“Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should, rather than pick cases that need to be prosecuted.” R. H. Jackson
Introduction
The Special Prosecutor of Ghana, Mr. Kissi Agyebeng does not appear to have learnt the ropes of what it takes to be an experienced investigator and a prosecutor within the institution of law enforcement almost two years after his appointment by the President of Ghana to that august office.
Kissi Agyebeng has refused or failed to learn quickly that the Office of the Special Prosecutor (OSP) was not established as a corporate fisheries entity to go into the oceans, rivers, and other water bodies of crime, casting its net widely to scoop in every fish the net can catch, and then decide which type of fish meets its fancy to be retained as game or food for sacrifice to the gods of persecution and which to release back into the oceans.
The invitation, arrest and bailing of Professor Kwabena Frimpong-Boateng provide the clearest example of Kissi Agyebeng’s inexperience and incompetence as an investigator and a prosecutor for corruption offences.
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 of the commission of a corruption offence without first establishing reasonable grounds for such suspicion as though he was on a fishing expedition.
The ethics governing professional investigators as well as prosecutors do not permit such specialized public officers to intimidate and frighten citizens with threats of arrest and prosecution for the generic offence of corruption and corruption-related offences created under the Office of the Special Prosecutor Act, 2017 (Act 959) without indicating to a suspect the specified crime(s) committed or about to be committed within the generic corruption offences.
There is no crime under Act 959 known as “alleged or suspected corruption and corruption-related offences”. The mandate of the OSP is to “investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences” (Emphasis supplied).
The specific cases of offences the OSP is enjoined to investigate and prosecute are defined under Section 79 of Act 959. Consequently, the citizen is entitled to know from the invitation letter or at the point of arrest the specific offence of alleged or specified suspected corruption and corruption-related offences for which he is reasonably suspected of having violated.
The Ghana Police Service which hitherto was responsible for investigating all criminal offences under the Criminal Offences Act, 1960 (Act 29), is not permitted to invite or arrest a citizen for the commission of crime generally without specifying the particular crime or offence for which the citizen is reasonably suspected of commission or about to commit.
The fundamental rights and freedoms of the citizen to fair and impartial investigation and prosecution upon reasonable suspicion of the commission of crime are guaranteed under the Constitution and the Special Prosecutor cannot decide at his whim when and how the guaranteed rights may be enjoyed by the citizen on account of the mandate of his office to investigate and prosecute specified cases of alleged or suspected corruption.
The Special Prosecutor can only earn the trust of the citizen by discharging the functions of his office in accordance with respect for the fundamental rights and freedoms enshrined in the 1992 Constitution, the Office of the Special Prosecutor Act, 2017 (Act 959), the Criminal Offences Act, 1960, the Criminal and Other Offences Procedure Act, 1960 (Act 30), and other laws establishing the functions and powers of other more established law enforcement agencies.
In dealing with corruption and corruption-related offences, an experienced Special Prosecutor would have recognized that the 1992 Constitution specifically established the Commission for Human Rights and Administrative Justice (CHRAJ) as the only independent constitutional body entrusted under Article 218 (a) and (e) with functions to investigate complaints of violations of fundamental human rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties. The CHRAJ is also charged with investigating all instances of alleged or suspected corruption and the misappropriation of public moneys by public officials.
Similarly, the Ghana Police Service is also specifically established by the Constitution to “be equipped and maintained to perform its traditional role of maintaining law and order” which includes the investigation of crime. The impression created by Kissi Agyebeng, the Special Prosecutor, that he has the sole responsibility to investigate and prosecute the specified cases of corruption under Act 959 is, therefore, a disingenuous assumption of power which the Constitution has specifically apportioned to the CHRAJ and to the Ghana Police Service.
Kissi Agyebeng’s hurry to gain credibility and the trust of the public without first learning the ropes of what it takes to be an experienced investigator and a prosecutor may have led him into trampling upon the rights of citizens and behaving as though the OSP is a branch of his associated firm of Tiger Eye PI exhibiting gangsterism and instilling fear into the citizenry.
Citizens who previously appeared before the OSP were cowed into meek submission and terror by the Gestapo and the lawless style of the OSP under Kissi Agyebeng which he entrenched by unconstitutionally staffing the office with poached former clients from the police service, a retired prison officer and businessman, friends and his law firm colleagues dancing to his tyrannic tune without asking any questions.
Professor Kwabena Frimpong-Boateng has proved himself an exceptional, courageous, and patriotic citizen by challenging and making public on 7 June 2023 the arbitrary and oppressive conduct that citizens who appear before Kissi Agyebeng’s OSP face. This discourse will be examining the emerging impunity taking over the OSP since the assumption of office by Kissi Agyebeng without accepting any signed handing over notes from the acting Special Prosecutor indicating his assumption of office.
The context of the arrest, public reaction, and the rhetorical defence
Gestapo-type persecution or luck-less coincidence
The arrest and bailing of Professor Frimpong-Boateng on 16 May 2023 upon the instructions of Kissi Agyebeng, the Special Prosecutor, naturally raised questions in the minds of the critical segments of reasonable people as to the timing of Kissi Agyebeng’s actions coming not long after the GTV interview by Frimpong-Boateng on galamsey on 10 March 2023, the referral of the galamsey report by the President to the Police Service on 20 March 2023, and subsequent leakage to the public of the whole Inter-Ministerial Committee on Illegal Mining
(IMCIM) Report signed on behalf of the Committee by the former Minister for the Ministry of the Environment, Science, Technology and Innovation (MESTI)) and former Chairman of the Inter-Ministerial Committee on Illegal Mining (IMCIM).
For instance, on June 8, 2023, Ghana Web reported an interview granted by Mr Kwame Pianim, (an elder statesman, respected Ghanaian economist and a founding member of the New Patriotic Party, the governing political party), in which he stated in relation to the disclosures about how Frimpong-Boateng was invited, arrested, and bailed that:
“I don’t know the (sic) of information the special prosecutor had, such that whatever he [reference to Prof Frimpong-Boateng] did he may run away outside and because of that he needed to prevent, he could have taken his passport? And immediately after it was done, we should have known the charges.
“Are we being made to infer that he is part of the criminal gang that is promoting galamsey? Or what has he done? Or he is related to the defamation or the leaking of the report that he made to the president and the request of the president. “If he did that, I’m not a lawyer but I have been in public life. In America, we have what we call Executive Privileges. A minister talking to his president, you cannot use that as a charge against him for defamation. Mr Gabby Otchere-Darko is an important member of the kitchen cabinet of the president, Capt. Koda is a serious member of our security services and the military.”
Kissi Agyebeng’s riposte to citizens’ reasonable criticism of his conduct was a defence mounted on JoyNews’ Newsfile on 10 June 2023 contending that the IMCIM had long been under investigation by the OSP following accusations and counter-accusations of suspected corruption against the Committee. True, the moderator of JoyNews’ Newfile did a spirited advocacy for the Special Prosecutor when he introduced the programme by referring to a press release on the website of the OSP dated 10 October 2022 notifying the public that the Office had commenced an investigation into suspected corruption and corruption-related offences in respect of illegal mining. The press release stated, inter alia, that: “The OSP will take necessary action against all persons deemed culpable of corruption and corruption-related offences in the mining sector.” The moderator also referred to a press release dated 2nd May 2023 in the nature of an update stating inter alia that:
“The OSP welcomes the calls for action and investigations and it assures the public and civil society that its investigation is ongoing and far-reaching and it also covers the matters raised in the report published by the head of the dissolved IMCIM. The OSP will take necessary action against all persons deemed culpable of corruption and corruption-related offences in the mining sector.”
What the listening public was not told or what was suppressed from the listening public was the fact that between 10 October 2022 when the OSP issued its first press release and its second updated press release on 2nd May 2023 Kwabena Frimpong-Boateng had on 10 March 2023 spoken in an interview with Gifty Adjei on GTV’s “Legends of Our Time”, in which he said when he was asked for his answer on the whereabouts of the 500 excavators that were reportedly missing, inter alia that:
“There was an orchestrated scheme, even within the party and government, to get me out. Why is it that when I left, everyone is in the forest? I don’t want to go into details now because I have a lot to say about that. Let me tell you that I did not take one excavator for anything; they know the truth. Now things are coming up, we know those who are behind it, the party people who are there, and the people in government, including Jubilee House, who are doing galamsey and so on, even now. So let Frimpong Boateng stay in his corner and enjoy his retirement.”
Unbeknown to the Special Prosecutor, Kwabena Frimpong-Boateng, the former Minister for MESTI and the former Chairman of the IMCIM, had on 19 March 2021 submitted a 37-page report to the Office of the President accounting for the stewardship of the IMCIM and containing allegations against government officials and political associates who had engaged in galamsey or interfered with the work of the Committee.
The Presidency kept the report as a secret document until the former Minister made references to the report in an interview with GTV on or around 10 March 2023 and excerpts from the report subsequently got leaked in the media. The President’s reaction to the interview and subsequent leakage of the IMCIM report was to refer the report to the Ghana Police Service for investigations on or about 20 March 2023. Frimpong-Boateng was invited by the Ghana Police Service to assist in the investigations and he made available a copy of the report dated 19 March 2021 to the Criminal Investigation Department investigators who invited him. He was not arrested and there was no question of being granted bail.
Public reaction to government suppression of the IMCIM Report
Kwabena Frimpong-Boateng’s interview with GTV, the leakage and the subsequent publication of the report in the media evoked in its train scathing criticisms and condemnation of the government for suppressing such a report for two whole years without taking any action to investigate and deal with the serious allegations contained in it. In an attempt to defuse the vitriolic criticism of the conduct of the government in protecting the government officials and associates accused of engaging in and promoting illegal mining, the Government on 25 April 2023 issued a press statement counterclaiming that the report on illegal mining by Prof. Frimpong-Boateng contained a catalogue of grievances amounting to hearsay statements.
By some lucky coincidence, a day earlier on 24 April 2023, the DailyGuideNetwork reported the developing acrimony between Prof. Frimpong-Boateng and Mr Gabby Asare Otchere-Darko in which Frimpong-Boateng was quoted to have said that: “What saddens me most was when Mr Gabby Asare Otchere-Darko called to defend a company that was actively destroying the environment, especially the forests and River Offin in the Apaprama and Kobro Forests”. It is a matter of notorious public knowledge that Mr. Gabby Asare Otchere-Darko is one of the mentors and promoters of William Kissi Agyebeng for the nomination and appointment as the Special Prosecutor.
On 25 April 2023, Mr Rockson-Nelson Dafeamekpor, the Member of Parliament for South Dayi, was reported to have petitioned the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate the damning 37-page report on galamsey in Ghana submitted to the Presidency by the former Chairman of IMCIM and former Minister for MESTI, Professor Kwabena Frimpong-Boateng. CHRAJ is the only independent constitutional body entrusted under Article 218 (a) and (e) with functions to investigate complaints of violations of fundamental human rights and freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties. It is also charged with investigating all instances of alleged or suspected corruption and the misappropriation of public moneys by public officials.
On Tuesday, 26 April 2023, the Commissioner of the Commission on Human Rights and Administrative Justice, (CHRAJ), Mr Joseph Whittal, acknowledged receipt of Mr Dafeamekpor’s petition in an interview on Ghana Tonight on TV3 and stated, inter alia, that: “We can undertake a panel hearing. We can do that and that’s in the interest of the complainant.” Two days later, on 28 April 2023, the acrimony between Gabby Asare Otchere-Darko and Prof. Frimpong-Boateng coincidentally or by design to preempt the CHRAJ investigations, gave rise to the issuance of a writ of summons and an accompanying Statement of Claim by the former against the latter in Suit No. GJ/0769/2023 date 28 April 2023 for defamation, amongst other reliefs.
On the same day, 28 April 2023 the Ghana Integrity Initiative (GII), whose Chief Executive Officer (CEO), Linda Ofori-Kwarfo is the handpicked Chairperson of the Board of the OSP, who knew of Mr Dafeamekpor’s petition to the CHRAJ on 25 April 2023, issued a needless statement calling on institutions such as the OSP and the CHRAJ to rebuild public confidence by probing the galamsey report authored by Professor Kwabena Frimpong-Boateng. This statement concluded needlessly by stating that: “GII also intends to formally petition CHRAJ and the OSP to investigate aspects of the report that are corruption-related.”
The intervention by Linda Ofori-Kwarfo as the Chairperson of the Board of the OSP and CEO of the GII in an alleged ongoing investigation by the OSP shows that the 10 October 2022 press release by the Special Prosecutor had not contemplated the existence of the 19 March 2021 report signed by Frimpong-Boateng. Consequently, Mr Dafeamekpor’s petition to CHRAJ had not been within the contemplation of the 10 October 2022 press release of the OSP giving Mr Dafemekpor the constitutional and legal right to petition the CHRAJ and for it to assume jurisdiction as it did, as the only body mandated under Article 218 of the Constitution to investigate corruption, abuse of power and unfair treatment of any person by a public officer in the exercise of his official duties, and, all instances of alleged or suspected corruption and the misappropriation of public moneys by officials.
As though Linda Ofori-Kwarfo’s GII needless statement was a call to action from the OSP, the Special Prosecutor woke up from his slumber to issue his belated 2 May 2023 press release in the nature of an update on his 10 October 2022 press release, four days after his political mentor, classmate, and friend, Gabby Otchere-Darko had sued Prof. Kwabena Frimpong-Baoteng for defamation on 28 April 2023 in respect of aspects of the IMCIM report.
The notorious relationship of Kissi Agyebeng and Gabby Otchere-Darko
The relationship between Gabby Asare Otchere-Darko, Godfred Dame, and Kissi Agyebeng had dogged the nomination, approval, and appointment of Kissi Agyebeng as the Special Prosecutor. Kissi Agyebeng had also been the personal lawyer for Gabby Asare Otchere-Darko in suit No. GJ/1394/2020 filed on 2 September 2020 in the High Court (General Jurisdiction) Accra in the case of Gabby Otchere-Darko v Sabah Zita Benson for defamation in respect of an “Audio Visual Post on Facebook” dated 29 August 2020 titled – “Family and Friends Agyapa Royalties”.
At the parliamentary hearing on Thursday, 22 July 2021 to approve or disapprove the nomination of Kissi Agyebeng as the Special Prosecutor to take over from Cynthia Jane Naa Koshie Lampety who had been acting as the Special Prosecutor, Alhaji Muntaka Mubarak asked the nominee whether he was a friend of Mr. Gabby Otchere-Darko. Kissi Agyebeng
speaking on oath sidestepped this question and answered that: “Gabby is my professional colleague. My firm has represented him in several defamatory cases.” When Kissi Agyebeng was asked about his relationship with the Agyapa Royalties Transaction he replied as quoted by the media that: “I was not involved in Agyapa transaction in any form or manner… “I certainly will investigate the truth of the matter. I was not involved in the deal.”
The press reportage, particularly with the source as 3news.com, stated that Kissi Agyebeng’s responses were in relation to claims I had made in my article – “Do not defame Martin Amidu in the propaganda to nominate a new Special Prosecutor” dated Thursday 29 April 2021 – stating, inter alia that:
‘Asaase Radio appears to have been so bent on pressurizing the President to announce their preferred choice as the Special Prosecutor (the Agyapa Special Prosecutor) that it forgot that the nomination letter by the Attorney-General was addressed only to the President. How then did the nomination letter of a new Special Prosecutor come into the public domain to make the rounds in the press? Asaase Radio should also have told the Ghanaian and international public that its surrogate and nominee Special Prosecutor in the published letter is a personal friend and classmate of the Attorney General, and the owner of Asaase Radio all of whom attended the University of Ghana’s Faculty of Law, and Ghana Law School. The independence of the Special Prosecutor from the direction or control of any person or authority in the performance of the functions of his office is the operative statutory words for the nomination of an impartial Special Prosecutor! Not a word with an “ism”’.
By the use of rhetoric before parliament, Kissi Agyebeng got away with the contention that by virtue of the fact that he is “a personal friend and classmate of the Attorney General, and the owner of Asaase Radio all of whom attended the University of Ghana’s Faculty of Law, and Ghana Law School”, the owner of Asaase Radio and the Attorney-General who promoted his appointment were and are his professional colleagues. Secondly, Kissi Agyebeng got away with the fact that he was the personal lawyer for Gabby Asare Otchere-Darko in suit No. GJ/1394/2020 was filed on 2 September 2020 in the High Court (General Jurisdiction) Accra in the case of Gabby Otchere-Darko v Sabah Zita Benson.
The Writ and Statement of Claim were signed personally by Kissi Agyebeng, Esq, with his personal lawyer’s current licence No. PP00163/20. Cromwell Gray LLP with founding partners as Anas Anas and William Kissi Agyebeng is a partnership and not an incorporated limited liability company for purposes of professional liability. Consequently, Kissi Agyebeng’s answer to parliament at his vetting that: “My firm has represented him in several defamatory cases” was a disingenuous and dishonourable way of sidestepping the question, to say the least.
Thirdly, the sole subject matter of the suit for defamation that Kissi Agyebeng brought on behalf of his friend, classmate and political mentor, Gabby Otchere-Darko against Sabah Zita Benson, as Kissi Agyebeng endorsed on the Writ of summons, was an “Audio Visual Post on Facebook” dated 29 August 2020 titled – “Family and Friends Agyapa Royalties”. The attached endorsed relief setting forth the defamatory words was made up of five paragraphs of text narrative contained in Sabah Zita Benson’s audio-visual post on Facebook.
And at the time Kissi Agyebeng was answering the questions on oath at his parliamentary vetting the Agyapa Royalties Transaction Report by the OSP that had been submitted to the President and published on 3rd November 2020 showed “the role the President’s cousin who established Africa Legal Associates, and Asaase Radio played with White & Case LLP, of London, one of the foreign law firms in the suspected corruption transaction.” The President’s cousin who established Africa Legal Associates referred to in the Agyapa Report was none other than Gabby Otchere-Darko.
Kissi Agyebeng was still the lawyer for the plaintiff in the Benson case when he appeared for his vetting and yet looked parliament in the face to say that: “I was not involved in Agyapa transaction in any form or manner… I certainly will investigate the truth of the matter. I was not involved in the deal.” Surely Kissi Agyebeng was not a party to the anti-corruption risk assessment conducted by the office he was being vetted to assume, but how could he tell parliament that he had the fairness and impartiality to investigate any matter contained in the Agyapa Transaction Report in which he had openly taken sides by the issuance of a writ and statement of claim for his friend, classmate, and political mentor?
Kissi Agyebeng knew he did not have the impartiality and independence to investigate the Agyapa Transactions when appointed the Special Prosecutor, but deliberately lied to parliament to secure its approval. Why? Because the Agyapa Royalties Transaction was the subject matter of the defamation suit he filed against Benson leading to his appointment as the Special Prosecutor, since “one good turn deserves another”.
This is how come to Kissi Agyebeng has turned the Office of the Special Prosecutor into the Office of the Special Protector for his friends and family. Kissi Agyebeng deployed rhetoric to worm his way through the parliamentary approval process and hopes to continue as the Special Protector of his friends and mentors deploying rhetoric in the media. The warnings contained in my article dated 29 April 2021 as to the suitability of Kissi Agyebeng, a surrogate for Gabby Otchere-Darko and the Attorney-General, for appointment as the Special Prosecutor were ignored. I had warned that:
Asaase Radio and the nominator of the proposed new Special Prosecutor know or ought to have known the extent of the involvement of their surrogate as a lawyer for suspects in pending suspected corruption cases in which the Government showed an undue interest in the Office of the Special Prosecutor which I await to see how independently and impartially those cases will be handled to the conclusion should the President submit the name of the nominee to Parliament, he is approved, and then appointed….The fight against corruption in Ghana has been and is still in State Capture. Mark my words!
But the worries I entertained as to the fitness of Kissi Agyebeng as a surrogate of his two classmates and friends to exercise the independence, fairness and impartiality demanded of the occupant of the Office of the Special Prosecutor came to be articulated not only by Mr Kwame Pianim but by other eminent members of the public such as Vitus Azeem, Professor Stephen Adei, former Attorney-General Nii Ayikoi Otoo, and many others. CHRAJ’s assumption of the galamsey investigation and OSP’s preemptive arrest and bail
What vested interest did the Special Prosecutor have in trying to undercut and prevent the CHRAJ from conducting a public panel hearing into Mr. Dafeamekpor’s petition when he, Kissi Agyebeng, knew that he was “radioactive” in as far as any case in his office affecting Gabby Asare Otchere-Darko is concerned? There could be no guarantee that even if he purported to recuse himself from participating in the investigation and prosecution of the case in his office, the public will have confidence that he was not covertly interfering with the investigation. After all, the Special Prosecutor is the Office of the Special Prosecutor and the Office of the Special Prosecutor is the Special Prosecutor.
It is within the context of the foregoing background knowledge that Kissi Agyebeng’s riposte in defence of his office on JoyNews’ Newsfile on 10 June 2023 that IMCIM had long been under investigation by the OSP following accusations and counter-accusations of suspected corruption sidestepped again, as he did in his parliamentary vetting for an appointment, the fundamental issues of investigatory and prosecutorial ethics with the use of rhetoric instead of facts for argument.
The answer to the questions Kissi Agyebeng was quoted as asking on JoyNews’ Newsfile on 10 June 2023: “What time is the right time for me to direct the head of this dissolved committee to attend to us to answer questions? What time is the best time? I would say that this is a luck-less coincidence,” is a simple one. The right and best time to have directed the head of the dissolved committee to attend the OSP to answer questions was before the report implicating Gabby Otchere-Darko, his mentor for nomination and appointment as the Special Prosecutor, was made public and Gabby Otchere-Darko sued Frimpong-Boateng for defamation on 28 April 2023 based on that report.
By rushing to assume jurisdiction over the IMCIM report on 2 May 2023 against which a petition had already been lodged with the CHRAJ which had already assumed jurisdiction and announced the holding of a panel hearing open to the public gives the impression of an attempt to subvert the primary constitutional authority vested in the CHRAJ to investigate corruption and thereby to protectively strengthen tangentially and tacitly the claims for defamation by Gabby Otchere-Darko and his cohorts against Frimpong-Boateng. An investigation by panel hearing which is open to the public is more transparent and accountable than the kangaroo investigation to protect people who facilitated the appointment of the Special Prosecutor to that position.
No volume of rhetoric aided by collaborating political and legal elites in the media can hide the facts of the Special Prosecutor’s indebtedness to those who put him in the position he finds himself, starting with the leak in Asaase Radio of the nomination which was a proposal to the president even before the president could make up his mind whether or not to accept the nomination. The timing of the invitation, the Gestapo style of the arrest and the grant of bail with sureties to Frimpong-Boateng was a clear abuse of power intended to intimidate him and to tacitly support the defamation actions commenced against him by Kissi Agyebeng’s political mentors in the civil court. It is a flagrant abuse of investigatory and prosecutorial powers under the 1992 Constitution and Act 959.
Chilling unconstitutional fishing expedition tyranny as criminal investigation
The fact that the OSP which is expected to operate based on reasonable suspicion as a basis for any invitation for alleged or suspected crime, interrogation, and possible detention of the citizen has been unconstitutionally turned into a fishing expedition in which Kissi Agyebeng abuses the investigatory power to fish for suspects to determine whether they can reasonably be suspected of the crime was confirmed in the JoyNews’ Newsfile propaganda discourse arranged for him to deploy rhetoric to defend his conduct. Kissi Agyebeng unwittingly described how he has turned a law enforcement agency into a fishing expedition enterprise as follows:
“When we start investigating a case we are looking at everybody. You personally, as a member of the public may have your favourite, you may have those you think are so good and so consecrated saints that they become almost untouchable.” “At the end of the day if I weigh the evidence against you and I come to the conclusion that there is nothing then I let you go but in the middle of the investigations, I treat everyone the
same…Mind you, at the Office of the Special Prosecutor we do not consecrate Saints. No one is a saint to us, no one is an angel as far as we are concerned.”
The fishing investigative modus operandi of Kissi Agyebeng in his law enforcement tyranny is inconsistent with and in contravention of the fundamental human rights and freedoms guaranteed to every citizen under the 1992 Constitution. Article 14 (1) (g) of the 1992 Constitution, for example, directs and enjoins that every person is entitled to his personal liberty and prohibits the deprivation of any person of his personal liberty except upon reasonable suspicion of having committed or being about to commit a criminal offence under the laws of Ghana. Consequently, a generic invitation to a person of interest as a reasonable suspect for investigation for corruption and corruption-related offence(s) is unconstitutional. The invitation must inform the suspected invitee of the crime he has reasonably been suspected of committing or about to commit. An invitation for investigation for the suspected or alleged commission of an unspecified corruption and corruption-related offence is clearly a fishing expedition and contrary to Article 14 (g) of the 1992 Constitution.
The Constitution further requires under Article 14 (2) that a person who is arrested, restricted, or detained shall be informed immediately in a language that he understands, of the reasons for his arrest, restriction, or detention and of his right to a lawyer of his choice. It follows from Article 14(2) that the arrest of Frimpong-Boateng in the circumstances narrated by him where he questioned why the Chief Investigator put his left hand on his right shoulder and said, “Professor, you are under arrest” and received the answer that the OSP is investigating corruption and corruption-related activities of the IMCIM of which he was the chairman, was a flagrant abuse of the Constitution.
Prof. Frimpong-Boateng’s narrative of what happened at the OSP and Kissi Agyebeng’s defence supports the contention that Frimpong-Boateng was targeted and invited in the fishing expedition of the OSP in a purported IMCIM investigation, in which he was unconstitutionally interrogated and then a holding charge created out of the interrogation with which he was cautioned and then bailed to show him where power lies. The former status and position of Kwabena Frimpong-Boateng provided an excellent opportunity for Kissi Agyebeng who has been unable to command the respect of citizens as an experienced investigator and a prosecutor to project a sense of bravado and send chillingly cheap intimidatory and false signals to Ghanaians that he is a no nonsense investigator and prosecutor.
Apart from the fact that the 1992 Constitution prohibits an investigator or a prosecutor to go on a fishing expedition looking for citizens to implicate in crime as though he was his law partner Anas Anas’ Tiger Eye PI, the Constitution consecrates every citizen as a saint, a favourite citizen, and untouchable, who is presumed innocent until he is proven guilty by a court of competent jurisdiction. This right subsists from the time of reasonable suspicion by any law enforcement agency of the commission by the citizen of crime or being about to commit a crime to his trial and conviction by a court of law. When tyrannical investigators and prosecutors in the mold of William Kissi Agyebeng are let alone, they deploy empty rhetorical performance that signify nothing to confuse the public. The emerging tyranny of William Kissi Agyebeng activates the constitutional and patriotic duty of citizens to respond to those abuses and stop them in their tracks before they destroy this country with a new McCarthyism. Professor Ransford Gyampo rose to this patriotic occasion and duty on 12 June 2023 when he wrote on his Facebook, inter alia, that:
“I have been pondering over the responses of the Special Prosecutor on Newsfile over the weekend. Though I initially thought the interview brought out some useful information, reflecting on the responses again in more sobriety, makes me a bit worried. Kissi Agyebeng says he doesn’t consecrate saints, and that he is the conscience and soul of Ghana. Not consecrating saints can be interpreted to mean every suspect is a criminal ab initio. But in his own law that he studied, there is a principle that all are innocent or “consecrated saints” until proven guilty. So, where from this new alien legal maxim being propounded and must we allow Kissi Agyebeng to impose it on us as a people?”
The Ghanaian new McCarthyism which has been evolving as Agyebengism that thrives on public hysteria and fear against corruption is encapsulated in Kissi Agyebeng’s spurious and sweeping explanation on JoyNews’ Newsfile quoted and reported in the media that:
“See, galamsey is very far reaching as I keep saying it and it has engulfed us as a nation, and so we are leaving no stones unturned. Our gloves are off and we are coming against everyone and every person who we think should be dragged in before us. Everyone and every person!”.
A drag net for “Everyone and every person” is no law enforcement under the 1992 Constitution but witch hunting Agyebengism, pure and simple. This new Agyebengism provided the pretext for the fishing expedition that “dragged in before” the almighty OSP “Everyone and every person” when Kissi Agyebeng’s political mentor and friend of Asaase Radio fame was allegedly implicated in the IMCIM report to be investigated by the CHRAJ, and who subsequently issued an action for defamation against Prof. Kwabena Frimpong Boateng thereafter. Whether the action for defamation coming after the CHRAJ petition was intended to preempt the pending CHRAJ panel investigation is difficult to answer and better left to the individual’s conjecture.
McCarthyism has no scruples for constitutions and laws but for only cheap popularity. So is the Agyebengism of our time, otherwise he would have washed his hands off the IMCIM report which the President had referred to the Ghana Police Service for investigation and which Mr. Dafeamekpor had petitioned the sole independent constitutional institution entrenched in the Constitution to investigate corruption and abuse of power and office by public servants. Kissi Agyebeng admits that the remit of the OSP is limited to corruption offences specifically provided for under Act 959, so why does he preempt the wider investigatory powers vested in the CHRAJ and the Ghana Police Service to investigate all the reasonably suspected crimes disclosed in the IMCIM report from being exercised by them in rushing to invite suspects on the aspect that implicates his political mentors?
A former Attorney-General, Nii Ayikoi Otoo, hit the nail on the head in an interview to 3news when he described the arrest and bailing of Kwabena Frimpong-Boateng as a “bizarre act” and added that: “It is diversionary, that is my view.” But that is what McCarthyism was about and the new Agyebengism is a copycat McCarthyism. The new Agyebengism leaves reasonable citizens who reflect on Kissi Agyebeng’s “responses again in more sobriety”, to borrow Professor Gyampo’s phrase, to be more worried at the looming tyranny represented by the OSP which Kissi Agyebeng has turned into the Office of the Special Protector with himself as the Special Protector of his friends, mentors, political, and media associates.
The difference between the Ghana Police Service, and the CHRAJ as law enforcement institutions within the established entities named in the Constitution on the one hand and the statutory OSP on the other hand, is demonstrated by how they each treat persons or suspects who appear before them on reasonable suspicions of having committed or being about to
commit a crime. Professor Kwabena Frimpong-Boateng was invited by the Ghana Police Service/CID to assist investigations into the IMCIM report referred to it by the President on 20 March 2023. The Ghana Police Service, a well-established law enforcement entity with decades of investigatory experience did not consider him a flight risk and therefore did not arrest him but let him go to be invited if he was needed.
Kwabena Frimpong-Boateng, was also reported to the CHRAJ on 5 February 2019 by one Arnold Agbodo as the complainant in the matter of a complaint of contravention of Chapter 24 of the 1992 Constitution and causing financial loss to the State. The petition alleged conflict of interest against him as the Chairman of the IMCIM in respect of two mining concession by Symphony Limited in which he and his wife were alleged to have an interest. The investigation, findings, and decisions of the CHRAJ were completed in March 2023 after Frimpong-Boateng had ceased to be a Minister of State on 6 January 2020 but the CHRAJ did not consider him a flight risk to arrest and bail him for his continued appearance for the hearings.
I chaired the PNDC National Investigation Committee (NIC) Sub-Committee that investigated the Cotton Development Board in 1982. I also chaired the NIC – Sub-Committee that investigated the Social Security Bank (SSB) in 1988 while I was PNDC Deputy Secretary to the Volta Region. I was the Deputy Attorney-General for upwards of twelve years with responsibility for directing investigations and prosecutions in the Attorney-General’s Department from October 1988 to 6 January 2001 and a member of the Police Council during that period. I also became the Minister for the Interior with additional responsibility as the Minister for Security and Intelligence before I became an Attorney-General. I operationalized the existence of the OSP as an office and was its founding Special Prosecutor. The basic principle in investigations I internalized from the literature and experience over these years is that one arrests and bails a suspected person when he presents a flight risk or is suspected to likely evade making himself available to assist the investigation when he is needed until a decision is made whether to charge him for a reasonably established suspected offence for possible prosecution in a court of law.
Kissi Agyebeng was unable to point to any reasonable suspicion on his part that Kwabena Frimpong-Boateng presented a flight risk if he was not arrested and granted bail with sureties. The “Everyone and every person” drag net theory of investigation Kissi Agyebeng espouses is a remanent of the bygone Hitler’s Gestapo tactics which Agyebengism is dangerously reintroducing into law enforcement in Ghana. It is a pernicious canker on our Constitution and democracy to be excised immediately before it festers and infects the fabric of decent law enforcement and criminal justice administration. All patriots, therefore, need to join Professor Gyampo to ask the question that nips Agyebengism as canker in the bud – “So, where from this new alien legal maxim being propounded and must we allow Kissi Agyebeng to impose it on us as a people?” OSP’s reaction to the public disclosure of its tyrannical methods of arrest and bail
When the public reacted nauseatingly to the abuse of power by Kissi Agyebeng for arresting and bailing Frimpong-Boateng without any evidence of his being a flight risk despite the established Police Service and CHRAJ deciding to the contrary on the same matter, he deployed rhetoric and blamed Prof. Kwabena Frimpong-Boateng for exercising his constitutional right to liberty in making public his arbitrary arrest and bail. Hear the tyrant saying that Prof Frimpong-Boateng was invited by the OSP on May 16 as “a person
necessary for the investigations” into suspected corruption and corruption-related offences in respect of the activities and expenditure of the dissolved IMCIM.” This was followed by unbridled impunity when he stated that:
“Had the Professor not come out to grant interviews, you wouldn’t have known that he has come to us weeks ago. Since I become (sic) Special Prosecutor in August 2021, I don’t put out these things unless you give me cause. For instance, we’ve directed you to show up and you are not showing up, I will declare you a wanted person.”
Kissi Agyebeng has been tyrannizing citizens presumed innocent under the constitution previously without any of them exercising his constitutional right to free speech on the matter, therefore, Frimpong-Boateng should have kept quiet over the oppression and arbitrariness he suffered at the OSP acting politically for the Special Prosecutor’s mentors and associates in government. The answer to the tyrannic conduct of Kissi Agyebeng in thinking that every citizen must submit to his oppression by not making public what now goes on in the Office of the Special Prosecutor he has turned into the Office of the Special Persecutor or Protector was given by one of my late friends, an honest man of integrity and one of the greatest Justice of the Supreme Court of all time, Mr. Justice N. Y. B. Adade when dealing with an assertion that a court had been sitting as a court of five all the time and no one had raised a finger as justification for unconstitutional conduct. Mr. Justice Adade said:
“That does not mean that a finger can never be raised. It has been raised now, and we can not force it down. If in my reckoning, an error was committed then, there is no reason why that error should be perpetuated simply because it has been done with impunity…”
Ghana needs indeed to thank Professor Kwabena Frimpong-Boateng for his patriotism in making public the arbitrary conduct that takes place at the OSP when citizens who are presumed saints, favourites of the Republic and innocent until proven guilty in a court of law answer the invitation of this Special Prosecutor who is really a Special Persecutor or Protector in disguise when the vested interests of his mentors are at stake. Kwabena Frimpong-Boateng has raised his finger and Kissi Agyebeng cannot force it down with mere rhetoric.
The danger of the new anti-corruption McCarthyism and placid media cronyism
Kissi Agyebeng knows that ordinary citizen fears the stigma of the public knowing that they have been invited and arrested for the non-existing generic offence of corruption and corruption-related offences and assumed that Professor Frimpong-Boateng will be part of the fearful herd. I know other citizens who have suffered the oppression of this Special Persecutor and are bearing it in silence for fear of stigmatization and victimization. This is the time for citizens to stand up and defend their fundamental rights and freedoms bestowed upon them by the Constitution against the new Agyebengism by emulating Professor Frimpong-Boateng and raising their fingers now.
The JoyNews’ Newsfile programme and other programmes featured by it in promoting and defending the indefensible conducts of the new Agyebengism entrenches the tyranny of the Office of the Special Prosecutor now turned into the Office of the Special Persecutor and Protector. I have watched the whole propaganda video of 10 June 2023 which passed for the Newsfile programme. When I listened to how the subject matter for the discussion was introduced selectively, the guest praised to high heavens, and leading questions asked to elicit what appears to be already agreed and rehearsed responses, I wondered whether politico-legal
elitism and cronyism has not invaded the Ghanaian media in the name of educating the public. I do not know whether the public made meaning out of it, but I was shocked by the fact that the programme could only invite former undergraduate students of the Special Prosecutor to discuss the propriety of his actions in trampling on the fundamental rights and freedoms of Kwabena Frimpong-Boateng.
The two panel members on the issue ended up being former undergraduate students of Kissi Agyebeng and later criminal defence lawyers who with the moderator of the Newfile programme prided themselves in joining Kissi Agyebeng in challenging a previous conduct of a law enforcement institution against their clients. A third former undergraduate student of Kissi Agyebeng who also became a lawyer was invited on phone and as expected joined the chorus of praise for their former teacher. After watching the whole video of the Newsfile programme I asked myself whether a good investigator must necessary be a lawyer and whether Ghana did not produce more recognized and experienced investigators and prosecutors who had no undergraduate association with Kissi Agyebeng to have been invited on such an important subject touching on the fundamental rights and freedoms of the citizens?
But when I recollected how the programme deployed the wings of OSP’s eagle and national anthem in Twi as an advertisement for the office to put fear in the public, I concluded that the Newsfile programme of 10 June 2023 passed for a prior arranged free propaganda piece in defence of a beleaguered colleague legal and political elite no matter whether he was right or wrong in his conduct that was the subject of intense public criticism. Inviting independent minded, unbiased, and experienced investigators and prosecutors would have given away the game to protect Agyebengism as the new dictatorship in law enforcement.
The danger with the media lending itself wittingly or unwittingly to promoting the new Agyebengism as a form of McCarthyism in the fight both against galamsey and corruption is that it negates the freedom and independence of the media enshrined in Chapter Twelve (12) of the 1992 Constitution. History does not repeat itself but it rhymes. The history of McCarthyism in the United States of America is there for the legal cum journalist practitioners to learn from. Like it or not, the fight against corruption is not an opportunity for hysteria, entrepreneurship, retribution, and the emergence of a new McCarthyism to be called and styled Agyebengism in Ghana.
CONCLUSIONS The preceding examination and analysis of the circumstances leading to the arrest and bailing of Professor Frimpong-Boateng who was not demonstrably a flight risk leads to the irresistible conclusion that the deficiencies in investigatory and prosecutorial experience of Mr. Kissi Agyebeng is what had 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 of the crime of corruption without first establishing reasonable grounds for such suspicion as though he was on a fishing expedition and was a branch of his law partner Anas Anas’ Tiger Eye PI exhibiting gangsterism and instilling fear into the citizenry.
The foregoing discourse has also shown that by rushing to assume jurisdiction over the IMCIM report on 2 May 2023 against which a petition had already been lodged with the CHRAJ on 25 April 2023 which had already assumed jurisdiction and announced the holding
of a panel hearing open to the public, the OSP gave the impression of an attempt to subvert the primary Constitutional authority vested in the CHRAJ under Article 218 thereof to investigate corruption and thereby to protectively strengthen tangentially and tacitly the claims for defamation by Gabby Otchere-Darko and his cohorts against Frimpong-Boateng.
This discourse has further contended that a drag net for “Everyone and every person” is no law enforcement under the 1992 Constitution but witch hunting Agyebengism, pure and simple. This new Agyebengism provided the pretext for the fishing expedition that “dragged in before” the almighty OSP “Everyone and every person” when Kissi Agyebeng’s political mentor and friend of Asaase Radio fame was allegedly implicated in the IMCIM report to be investigated by the CHRAJ, and who subsequently issued an action for defamation against Prof. Kwabena Frimpong Boateng.
It has further been demonstrated hereinbefore that no volume of rhetoric aided by collaborating political and legal elites in the media could have hidden the facts of the Special Prosecutor’s indebtedness to those who put him in the position he finds himself starting with the leak in Asaase Radio of the nomination which was a proposal to the president even before the president could make up his mind whether or not to accept the nomination. The timing of the invitation, the Gestapo style of the arrest and the grant of bail with sureties to Frimpong-Boateng was, consequently, a clear abuse of power intended to intimidate him and to tacitly support the defamation actions commenced against him by Kissi Agyebeng’s political mentors in the civil court. It constituted a flagrant abuse of investigatory and prosecutorial powers under the 1992 Constitution and Act 959.
The contention in this discourse insists that when tyrannic investigators and prosecutors in the mold of William Kissi Agyebeng are let alone, they deploy empty rhetorical performances that signify nothing to confuse the public. The emerging tyranny of William Kissi Agyebeng is a signal for the activation of the constitutional and patriotic duty of citizens to respond to the abuses of investigatory and prosecutorial power and stop them in their tracks before they destroy this country with a new McCarthyism.
This conversation has shown the difference between the Ghana Police Service, and the CHRAJ as law enforcement institutions within the established entities named in the Constitution on the one hand and the OSP on the other hand, by how they each treat persons or suspects who appear before them on reasonable suspicions of having committed or being about to commit crime who do not pose a flight risk. The OSP arrests and bails them to intimidate “Everyone and every person” whilst the Police and CHRAJ do not.
The foregoing discourse also concludes that the danger with the media lending itself wittingly or unwittingly to promoting the new Agyebengism as a form of McCarthyism in the fight both against galamsey and corruption is that it negates the freedom and independence of the media enshrined in Chapter Twelve (12) of the 1992 Constitution. History does not repeat itself but it rhymes. The history of McCarthyism in the United States of America is there for legal cum journalist practitioners to learn from. Like it or not, the fight against corruption is not an opportunity for hysteria, entrepreneurship, retribution, and the emergence of a new McCarthyism to be called and styled Agyebengism in Ghana. Ghana shall outlive tyranny!
Martin A. B. K. Amidu
June 29, 2023