STRATEGIC AMBIGUITY AS CHIEF JUSTICE SAYS NO PRIMA FACIE CASE IN MARTIN AMIDU PETITION
CHIEF JUSTICE’S DETERMINATION OF NO PRIMA FACIE CASE IN MARTIN AMIDU’S PETITION AND THE CONCEPT OF STRATEGIC AMBIGUITY.
BY MARTIN A. B. K. AMIDU
I have today received a one-page letter from the Presidency with reference number OSP 307/24/659 dated 2 July 2024 notifying me that: “.... the Honourable Chief Justice, Mrs. Justice Gertrude Sackey Torkornoo, has submitted her review of the existence or absence of a prima facie case with respect to your petition.” I was then informed that: “In accordance with section 15 (3) of the Office of the Special Prosecutor Act, 2017, the Chief Justice determined that the factual and legal foundation of the petition fall short of the standard required to establish a prima facie case for the removal of the Special Prosecutor.” I had on 30 April 2024 submitted a petition to the President for the removal of Kissi Agyebeng, the Special Prosecutor from office pursuant to the reliefs I sought in the petition.
I was not given a copy of the “review of the existence or absence of a prima facie case” submitted by the Chief Justice leading to her determination with respect to my petition to aid the accountability and transparency of the outcome. The outcome of the petition was not mine to make, and I ought not normally to have any regrets whatsoever about any outcome made in accordance with the taught traditions of the exercise of judicial discretion, in which a determination is made by the Chief Justice that my petition disclosed no prima facie case for the Special Prosecutor to answer.
The period and the procedure taken by the Chief Justice to determine that there is no prima facie case in this matter has, unfortunately, been pertinently abnormal, medievally imperial in method, and in contravention of the exercise of judicial power under Article 125 of the 1992 Constitution. The content and nature of the alleged letter from the Chief Justice to only Kissi Agyebeng, the Special Prosecutor without any reference number dated 26 May 2024 which found its way into the media the next morning at 6:00 am through Joy FM leading to the deliberate solicitation of comments whether the Chief Justice should determine a prima facie case was also blatantly abnormal in method and character.
A petition for the removal of the Special Prosecutor from office is governed exclusively by Section 15 of Office of the Special Prosecutor Act, 2017 (Act 959). The process of impeachment or removal from office begins with the submission to the President of a petition by a person seeking to remove the Special Prosecutor from office and terminates with a finding by the Chief Justice that there is no prima facie case made out by the petition or where she determines that there is a prima facie case, when the President acts in accordance with the recommendations of the Committee set up by the Chief Justice to investigate the matter.
Where the President receives such a petition , “the President shall within seven days refer the petition to the Chief Justice who shall within thirty days, determine whether there is a prima facie case.” (See Section 15(3) thereof). “Where the Chief Justice determines that there is a prima facie case, the Chief Justice shall within fourteen days set up a Committee consisting of (a) a chairperson, who is a Justice of the Supreme Court, (b) a lawyer of at least fifteen years standing at the Bar, and (c) one other person with expertise in investigations” – See Section 15(4) thereof. The Committee is enjoined within ninety days to investigate the matter and make its recommendations to the President through the Chief Justice” – See Section 15(5) thereof.
When the mandatory “within thirty days” for the Chief Justice to determine “whether there is a prima facie case” expired on 6 June 2024, I wrote to the President on 11 June 2024 pursuant to the Office of the President’s letter OSP 307/24/439 dated 6 May 2024 in which I was assured that: “The outcome of this determination will be communicated to you.” I received no response. When the “within fourteen days” for the setting up of a committee also elapsed, I wrote a reminder to the President on 24 June 2024. In both my letters of 11 June 2024 and 24 June 2024 I stated what the response to my inquiry will empower me to do: “This will enable me the freedom to plan my future itinerary accordingly.”
In the interim, between 11 June 2024 and 24 June 2024, I published an article on 20 June 2024 on “.... the Zombification of the public in the case of an impeachment petition” in which I stated, inter alia, that: “.... Whosoever the petitioner is has the right to be informed soonest that no prima facie case has been made by the petition....” Unfortunately, the period and procedure adopted by the Chief Justice to determine that there is no prima facie case in this matter consequently smacks of the exercise of the relics of medieval imperial power, and not judicial power under Article 125 of the 1992 Constitution.
The outcome determined by the Chief Justice and conveyed to me by the President on 2 July 2024 had abnormally already been announced by The Informer Newspaper on its Monday June 24 – Tuesday June 25, 2024, edition when it stated in respect of an alleged smear campaign against the Office of the Special Prosecutor, inter alia, that: “The coming allegation is as a result of the failure of a so-called petition to the President to remove him [Agyebeng] from office.”
I have avoided writing or speaking out to own the petition I submitted to the President on 30 April 2024 despite the temptations put in my path and my pernicious trial in the court of public opinion by the Kissi Agyebeng’s Joy FM and other media collaborators for good reasons and based on judicial precedent. As an experienced former public office holder, I take the view, and by analogical reasoning from the decided cases, that any Special Prosecutor against whom a petition has been submitted to the President is entitled to the due process of law when the Chief Justice determines a prima facie case. The impeachment process by law begins the moment the President accepts the petition for removal from office and terminates only upon the occurrence of settled conditions under the law. A petitioner not intent on mischief but seeking justice would know that publishing the content of the petition before a possible determination of a prima facie case, and the hearing of the petition by the appointed removal committee while the Special Prosecutor’s response is heard in private would be prejudicial to a fair hearing of the petition and infringe the due process of law. I had an option to reveal the fact that I had presented a petition to the President but there was no compulsion for me to do so; and I did not do so as I took the view as the founding Special Prosecutor that the removal process of any Special Prosecutor is a serious process that affects the OSP and ought not to be treated lightly.
For instance, by analogical reasoning, from the moment the President accepts the petition under Section 15 of Act 959, the process of impeachment has commenced except where the Chief Justice decides that there is no prima facie case under sub-section (3) of Section 15 of Act 959 and secondly, after the committee set up to investigate the complaint has submitted its report. The Special Prosecutor cannot terminate the impeachment process from the moment the President accepts the petition under Section 15 of Act 959 by resigning from the Office as that would create the presumption of culpability.
The foregoing explains why I had to exploit the lacuna and defects disclosed in the alleged memorandum from the Chief Justice written to only Kissi Agyebeng as the Special Prosecutor which in all probability could only have been leaked by Kissi Agyebeng as the only addressee and published in the media on 17 May 2024 at 6:00 am, by Kissi Agyebeng’s rented media house, Joy FM intended to conduct my trial in the court of public opinion and cowardly not providing any accompanying documentary evidence showing my signature upon which it based my trial in its court of public opinion.
In the Supreme Court decision of Dery v 1. Tiger Eye P. I 2. The Chief Justice 3. The Attorney General, Writ No. J1/29/2015, Supreme Court, 4 February 2016 (unreported) in which the 2nd Defendant was Kissi Agyebeng’s law partner at Cromwell Gray LLP and in which Kissi Agyebeng was his leading lawyer in the case, the court decided that: “... a petitioner under article 146 may not disclose the contents of his or her petition to the media; nor, indeed, any person other than the President...” Kissi Agyebeng’s client in the case, Anas Aremeyaw Anas, his partner at Cromwell Gray LLP admitted to publishing the content of the petition they submitted to the President on corruption in the judiciary that led to the proceedings to remove the plaintiff from office as a High Court judge. The Supreme Court also decided, inter alia, that: “.... The public is not completely denied the right to know, but certainly not before a prima facie case has been made by the Chief Justice or the committee has completed its work and submitted its report, whichever of these terminates the proceedings.....” Based on the Dery case the President as the recipient of the petition did not publish his letter forwarding the petition to the Chief Justice within the seven days the law required, and the Chief Justice’s memorandum to Kissi Agyebeng to respond to the petition was, likely, not intended by the Chief Justice to be made public let alone result in my pernicious trial in the court of public opinion by Joy FM, which is known to have access, to documents from the OSP, publishing even an unauthenticated memorandum from the Chief Justice in the media.
A Special Prosecutor against whom a petition has been submitted to the President is entitled to the due process of law just as the petitioner and possible witnesses are entitled to the protection of the law from recrimination from the media or other entities and persons in order not to discourage suspected removal conduct under Section 15 of Act 959 from not being pursued by a citizen who exercises his legal right to do so. The protection of petitioners and witnesses from possible recrimination by the media and an unscrupulous public from the infringement of the rights and freedom of the citizen to petition for the impeachment of impeachable public officers is implicit in Section 15 of Act 959, and Article 146 of the 1992 Constitution which applies to superior court judges. One can reason analogically from David Corker and David Young’s’ “In Abuse of process and fairness in court proceedings” by substituting petitioner in place of the defendant when they stated that ‘modern media is able to create and orchestrate, an unprecedented level of hostility towards a particular defendant [petitioner] which has attracted substantial, predominantly hostile media publicity.’...”.
David Corker and David Young’s’ work was cited by the Supreme Court in the Dery case. Without publishing the content of the alleged petition to authenticate my signature as the petitioner, I was subjected to all sorts of disparaging abuses as though the rights conferred upon a petitioner under Section 15 of Act 959 was enacted with the intention to permit an unscrupulous media to mobilize public opinion to railroad petitioners into withdrawing their petitions to the President. The freedom and right to petition the President under Section 15 of Act 959 is exclusively my personal right and freedom guaranteed under the 1992 Constitution.
The only avenue opened to me as an experienced retired public officer and professional student and practitioner of conflict, security and intelligence studies, in the pernicious environment created first by the Joy FM publication, was to resort to the tools of strategic ambiguity to deflect my unlawful trial in the court of public opinion by Joy FM and their cohort of other media houses and political elite seeking their turn to eat should there be a change of government. The Chief Justice’s alleged memorandum addressed only to Kissi Agyebeng which found its way the next morning to Joy FM provided the tools for me to create a situation of strategic ambiguity in the charged environment of my public lynching by the media in the court of public opinion for the exercise of my inalienable legal rights.
The President of Ghana, Nana Addo Dankwa Akufo-Addo, and I have not spoken either directly or indirectly through any intermediary since I exited from office on 16 November 2020. I had served as the Special Prosecutor, gratis despite the agreement arrived at between the President and I on 9 January 2018 that because of my former public office position as an Attorney-General I would be remunerated in a manner that was personal to myself and my former public office.
As a matter of principle I declined to take any allowances for serving on the Board of the OSP because in my view I used the same public time for those meetings and would still have been performing other functions as Special Prosecutor if I was not at the Board meetings. Indeed the Association of Internal Auditors can testify to the fact that when they sent a cheque of over Three Thousand Ghana Cedis to me for attending and addressing their conference at the Accra Conference Centre I refused to cash the cheque until it became stale because I was performing my statutory functions by accepting and addressing their conference. I internalized the foregoing from my dear friend and former Chairman of the PNDC Jerry John Rawlings whose PNDC never paid any allowances to PNDC Secretaries for attending Board meetings which in my view was most reasonable and the right public policy for a country under economic and financial stress.
The insinuation that I functioned as a surrogate of the President in submitting my petition for the removal of the Special Prosecutor was not only insulting to the President and me but also defamatory of my integrity. I am a constitutional activist and not an anarchist intent on subverting the 1992 Constitution, democracy, and the rule of law as others who merely think of assuming the powers of government just to create an environment for their turn to eat, wished that I joined them in declining to recognize the President who won the 2020 Presidential election that was upheld by the Supreme Court, and to whom the law mandated me to submit my petition.
For OSP’s friends in the media houses and those political parties who think the Special Prosecutor is useable material for them to seek unbridled and vain revenge contrary to the due process of law on their political adversaries should they come into power and therefore classify my petition as playing into the hands of the President, I can only echo the words of the Special Prosecutor himself during his unlawful investigation of Professor Kwabena Frimpong-Boateng - What time is the right time for me to petition the President for the Special Prosecutor to attend to answer questions on his suspected violations of Section 15 of Act 959? In the words of Kissi Agyebeng: “What time is the best time? I would say that this is a luck-less coincidence.”
Joy FM, and the cohort of media houses along with their political elite looking forward to “It is our turn to eat”, who tried me in the court of public opinion were so consumed by avarice that they did not even think, firstly, about the fact that in bringing my petition against the Special Prosecutor, an appointee of the President, the odds could be stacked against my petition. Secondly, my media mob lynchers, refused to think holistically to see the paradox that the classmate and friend of Kissi Agyebeng who nominated him for the position was to be responsible under the doctrine of necessity for appointing the prosecutors at the hearing of my petition by the Committee. I was unfussed about this because at the end of the day the Chief Justice had to impartially determine in a judicial manner the existence of a prima facie case, within the time limits provided under the law, which if favourable was to lead to a decision and recommendations to the President to be made by the impeachment committee which is expected to be independent. The foregoing, notwithstanding, I am the one being accused of being the President’s surrogate or playing into the President’s hands instead of the opposite fact that Kissi Agyebeng may be under the protection of the Presidency that appointed him.
My parents regimented me to always act upon my conscience and principles which I have exhibited throughout my public service and in my retirement. I would not have brought the action against the Attorney-General, Waterville, and Woyome in the Supreme Court for the court to order the payment of Forty-Seven Million Euros (€47 million) by Waterville and Fifty-one point two million Euros (€51.2 million) by Woyome to the public purse if I had been constrained by the fact that I was the immediate past Attorney-General. In the Amidu v Isofoton SA case, the Supreme Court ordered the refund by Isofoton SA of some $325,472 unconstitutionally paid by the Government to it from the $1.3 million alleged judgment debt the Government was honouring. Joy FM and the media cried Alleluia! Alleluia! in praises while today the same media are crying crucify him! crucify him! for exercising my constitutional and legal right against their favoured Special Prosecutor under the law.
Those who have known me from infancy through my public service know that nobody forces his sense of morality or lack of it upon me when I perceive the existence of corruption or breaches of the criminal law or the Constitution. It makes no difference to me whether the suspected culprit is my offspring or of the same blood or a cultural relation. This explains and demonstrates why I charged Hajia Hawa Ninchima the former NPP Municipal Chief Executive for Bawku whom I culturally call a sister, and Mahama Ayariga, the NDC MP for Bawku Central, whom I culturally call a son when I was the Special Prosecutor. The law took its course and I have no regrets for doing what I perceived in conscience was my duty as the Special Prosecutor if I was not to discriminate against citizens of Ghana. I never tried any suspect in the court of public opinion as has become the norm at the OSP now.
Kissi Agyebeng knows my strictness of character against suspected crime because a few months ago, on Saturday, 6 January 2024, I received a respectable visitor who claimed to be an emissary on behalf of Kissi Agyebeng and his mentor, a prominent Ghanaian businessman. The emissary reminded me that Kissi Agyebeng had narrated an incident while he was a student at Accra Academy when I came to the school one midnight pursuing my relative who had come to my Lartebiokorshie official residence as Deputy Attorney-General to commit crime. Kissi Agyebeng should, therefore, have been in no doubt that after writing my article on the OSP’s unconstitutional investigation of the Labainca case; my letter dated 31 August 2022 to the Public Service Commission which was copied to him; my letter dated 2 September 2022 to the accountability institutions on the powers of appointment apportioned to the President under Article 195 of the 1992 Constitution which was also copied to him; and then I started the first of several Right to Information applications to him beginning on 10 November 2023 that if he did not change his ways he was in for a court action or a removal petition. Nobody needed to goad me into action against him except his intransigence.
I should like to tell those who thought I should have reasoned with their brains, cultural and political socialization in life that I never sell my conscience for a pittance in anticipation of any benefits in life under any circumstances. My trial in the court of public opinion in anticipation of forcing me to withdraw the petition unfortunately fortified my determination to see the petition through the due process of law and a fair hearing. The outcome was not mine to make, and I ought not normally to have any regrets whatsoever about the outcome made in accordance with the taught traditions of the exercise of judicial discretion, in which a determination is made by the Chief Justice that my petition disclosed no prima facie case for the Special Prosecutor to answer. Unfortunately, the period and the procedure taken by the Chief Justice to determine that there is no prima facie case in this matter has been pertinently abnormal, medievally imperial in method, and in contravention of the exercise of judicial power under Article 125 of the 1992 Constitution.
I never pick and choose whom I may pursue the law against. As a former Chairman of sub-committees under the National Investigation Committee (NIC) under the PNDC beginning 1982, a Deputy Attorney-General for upwards of twelves years, a Minister for the Interior with additional responsibility for Security and Intelligence, an Attorney-General, and the founding Special Prosecutor, I have internalized the investigatory and prosecutorial rules, principles, and ethics of dealing with cases that need to be investigated and prosecuted, and not personalities. Wrong is wrong no matter who commits it, just as crime is crime no matter who commits it.
Like Caesar’s wife, any Special Prosecutor must be above suspicion if there is indeed a crusade, and not an entrepreneurial smokescreen being used as a deception for fighting corruption in Ghana. The 1992 Constitution does not enshrine the smokescreen of entrepreneurship as an instrument for fighting corruption and every patriot has a responsibility to expose such unconstitutional conduct and suspected crimes. I called upon patriotic Ghanaians to consider bringing a petition for impeaching Kissi Agyebeng in my article on “Impeach Kissi Agyebeng for crossing the redline....”, dated 3 December 2023, and published by Modern Ghana on 5 December 2023.
The culture of silence and the fear of recrimination from the OSP’s media houses dissuaded those who were willing to do so from doing so. I exercised my right as a citizen of Ghana to bring the petition myself and I have no regrets for doing so despite the rigged outcome smacking of the exercise of the relics of imperial medieval powers. I am, however, confident that history shall absolve me when the content of my petition and the review submitted by the Chief Justice become available to the public for its evaluation. When the vendetta and trials of mere suspects in the court of public opinion starts again in the not too distant future by the OSP under another Government of public officials of the current Government, the utility of my petition will be remembered. I pray that another Government does not become a victim of the same trials by the OSP of mere suspects in the court of public opinion instead of in the courts of law as mandated under the 1992 Constitution. Ghana First, now and always!
Martin A. B. K. Amidu
3 July 2024