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Office OF THE Special Prosecuter BILL, 2017
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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Office Office of the Special Prosecutor Bill, 2017 of the Special Prosecutor Bill, 2017 ARRANGEMENT OF SECTIONS Section Office of the Special Prosecutor 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Establishment of the Office of the Special Prosecutor Object of the Office Functions of the Office Independence of the Office Governing body of the Office Duties and liabilities of a member of the Board Tenure of office of members of the Board Meetings of the Board Disclosure of interest Establishment of committees Allowances Administrative and Financial Provisions 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Nomination and appointment of Special Prosecutor Functions of Special Prosecutor Removal of Special Prosecutor Nomination and appointment of Deputy Special Prosecutor Functions of Deputy Special Prosecutor Removal of Deputy Special Prosecutor Divisions of the Office Secretariat of the Office Appointment of other staff Funds of the Office Bank account Expenses of the Office Accounts and audit Annual report and other reports Complaints and Referrals 26. Complaint procedure and referrals Powers of the Office 27. Officers to exercise powers of police 28. Request for information 1 29. Power to search and take possession of documents of the Special Prosecutor Bill, 2017 Office Office of the Special Prosecutor Bill, 2017 30. 31. 32. 33. 34. 35. 36. 37. 38. Proceeds of Corruption or Corruption Related Offence Seizure of tainted property Power to search for tainted property Searches in emergencies Application of Part Two of Act 30 Offence relating to search and seizure and obstruction of authorised officer Property tracing Record of seized property Return of seized property Mutual legal assistance Freezing Order 39. 40. 41. 42. 43. 44. 45. 46. Freezing of property Application for freezing order Issue of freezing order Effect of freezing order Breach of freezing order Duration of freezing order Review of freezing order Extension of freezing order Disclosure 47. Disclosure of funds and other assets 48. Use of information contained in disclosure 49. Inaccurate disclosure of funds and other assets Confiscation Order 50. 51. 52. 53. 54. 55. 56. Application for confiscation or pecuniary penalty order Notice of application Amendment of application Procedure on application Procedure against property where a person dies or absconds Confiscation order against property Effect of confiscation order 2 Office of the Special Prosecutor Bill, 2017 A BILL ENTITLED OFFICE OF THE SPECIAL PROSECUTOR ACT, 2017 AN ACT to establish the Office of the Special Prosecutor as a specialised agency to investigate specific cases of corruption involving public officers and politically exposed persons in the performance of their functions as well as persons in the private sector implicated in the commission of corruption, prosecute these offences on the authority of the and provide for related matters. PASSED Parliament and assented to the President: Office of the Special Prosecutor Establishment of the Office of the Special Prosecutor 1. (1) There is established this Act a body corporate with perpetual succession to be known as the Office of the Special Prosecutor. (2) For the performance of its functions, the Office may acquire and hold movable and immovable property, dispose of property and enter into a contract or any other transaction. (3) Where there is hindrance to the acquisition of property, the property may be acquired for the Office under the State Lands Act, 1962 (Act 125) and the cost shall be borne the Office. 4 Office of the Special Prosecutor Bill, 2017 Object of the Office 2. The object of the Office is to (a) investigate and prosecute cases of corruption and corruption related offences to prevent corruption in the public and (b) recover the proceeds of corruption and corruption related offences. Functions of the Office 3. (1) To achieve the object, the Office shall (a) investigate and prosecute cases of alleged corruption and corruption related offences under the Public Procurement Act, 2003 (Act (b) investigate allegations of corruption and corruption related offences under the Criminal Offences Act, 1960 (Act 29) implicating public officers, politically exposed persons and persons in the private sector implicated in the commission of the (c) prosecute corruption and corruption related offences involving public officers, politically exposed persons and persons in the private sector implicated in the commission of the (d) recover the proceeds of (e) disseminate information gathered in the course of investigation to competent authorities and other persons the Office considers appropriate in connection with the offences specified in paragraphs (a) and (f) and coordinate with competent authorities and other relevant local and international agencies in furtherance of this (g) receive complaints from a person on a matter that involves or may involve corruption and corruption related and (h) perform any other functions connected with the object of the Office. 5 Office of the Special Prosecutor Bill, 2017 (d) one representative of the Ghana Police Service not below the rank of Assistant Commissioner of (e) one lawyer in private practice with at least ten experience nominated the Ghana Bar (f) the Chief Executive Officer of the Financial Intelligence (g) one representative of the Commission for Human Rights and Administrative Justice not below the rank of a (h) one person with background in intelligence and not below the rank of a Director nominated the Minister responsible for National and (i) one other person who is a female. (2) The members of the Board shall nominate one person from among their number as chairperson of the Board. (3) The President shall appoint the members of the Board in accordance with article 70 of the Constitution. (4) The President, in making the appointments under paragraphs (d), (e), (g) (h) and (i) of subsection (1), shall have regard to (a) expertise in corruption (b) high moral character and proven and (c) (5) The Board shall (a) formulate policies necessary for the achievement of the objects of the and (b) ensure the proper and effective performance of the functions of the Office. Duties and liabilities of a member of the Board 6. (1) A member of the Board has the same fiduciary relationship with the Office and the same duty to act with loyalty and in good faith as a director of a company incorporated under the Companies Act, 1963 (Act 179). 7 Office of the Special Prosecutor Bill, 2017 not (2) Without limiting subsection (1), a member of the Board shall (a) engage in a conduct or an activity that may undermine the integrity, independence and impartiality of the (b) be a party to an investigation or prosecution concerning a matter in respect of which the member has an or (c) make improper use of any information obtained as a result of the performance of the duties of the Office or virtue of the position of the member as a member of the Board. (3) Articles 284 to 288 of the Constitution apply to a member of the Board other than a member nominated under paragraph (e) of subsection (1) of section 5. (4) A member of the Board who contravenes this section ceases to be a member of the Board. Tenure of office of members of the Board 7. (1) A member of the Board shall hold office for a period of three years and is eligible for but a member shall not be appointed for more than two terms. (2) Subsection (1) does not apply to the Special Prosecutor and the Deputy Special Prosecutor. (3) A member of the Board may at any time resign from office in writing addressed to the President through the Minister. (4) A member of the Board who is absent from three consecutive meetings of the Board without sufficient cause ceases to be a member. (5) Where a member of the Board is, for a sufficient reason, unable to act as a member, the Minister shall determine whether the inability would result in the declaration of a vacancy. (6) Where there is a vacancy (a) under subsection (3) or (4), subsection (4) of section 6, subsection (5) of section 8 or subsection (2) of section (b) as a result of a declaration under subsection or (c) reason of the death of a member, the Minister shall notify the President of the vacancy and the President shall appoint a person to fill the vacancy. 8 Office of the Special Prosecutor Bill, 2017 (3) Without limiting any further cause of action that may be instituted against the member, the Board shall recover the benefit derived a member who contravenes subsection (1) in addition to the revocation of the appointment of the member. Establishment of committees 10. (1) The Board may establish committees consisting of members of the Board or or both, to perform a function of the Board. (2) A committee of the Board may be chaired a member of the Board. (3) Section 9 applies to members of a committee of the Board. Allowances 11. Members of the Board and members of a committee of the Board shall be paid allowances approved the Minister in consultation with the Minister responsible for Finance. Administrative and Financial Provisions Nomination and appointment of Special Prosecutor 12. (1) A person shall not be qualified for appointment as the Special Prosecutor unless that person (a) possesses the relevant expertise on corruption (b) is of high moral character and proven and (c) is a lawyer of at least twelve years standing at the Bar. (2) The shall nominate a person qualified for appointment as Special Prosecutor the President, subject to the approval of the majority of all the members of Parliament. (3) The President may delegate the power of appointment of the Special Prosecutor in writing to the and Minister for Justice. (4) The Special Prosecutor shall hold office on the same terms and conditions of service as a Justice of the Court of Appeal except that the tenure of Office shall be a tenure of seven years. (5) The Special Prosecutor shall in accordance with clause (4) of article 286 of the Constitution and section 1 of the Public Office Holders (Declaration of Assets and Disqualification) Act, 1998 (Act 550) or a statutory 10 Office of the Special Prosecutor Bill, 2017 modification or of that Act, submit to the a written declaration of (a) the properties or assets owned directly or indirectly the Special or (b) the direct or indirect liabilities of the Special Prosecutor. (6) The salary of the Special Prosecutor shall not be varied to the disadvantage of the Special Prosecutor during the tenure of office. (7) The Special Prosecutor shall not while holding office, hold any other public office or engage in any commercial venture. (8) Where the Office of the Special Prosecutor becomes vacant, the President shall appoint a person qualified for appointment as Special Prosecutor to act in that position for a period of not more than six months. (9) Before assuming office, the Special Prosecutor shall take and subscribe to the Oath of Secrecy specified in the Schedule. Functions of Special Prosecutor 13. (1) The Special Prosecutor is accountable to the Board in the performance of the functions under this Act. (2) The Special Prosecutor shall have full authority and control over the investigation, initiation and conduct of proceedings under paragraph (a), (b) and (c) of section 3. (3) The Special Prosecutor may delegate a function to an authorised officer but shall not be relieved of the ultimate responsibility for the performance of the delegated function. Removal of the Special Prosecutor 14. (1) The Special Prosecutor shall not be removed from office except (a) for stated misbehaviour or or (b) inability to perform the functions of the office arising from infirmity of body or mind. (2) A person who seeks to remove the Special Prosecutor from Office shall submit a petition to the President. (3) Where the President receives a petition for the removal of the Special Prosecutor, the President shall refer the petition to the Chief Justice who shall determine whether there is a prima facie case. 11 Office of the Special Prosecutor Bill, 2017 (6) The salary of the Deputy Special Prosecutor shall not be varied to the disadvantage of the Deputy Special Prosecutor during the tenure of office. (7) The Deputy Special Prosecutor shall not while holding office, hold any other public office or engage in any commercial venture. (8) Before assuming office, the Deputy Special Prosecutor shall take and subscribe to the Oath of Secrecy specified in the Schedule. Functions of Deputy Special Prosecutor 16. (1) The Deputy Special Prosecutor shall perform functions that may be assigned the Special Prosecutor. (2) The Deputy Special Prosecutor shall act in the absence of the Special Prosecutor. Removal of the Deputy Special Prosecutor 17. (1) The Deputy Special Prosecutor shall not be removed from office except (a) for stated misbehaviour or or (b) inability to perform the functions of the office arising from infirmity of body or mind. (2) A person who seeks to remove the Deputy Special Prosecutor from Office shall submit a petition to the President. (3) Where the President receives a petition for the removal of the Deputy Special Prosecutor, the President shall refer the petition to the Chief Justice who shall determine whether there is a prima facie case. (4) Where the Chief Justice determines that there is a prima facie case, the Chief Justice shall inform the President who shall set up a Committee consisting of (a) a chairperson, who is a Justice of the Supreme Court, (b) a lawyer of at least fifteen years standing at the Bar, and (c) one other person with expertise in investigations. (5) The Committee shall investigate the matter and make its recommendation to the President through the Chief Justice. (6) The President shall act in accordance with the recommendation of the panel. 13 Office of the Special Prosecutor Bill, 2017 Divisions of the Office 18. (1) The Office shall have the following Divisions: (a) Administrative (b) Investigations (c) Prosecutions and (d) Asset Recovery and Management Division. (2) The Board may establish any other division necessary for the effective performance of the functions of the Office. Secretariat of the Office 19. (1) The Office shall have a Secretariat headed the Secretary. (2) The Board shall designate a person from among the staff of the Office to head the Secretariat. (3) The Secretary is responsible for (a) the day to day administration of the Office and is answerable to the Special Prosecutor in the performance of functions under this and (b) arranging the meetings of the Board. Appointment of other staff 20. (1) The President shall in accordance with article 195 of the Constitution, appoint other staff of the Office that are necessary for the proper and effective performance of the functions of the Office. (2) The President may in accordance with article 195 (2) of the Constitution delegate the power of appointment in writing to the Board. (3) Other public officers may be transferred or seconded to the Office. (4) The Office may engage the services of advisers and investigators on the recommendation of the Board. Funds of the Office 21. The funds of the Office include (a) moneys approved and (b) donations and grants approved the Minister responsible for Finance. 14 Office of the Special Prosecutor Bill, 2017 (4) The Board shall submit to the Minister any other report which the Minister may require in writing. Complaints and Referrals Complaint procedure and referrals 26. (1) A person may lodge a complaint under this Act if that person has knowledge of the commission of corruption or a corruption related offence. (2) The complaint referred to in subsection (1) shall be made in writing or orally. (3) Where the complaint is made in writing, the complaint shall be signed the complainant or the representative of the complainant. (4) Where a complaint is made orally, the officer to whom the complaint is made, shall reduce the complaint into writing and the complainant shall sign or make a thumbprint on the complaint. (5) A public agency may refer a matter in relation to corruption or a corruption related offence to the Office. Powers of the Office Officers to exercise powers of police 27. The Special Prosecutor and authorised officers shall exercise the powers of a police officer specified in the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) or any other enactment. Request for information 28. (1) The Special Prosecutor or an authorised officer may notice in writing, require (a) a person or a representative of an entity whose affairs are to be or (b) a person who in the opinion of the Special Prosecutor is a proper person to assist with an investigation being conducted the Office to appear before the Special Prosecutor or an authorised officer at a specified date and place to answer questions or furnish the Office with information related to a matter relevant to the investigation. 16 Office of the Special Prosecutor Bill, 2017 (2) Where a person required to furnish the Office with a document is unable to produce the document, the Special Prosecutor shall request the person to state where the document is or the reason for the inability to produce the document. (3) Where a person required to furnish the Office with a document is under an obligation not to disclose, the Special Prosecutor shall apply to Court for an order for the production of the document. (4) Where a document is furnished to the Office, the Special Prosecutor or an authorised officer shall make copies or extracts from the document and request the person producing the document to provide an explanation on the contents of the document where necessary. (5) A person who appears before the Special Prosecutor or an authorised officer may be represented counsel of the choice of that person at any stage of the process. (6) Where a person refuses, conceals or otherwise fails to produce a document required the Special Prosecutor or an authorised officer, that person commits an offence and is liable on summary conviction to a fine of not less than five hundred penalty units and not more than one thousand penalty units or to a term of imprisonment of not less than one year and not more than two years or to both. Power to search and take possession of documents 29. (1) The Special Prosecutor shall apply to the Court, without notice to the person or entity under investigation, to issue a warrant authorising a police officer to enter premises in the possession of or under the control of the specified person or entity to search and remove a document specified in the application if (a) the person or entity required to produce the document to the Office fails or refuses to produce the (b) the Special Prosecutor is of the opinion that the service of the notice to produce a document shall prejudice the or (c) it is not practicable to give a disclosure notice requiring the production of the document. 17 Office of the Special Prosecutor Bill, 2017 (2) An authorised officer shall (a) search a person in respect of tainted or (b) enter any land or premises and conduct a search in respect of tainted property and seize in the course of the search, the property which the authorised officer believes on reasonable grounds to be tainted property. (3) A search in respect of tainted property includes search of the (a) body and clothing worn the person being (b) property in or apparently under the control of the person being and (c) property of the owner or occupier of the land or premises. (4) For purposes of paragraph (a) of subsection (3), a female authorised officer shall search a female and a male authorised officer shall search a male. (5) An authorised officer may gather forensic evidence in the course of a search. (6) The Court shall consider an application without notice which claims that communication in any medium including an article sent post or through a courier service is likely to contain information that may be relevant to an investigation or prosecution under paragraph (b) of section 3 and the Court shall, where appropriate, order an authorised officer to (a) intercept, detain and open the article in the course of transmission postal or courier (b) intercept a message transmitted or received any means of (c) intercept or listen to any conversation any means of or (d) enter premises and install on the premises a device for the interception and retention of communications of specified description and remove and retain the device. Searches in emergencies 32. (1) Where an authorised officer suspects on reasonable grounds that (a) a particular property 19 Office of the Special Prosecutor Bill, 2017 (i) is tainted or (ii) will provide evidence as to the commission of an offence under paragraph (b) of section 3, (b) it is necessary to exercise the power of search and seizure in order to prevent the concealment, loss or destruction of property, and (c) the circumstances are so urgent that immediate exercise of the power without the authority of a warrant or the order of a Court is required, the authorised officer shall search a person, enter premises and search for the property and if the property is found, seize the property. (2) If during the course of the search, the authorised officer finds (a) property that the authorised officer believes on reasonable grounds to be tainted or (b) anything the authorised officer believes on reasonable grounds will afford evidence as to the commission of another offence, the authorised officer shall seize that property. Application of Part Two of Act 30 33. (1) The provisions on search a police officer under Part Two of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) apply for the purpose of this Act where an authorised officer has reasonable grounds to suspect that there may be tainted property on land or in any premises. (2) If during the course of the search the authorised officer finds (a) property that the authorised officer believes on reasonable grounds to be tainted property of a type not specified in the warrant, or tainted property related to another or (b) any article the authorised officer believes on reasonable grounds will afford evidence as to the commission of the offence or commission of an offence, the authorised officer shall seize that property and the warrant shall be considered to authorise that seizure. 20
Office OF THE Special Prosecuter BILL, 2017
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
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