Pursuant to its mandate, on September 14, 2020 the Special Prosecutor (SP), Martin Alamisi Burns Amidu commenced an analysis of the risk of corruption and anti-corruption on the Agyapa Royalties Limited Transaction, by requesting documentation on the deal from parliament and the ministry of finance. The SP completed his sixty-four page report on October 15, 2020. On October 16, 2020 the SP sent a thirteen page summary detailing the conclusion and observation of the Agyapa Royalties Transaction report to the President and copied the Finance Minister.
The object of the Special Prosecutor as stated in Sections 2, 4 and 29 of the Office of the Special Prosecutor (OSP) Act, 2017 (Act 959) includes investigating and prosecuting corruption and corruption related offences. Regulation 31 of the Office of the Special Prosecutor (Operations) Regulation, 2018 (L.I. 2374) set up a prevention of corruption division within the OSP to enable the OSP receive, collect and collate reports, documents and material, complaints and allegations, information and intelligence with a view to undertake measures of corruption prevention. The scope of corruption prevention include analysis of the risk of corruption, anti-corruption programmes, anti-corruption assessment of legislation and draft legislation, and publication of detected acts of corruption.
Furthermore, the OSP is clothed with authority to identify the causes that advance corruption, facilitate corruption prevention such as deficiencies in regulatory enactments, regulations or procedures; and identify deficiencies in administration of institutions including lack of internal control mechanisms or deficient mechanisms.
According to the SP, on receipt of the conclusions and observation of the report on the Agyapa Royalties Transaction, the Chief of Staff on behalf of the President, directed the SP not to act on the report until the SP had met with the President.
Subsequently, on October 23, 2020 the SP met and held discussions with the President on the summary report on the Agyapa Royalties Transaction. At the meeting, the SP stressed that the Agyapa Royalties Transaction was conducted professionally, hence could not be reviewed by the Finance Minister or the President. The SP also stated that he did not expect to receive directions from the President on how to conduct affairs at the OSP, particularly after the President had received the report on conclusions and observations of Agyapa Royalties Transaction.
However, per the narrative of the SP, the President insisted that the SP withhold any further action on the summary report on the Agyapa Royalties Transaction for one week. The SP reluctantly agreed to the demand of the President, but gave notice that he would not continue in his role because the President was by his actions interfering with the work of the SP.
Thereafter, on the November 1, 2020 the President invited the SP to his office for another meeting where he presented the comments of the Finance Minister on the summary report of Agyapa Royalties Transaction to the SP. According to Martin Amidu, he refused to accept the comments of the Finance Minister, because he believed it would compromise the independence of the OSP. The SP also states that the President asked him to shelve the Agyapa Royalties Transaction report for the Presidency to ‘handle the matter’. However, the SP refused, culminating in the public release of the full sixty-four page analysis of corruption and anti-corruption report on the Agyapa Royalties Transaction on November 2, 2020.
On the same day, the President also caused a press release to be made based on the summary report (observations and conclusions) which the SP insists downplayed the ‘seriousness of the professional analysis’ of the Agyapa Royalties report.
The SP further asserts that he had intended to open full investigations because of the serious corruption and anti-corruption offences identified during the assessment.
However, the political interference by the president for two weeks specifically, from October 20, 2020 to November 2, 2020 culminating in the President’s directive on how the Agyapa Royalties Transaction report was to be handled thwarted his efforts.
Furthermore, the SP accused the president of acting against the principle of natural justice by being a judge in his own case when he knew fairly well that a negative anti-corruption assessment had been made against the office of the President on the procedures adopted in granting executive approval dated March 24, 2020 and his assent of the Minerals Income and Investment (Amendment) Act, (Act 1024) on August 27, 2020 to give retrospective impact to parliamentary approval of the Agyapa Royalties Transaction documents on August 14, 2020.
It is worth noting that the Special Prosecutor Act, 2017 (Act 959), frowns on interference or obstruction of work of investigative officers. Section 69 (3) of the Office of the Special Prosecutor Act, 2017 (Act 959) states;
“A person who obstructs an authorized officer from performing a function under the Act commits an offense and is liable on summary conviction (a) in the case of an individual to a fine of not less than two hundred penalty units and not more than seven penalty units or a term of imprisonment of not less than 15 months and not more than 36 months or both.”
On the claim of political interference, the Secretary to the President Nana Bediatuo Asante, strongly rejected the claims of Martin Amidu in a rebuttal issued on November 17, 2020. Nana Bediatuo Asante wonders what could seriously prevent the SP from moving further to investigate any acts of corruption if he so wished.
“You are clearly aware that the President had accepted the observations you had made in the Agyapa Report and had acted on it by issuing directives to officials of the Ministry of Finance and the Attorney Generals Department. This cannot be the conduct of a person seeking to hamstring your efforts or to avoid the content of the report,” the Secretary to the President noted.
Nana Bediatuo Asante continued, “It is difficult to find any tangible basis for the claim of political interference in the performance of your functions from October 20, 2020 to November 1, 2020. The President’s meetings with you and the request to give public officers a hearing cannot sincerely give rise to such allegations.”
However, on November 19, 2020 Martin Amidu revealed during an interview that the Minister of Finance came to his home while he was writing the Agyapa Royalties Transaction report. Martin Amidu also asked rhetorically: “Was he (Finance Minister) not here (Amidus residence) on October 21, 2020?
In 2009 during the Kufuor administration, CHRAJ after investigations accused Richard Anane, Minister for Roads and Highways of graft. President Kufour in his reaction to the issue, asked Richard Anane to resign from government and clear his name.
Subsequently, Richard Anane resigned, went to court and was exonerated. Thereafter, President Kufuor reappointed him as minister in his cabinet.
Therefore, one wonders why President Akufo Addo did not ask the Finance Minister and Deputy Finance Minister spearheading the Agyapa deal, to resign and for the SP to continue full investigation into the Agyapa Royalties Transaction. After all, whatever comments the Finance Minister had could be made available when the SP opens full investigations on the Agyapa Royalties Transaction or at court to contest any adverse findings.
The act of obstruction of justice is mostly associated with abuse of office. Executive power is huge and can be abused in an attempt to thwart the course of justice, as was seen in the Watergate scandal, which saw the resignation of President Nixon as the President of the United States for obstruction of justice, abuse of power and contempt of the US Congress.
In conclusion, I believe sincerely in the words of Bob Marley and the Wailers (1978) that only “time will tell” whether the President’s defence on political interference will hold. One thing is however certain in the unfolding drama; the repercussions of the Agyapa Royalties Transaction have been a ‘thorn in the flesh’ of the government of the NPP. As President Kufuor reflected in a recent interview about his time in office,
“A president must always be alert, ensuring that his ministers are performing as expected and must be ready to change or reshuffle his cabinet if need be.”