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Introspecting the Office of the Special Prosecutor's Act and Ghana's Constitutional Framework on Anti-Corruption

Document Cited in Related
Vincent
Date01 May 2020
Pages219-243
DOI10.3366/ajicl.2020.0311
Published date01 May 2020
INTRODUCTION

Ghana's 1992 Constitution is a designedly model one in architecture.1 From a multiplicity of standpoints, the constitutional document incorporates core values and supporting institutional systems and structures fashioned to advance the ends of responsible governance and maintain the underlying trusteeship mores of the Constitution.2 Given that the constitutional framework is broadly anchored on the Rule of Law (ROL) as an overarching regime norm, the governance system established indubitably preserves accountability in its various forms.3 In this regard, and within the context of the rule of law, the constitution reflects an ideal of that theoretical construct and articulates the strictures of constitutionalism and constitutional responsibility.

Yet, it is fair to accept the view of the generality of critics who assert that the constitution emulates the ROL more than it upholds it, especially in the areas of responsible governance and accountability.4 In the view of these critics, there has grown a mammoth wedge between the intended checks and balances that were designed and instilled into the document to promote constitutional trusteeship on the one hand and the reality of unchecked corruption in Ghanaian public life in general on the other. Thus, from the blatant abuse of executive power to the menace of clientelism5 and state capture,6 the legal and judicial accountability systems established under the Constitution can be said to have, at best, operated sub-optimally. This then raises the key question as to whether the Constitution suffers from a problem of structural and conceptual ambiguity. Put more starkly, it has been asked whether the framework nature of the Constitution in key areas of its operation, like many of its kind,7 which leaves many issues to the exercise of discretionary authority and legislative fill-ins, is to blame.

This article is divided into five parts. Part I reviews the theoretical perspectives on corruption and the political economy of the ROL. Part II of the article examines the scope and dynamics of the ROL under the 1992 Constitution and analyses the document's perceived ascription to the theory's values. In Part III, the article analyses the constitutional framework on anti-corruption and how this succeeds or fails in enforcing regime ethos against the menace. Part IV specifically focuses on the novel and historic Office of the Special Prosecutor's Act passed by Ghana's Parliament and analyses its prospects as well as the extent to which the legislation succeeds in fighting against corruption. Finally, in Part V, the article examines the politics of the ROL and accountability from the standpoint of corruption and political opportunism.

 THEORETICAL PERSPECTIVES ON CORRUPTION AND THE RULE OF LAW

The regressive correlation between a weak regime of the ROL and the high prevalence of corruption is now generally taken for granted in the literature on development theory and has represented a dominant narrative for third-world governance reform strategies.8 A plethora of studies and reform initiatives have been premised on this assumption thereby elevating the reality of a connection beyond doubt.9 Yet the nature and scope of the relationship seem tenuous at best if not altogether disputed with some scholars willing to expand the boundary more than others. Clarifying this relationship is functionally useful for an understanding of the menace of corruption within the governance paradigm of emergent democracies as well as the design and framing of reactive policies in that respect.

The theory that the prevalence of corruption correlates with the level of development of the ROL enjoys a large support base in the scholarship.10 That school rests on the core proposition that the strength of the ROL as a governance ethos provides an effective buffer against corruption by the inherent values and principles espoused by the theory. Proponents of this argument stress the impact of legal regulations and the low incidence of discretionary authority and human interfaces in decision-making as the explanatory factors accounting for this. In other words, given the fact that legal rules have standard-setting tendencies, the spaces and options created for corrupt behaviour are reduced within the context of regulation. In the view of ROL advocates, the crafting and deployment of an ROL regime promotes a level of discipline inspired by the law which tends to both shape and superintend decision-making processes in a manner that eliminates subject preferences and corrupt influences. The substitution of the ‘human will’ with the law has invariably been recognised and accepted as a powerful intervening tool which promotes not only transparency but also accountable governance founded on law and equity.

It is instructive to note that the preponderance of development assistance programmes have been constructed and effected on this theoretical model throughout the world.11 Especially within the context of the World Bank's reform initiatives in Africa, belief in the ROL as the central panacea to the problem of corruption is reflected in the Bank's lending conditionality and the reform specifications that have over the years been implemented on the continent.

In many ways, the ROL-led reforms have been informed by the assumption that when applied, the concept as a theoretical legal stratagem and the substructural values espoused by it will promote neutral decision-making and superintend the allocations of entitlements. This assumption also stresses the capacity of the ROL to reduce (if not eliminate) the incidence of rent-seeking, clientelism and other patronising behaviour. In other words, a significant component of development assistance has been predicated on the reform of governance systems tilted towards neo-liberal values. In enforcing the adoption of ROL initiatives in the global development agenda, the World Bank advanced an external accountability dynamic in which the ROL became a vital value-chain indicium for the approval of Bank facilities.

From the outset, however, it is imperative that we define what the ROL is or means within the context of its application and functional usage. While any review of the scholarship will reveal a multiplicity of understandings and conceptions of the ROL,12 there exists a broad consensus that the theory provides an analytical construct for measuring the dynamics of government relative to prior injunctions imposed and dictated by law. This general conception pictures the ROL as a theoretical model defining the relationship between the governed and the leaders in which the powers of the latter are invariably curbed and defined by the law.

While various scholars have throughout history offered alternate definitions, the theory as explained by A. V. Dicey has generally been cited as providing a comprehensive framework for analysing the ROL and applying it to governmental systems. In his 1885 book titled the Introduction to the Study of the Law of the Constitution,13 Dicey argues a tripartite theoretical model in which the ROL comprised the following sub-components, namely the general application of the law to all persons, the determination of disputes through the ordinary courts of the land, and respect for the fundamental human rights of citizens.14 This early rendition of the ROL laid the foundation for notions of legal supremacy and the elimination of subjective preferences in the allocation of entitlements and the administration of justice. This ‘Diceyan’ model of the ROL was virtually internationalised when the United Nations defined the ROL as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards’,15 Indeed the constituent elements of this definition find expression within the lending conditionalities of the World Bank and general reform prescriptions that are offered countries who have accessed the Bank's assistance initiatives.16

Yet the varying conceptions of the ROL and the heterogeneity of the intentions behind its uses have been well recognised in the scholarship.17 For example, critics have questioned settled assumptions by drawing attention to the fact that the content of the ‘law’ in the ROL needs to be deconstructed and critiqued.18 It is in this regard that Santos's redeployment of the theory gains added significance especially as regards the role of law in governance reform and development assistance. His work like that of others was teleological and forces an instrumental conception of the ROL as a governance theory.19 Santos conceived the ROL as comprising four key conceptions, namely institutional and substantive conceptions and instrumental and intrinsic conceptions, and each of these typologies reflects an understanding or use to which the theory is put at any given point in time. Within the meaning of his classification, the institutional variant of the ROL reflects a more descriptive version or use of the theory under which no value judgment is passed on the character of the ‘law’ as such. In this regard, the institutional kind of the ROL is a detached model in which the theory merely describes the prevalence of law and its operation within a given legal system without providing a corresponding normative framework for assessing the quality of the law. This is sharply contrasted with the substantive conception of the theory which essentially asserts a value-laden model of the law. Santos's substantive conception of the law essentially structures the theory as a barometer for gauging the quality of legal systems. In this context, the ROL fitted the prescriptive policies of the development assistance community such as the World Bank and IMF and enabled the use of the ROL as a reform...

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