one Emmanuel Ebo Hawkson posted on graphiconline.com at 10:35 am reporting that:
Attached to the news report was a terse statement issued by the Special Prosecutor notifying the public on Facebook that:
“The OSP has requested the Chief Justice to recuse and remove His Lordship Justice Edward Twum from all cases involving the OSP pending before him. The request is grounded on the OSP’s well-founded belief that Justice Edward Twum appears to be highly prejudiced against the OSP and the person of the Special Prosecutor. Consequently, as it stands, the OSP would not and cannot be reasonably expected to be parties to proceedings before the said judge.”
“Wonders will never end”, indeed! And “if we do not die early we shall see things”. The cases put before the High Court (Financial & Economic Crime Division 2), Accra, presided over by Mr. Justice Twum are not between the Special Prosecutor in his personal capacity and the suspect, Cecilia Abena Dapaah, and her spouse. This used to be Mrs. Justice Afia Serwah Asare-Botwe’s court which handled almost all criminal cases and applications from the OSP during and after my tenure as the founding Specia Prosecutor before her elevation to the Court of Appeal.
The cases are in substance between the Republic of Ghana, and Cecilia Dapaah and her spouse. As a quasi-judicial law enforcement and prosecutorial office assisting the courts to administer criminal justice as demanded under the 1992 Constitution the OSP and the Special Prosecutor have no personal or vested interest in the outcome of cases presented before the superior court to engender prejudice or bias against the OSP or the person of the Special Prosecutor.
Every civic-minded citizen will recall that on 31 August 2023, Mr. Justice Twum speaking ex-cathedra in a ruling in the application styled the Special Prosecutor vs Cecilia Abena Dapaah, in which the Special Prosecutor represented the Republic of Ghana, declined an application for an order(s) for the confirmation of the seizure and freezing of the property of Cecilia Abena Dapaah and made consequential orders thereto. The Special Prosecutor, Kissi Agyebeng, unethically and unprofessionally issued a public notice to the media disagreeing with the decision and orders of the High Court. Mr. Kissi Agyebeng knowing very well that he had no legal grounds to appeal against the ruling and orders of the High Court did not file an appeal against the ruling and orders of the court. The Special Prosecutor, a public officer, paid and protected at the expense of the taxpayer was merely engaged in grandstanding in the media to spite the court for its ruling, pure and simple.
As a sequel to his unethical, unprofessional, and unconstitutional conduct, Kissi Agyebeng, the Special Prosecutor on 5 September 2023 having put his house in order (or disorder) filed a fresh and rehashed application in the High Court on behalf of the Republic of Ghana again styled the Special Prosecutor v 1. Cecilia Abena Dapaah and 2 Daniel Osei Kufuor for an order for the confirmation of the seizure and freezing of the subject matter of his earlier dismissed application with the hearing date fixed far away to 18 October 2023. Cecilia Dapaah and her spouse as Respondents filed their affidavit opposing the Republic of Ghana’s application against them. They also applied to the court to abridge the hearing set for 18 October 2023 to an earlier date which was set down for hearing on 11 October 2023.
The Special Prosecutor who had taken the long date of 18 October 2023 in the hope of continuing to have possession of the seized and frozen property of the Respondents and to fish for his preferred court and a judge to hear the application was disappointed when incidentally, the judicial administration listed the Republic’s application for orders confirming the seizure and freezing of the property of Cecilia Dapaah and her spouse before the High Court (Financial & Economic Crimes Division 2) Accra, presided over by Mr. Justice Twum. Any experienced prosecutor should have known that it is normal and routine in the administration of criminal justice for such a case to be listed before the court which had been assigned responsibility for the earlier case for purposes of consistency. Indeed, this was the same court then presided over by Mrs. Justice Asare-Botwe which in a ruling dated 12 July 2023 dismissed an earlier application by the Republic against the property of Sir John in the case the Special Prosecutor v 1. Charles Owusu and 2. Nana Boakye Acheampong, popularly known as the Sir John case.
The Respondent’s application for an early hearing was accordingly heard on 11 October 2023 with the presiding judge making a ruling setting down the hearing of the application for an order or orders for the confirmation filed by the Applicant on 5 September 2023 to the next day, 12 October 2023. The Special Prosecutor or his authorized officers did not object to the
court or the judge hearing or continuing with the cases on grounds of real likelihood of bias or prejudice against the Republic of Ghana at the hearing of the case on 11 October 2023 to enable the court to make a ruling on any such objection.
The Special Prosecutor, apparently, as part of his tacit bargaining in the media and the court of public opinion to influence the outcome of the cases of the Republic pending before the High Court, again unlawfully, unethically and unprofessionally issued a notice to the public and also on the X platform on 11 October 2023 at 11:27 am informing the whole world that the OSP and the Federal Bureau of Investigation (FBI) in the United States of America have initiated concurrent investigations into the activities of former Sanitation Minister, Cecilia Abena Dapaah and her associates “primarily focus on examining their assets and financial transactions within the United States of America.”
During my tenure as the founding Special Prosecutor of the OSP, Mrs. Justice Afia Serwah Asare-Botwe presiding over the same High Court (Financial & Economic Crime Division 2) Accra, was assigned, heard almost all the applications for orders to confirm seizures and freezing of property, and the presided over the trial of charges against accused persons that were filed on behalf of the Republic by the Special Prosecutor. She made several adverse rulings and judgments in the cases brought before her by the OSP against the Republic as it was her prerogative to do without any obnoxious publications in the media by me, as the Special Prosecutor calling into question any of her decisions. (See, for instance, the various applications and cases in the Republic v Mahama Ayariga & Another and the Republic v Hajia Hawa Ninchiama & 6 Others decided by Mrs. Justice Asare-Botwe).
But when Mrs Justice Afia Serwah Asare-Botwe presiding over the same High Court (Financial & Economic Crime Division 2) Accra declined Special Prosecutor, Kissi Agyebeng’s application in the Special Prosecutor v 1. Charles Owusu and 2. Nana Boakye Acheampong, popularly known as Sir John case on 12 July 2022 incurred his umbrage and an appeal to the Court of Appeal which he has since refused or failed to pursue. My considered and published article on the conduct of the Special Prosecutor at that time is available online and on my website.
Ghanaians will recall that on 29 July 2023, I had occasion again to publish a considered article entitled: “The Kissi Agyebeng’s OSP picks people that he thinks that he should, rather than pick the cases that need to be prosecuted”. In that article, I questioned the professional experience and competence of Kissi Agyebeng as Special Prosecutor and stated inter alia that:
“….the deficiencies in the investigatory and prosecutorial experience of Mr. Kissi Agyebeng is what has haunted him into overdrive to think that he can earn the trust of Ghanaians by appearing to talk tough and threatening to investigate and prosecute “everyone and every person” on mere suspicion …. without first establishing reasonable grounds for such suspicion as though he was on a fishing expedition.” (Emphasis supplied).
The petition of Kissi Agyebeng to the Chief Justice of which he gave public notice in the media on 12 October 2023 for the recusal and removal of the court and the judge assigned by the Judicial Service to determine criminal cases and applications he had filed in the High Court after having lost his cases in the rulings on 31 August 2023 and the ruling on the Respondent’s application for abridgement of time on 12 October 2023 is clear confirmation of his deficiencies and inexperience as an investigator and prosecutor of criminal cases on
behalf of the Republic of Ghana. This time round Kissi Agyebeng has resorted to fishing for a court and a judge who would decide cases in his favour instead of in accordance with the law. Kissi Agyebeng is more competent, experienced and excels in the persecution of citizens presumed innocent under the Constitution in the court of public opinion than at an adversarial trial before a court of law.
The more pernicious and arbitrary conduct and intention of Kissi Agyebeng as the Special Prosecutor is to unduly delay the hearing of the criminal cases and applications he has before the Court so that he can postpone decisions by the court in those matters which may expose his professional incompetence and inexperience as an investigator and a prosecutor to the Ghanaian public again. This is a clear unlawful and unconstitutional conduct unbecoming of any professional and responsible public officer which I had hitherto not witnessed from any experienced and competent professional investigator and prosecutor appearing in court as officer of the court.
One thing is certain, Justice will eventually prevail. In the interim, I bet my last pesewa that should the Chief Justice decline the OSP’s petition, Kissi Agyebeng will formally repeat his petition as an objection before the court again for the simple purpose of postponing the decision or judgment days. This will enable him to frustrate the administration of justice by holding on to the property and bank accounts of the Respondents he administratively seized and froze again on 5 September 2023 for as long as he unlawfully can. Whatever the delays and fishing for a court and a judge the petition of the Special Prosecutor occasions, justice will eventually prevail even if those cases were put before any other court and judge of the superior courts and the heavens fall.
Martin A. B. K. Amidu
12 October 2023
