Vice-President of IMANI Africa, Kofi Bentil, says while the Office of the Special Prosecutor (OSP) must operate with boldness, its actions must still be guided by the Constitution particularly the principle of presumption of innocence.
Speaking on JoyNews’ Newsfile on Saturday, June 7, Mr Bentil expressed support for the OSP’s firm approach to fighting corruption but warned against methods that could undermine constitutional rights.
“The Special Prosecutor, who we all worked to establish, is doing what I think is fair work,” he said. “Somebody may say maybe he is being too aggressive, he necessarily must be aggressive. We asked for that.”
Mr Bentil explained that the courts themselves had previously endorsed such an approach. “When OccupyGhana went to court, the Supreme Court said under the circumstances this country finds itself in, people who are given government power to do things like surcharges, disallowance, and fight corruption must even consider discretion as a duty,” he added. “In other words, given the situation we are in, it’s good to have an aggressive Special Prosecutor so in that sense, we support him.”
However, Mr Bentil raised concerns about some aspects of the law underpinning the OSP’s operations. He said the Constitution is clear about the limits of law enforcement powers and how citizens must be treated during investigations.
“If you read Articles 14 and 19, you will see that the presumption of innocence is fundamental,” he stressed. “The Constitution is very careful; you shall not arrest the person ‘shall not’ except under A, B, C, D.”
He argued that a person refusing to submit to investigation does not give any institution the right to declare them wanted.
“It is not constitutional for any institution to declare a person wanted because they did not submit themselves to investigation,” Mr Bentil said. “Why I am saying so is, again, if you read Article 14, the presumption of innocence is fundamental, and it says you should not portray the person as if he is convicted.”
Rather than issuing a wanted notice, he believes the OSP has other legal avenues it can explore.
“If you’re OSP, you’re aggressive or whatever, you invite somebody and the person says he won’t come, arrest him,” he suggested. “If you cannot arrest or for some circumstance he is refusing or whatever it is, proceed to court and try him in absentia. Or, as we do it, bench warrant, go before a court and explain exactly why. It should only be a court that declares a person wanted.”
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