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Can an Office of an Independent Special Prosecutor be created where Article 88(3) of the 1992 Constitution commands that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences?”
The short answer is Yes, but only through the issuance of a Constitutional Instrument by the Attorney General. That also means such an office cannot be created by an Act of Parliament or an Executive Instrument issued by the President. Of course, it goes without saying that Parliament could, if it was so inclined annul such a regulation before it becomes law but only by the votes of not less than two thirds of all the members of Parliament (i.e., 183 votes will be needed to annul any such proposed Constitutional Instrument issued by the Attorney General). It is also clear that the President will have ample opportunity to provide input to the Attorney General in any such exercise.
That the Attorney General can set up such an office by CI is clearly supported by Article 296(c), which empowers constitutional officers to publish by constitutional instrument, regulations that are not inconsistent with the provisions of this Constitution, to govern the exercise of their discretionary power.
The proposed CI could be grounded in Article 284, which requires public officers not to put themselves in a position where their personal interest conflicts or is likely to conflict with the performance of the functions of their office. Thus, the AG could define certain covered persons (e.g., the AG and his family, the executive, ministers, MPs or other politicians, etc.) whose prosecution creates conflict of interest and whose cases, where applicable, shall be referred to the Office of an Independent Special Prosecutor.
What about Act 30 (1960) and NRCD 279, both of which empower the AG to appoint private lawyers under certain circumstances? In my opinion, these lawyers are not “special” or “independent” in that they work at the direction of the AG. Thus, these laws are not germane to the discussion of the Office of Independent Special Prosecutor.
What matters should such a CI address?
- The CI should clearly state the grounds for appointing a Special Prosecutor. That is, at a minimum, the CI should stipulate covered persons, covered crimes and the proof needed before the Special Prosecutor is appointed.
- The CI should stipulate the process for evaluating the proof. For instance, who should do a preliminary evaluation of the allegations against covered persons to determine whether the Special Prosecutor should be named? Clearly, the AG cannot be the person making this determination. For to allow that is to defeat the purpose of the regime being created. In this regime, CHRAJ, EOCO and findings from other investigatory bodies relating to covered persons and crimes can automatically trigger the appointment of the Special Prosecutor thereby insulating the findings from the vagaries of government white paper.
- The CI should state clearly who qualifies to be appointed as a Special Prosecutor. We must debate whether we want a permanent Office of a Special Prosecutor or floating Special Prosecutors who are appointed on a need basis. My bias is the latter. I think creating an office with permanent staff will be dysfunctional. Such offices atrophy and are corrupted over time.
- The CI should clearly state the appointing authority. My recommendation is a 3-member panel of the Court of Appeal.
- The CI should clearly define the scope/jurisdiction of a Special Prosecutor so that it is known with certainty when prosecutions will be initiated and terminated and what matters are covered by such prosecution. We do not want the Special Prosecutors to become “monsters.”
- The CI should stipulate very clearly the Special Prosecutor’s investigatory and prosecutorial power.
- The CI should state very clearly the code of conduct that the Special Prosecutor must follow in her work. The Special Prosecutor must be a person of proven integrity and objectivity who puts justice above politics and winning a case.
- The CI should state very clearly the process that the Special Prosecutor will have to go through if she needs to deploy staff from the AG’s office.
- The CI should state very clearly the financial implications of the office, including the compensation and allowances to be paid to the Special Prosecutor, her staff, resources available to the Special Prosecutor and limits on the cost of investigation and prosecution.
- The Special Prosecutor must operate within the Fast Track Court, if it still exists, not the Slow Track Court, where suits against the General Legal Council are determined.
Finally, even with the passage of the CI, offences prosecuted by the Special Prosecutor shall be at the suit of the Attorney-General (i.e., styled as, Attorney General v Kalabule) although it is permissible for the CI to designate that prosecutions under the CI shall be at the suit of the Special Prosecutor (i.e., styled as Special Prosecutor v Kalabule).