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Chief Justice Anin Yeboah
The Supreme Court has held that Martin A.B.K. Amidu is eligible to be the Special Prosecutor because his position cannot be compared to the public service that is at the retirement age of 60 years as prescribed in Articles 190, 195 and 199 of the 1992 Constitution.
In a 5-2 majority decision, the court held that the Office of the Special Prosecutor (OSP) is similar to that of Article 70 of the incumbents of the 1992 Constitution.
Article 70 office holders include the President of the Electoral Commission, the Commissioner, the Commission on Human Rights and Administrative Justice and the President of the National Commission for Civic Education.
“We emphatically conclude by affirming that the category of public officials to whom the Special Prosecutor has the greatest affinity are the holders of positions in Article 70 whose conditions of service, including the age of retirement, are linked to those of the judges of the Court of Appeal”.
“The Parliament, when prescribing the method of appointment of the Special Prosecutor and the Deputy different from Article 195 (1), did not reject the constitution,” the court held.
Chief Justice Kwasi Anin Yeboah
The court’s decision follows a lawsuit filed by Dr. Dominic Akuritinga Ayine, a former Deputy Attorney General, who argued that Mr. Amidu was not eligible to be the Special Prosecutor because he was 66 years old at the time of his appointment and, therefore, his appointment was unconstitutional.
It is constitutional
According to its decision, the superior court has declared Section 13 (5) of the Special Prosecutor’s Office Law of 2017 (Law 959) as constitutional, which equates the conditions of service of the PASB with those of the holders of positions in Article 70.
Judge Nene Amegatcher
The only difference is that Section 13 (5) of Law 959 makes the position of the Special Prosecutor a non-renewable term of seven years, while the holders of Article 70 positions retire at the age of 70 years.
The majority decision was read by Judge Nene Amegatcher, who had the support of the President of the Court, Judge Kwasi Anin Yeboah, and Judges Paul Baffoe-Bonnie, Samuel K. Marful-Sau and Professor Nii Ashie Kotey.
Justice Prof. Nii Ashie Kotey
Judges Nasiru Sule Gbadegbe and Agnes Dordzie disagree.
Bold decision
The country’s highest court held that the creation of the OSP was a bold decision by Parliament to combat corruption, and therefore that office cannot be treated as an ordinary public office.
Judge Paul Baffoe-Bonnie
“The approval of Law 959 was a bold step taken by Parliament in the fight, this time targeting an independent person with experience, integrity and history in the fight against corruption and possibly hoping this time to succeed. We will be surprised if Parliament’s intention in establishing this office was to turn it into another ordinary public service institution. “
The court also held that Parliament was right to treat the PASB’s tenure and conditions as different to protect its independence.
Judge Agnes Dordzie
“We believe that the Special Prosecutor is important, that is, to curb corruption and guarantee probity, responsibility and transparency for all. Guaranteeing independence in their functions and protection against victimization for work carried out under the constitution guarantees the security of tenure of the Special Prosecutor.
“Consequently, the plaintiff’s appeal fails in its entirety and all appeals are dismissed,” the court held.
Justice N.S. Gbadegbe
Background
According to Dr. Ayine, according to a true and adequate interpretation of articles 190 (1) (d), 199 (1), 199 (4) and 295 of the 1992 Constitution, the retirement age of all holders was created of public office. pursuant to Article 190 (1) (d), it was 60 years, which could be extended to 65 years.
He argued in his case statement that by nominating and appointing Mr. Amidu to be examined and approved by Parliament, both the A-G and the President had violated Article 199 (1) of the 1992 Constitution.
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