Opinion: The AG has not breached any law or rules of professional ethics in the Ato Forson and Richard Jakpa trial
The 1992 Constitution is the supreme law of Ghana followed by Acts or legislations passed by Parliament and then subsidiary legislations such as the Legal Profession (Professional Conduct and Etiquette) Rules.
The Attorney General is the only person empowered by the Constitution, under Article 88, to prosecute all offences in the name of the Republic. The AG may however delegate this prosecutorial power to other authority to exercise in accordance with law.
The AG is not bound to explain to anyone his strategy in prosecuting cases including his decision to discontinue any prosecution such as the filing of a nolle prosequi. In fact, the AG can even decide to turn an accused person into a prosecution witness for the purpose of securing the prosecution of other accused persons [who are the principal actors] in respect of the subject matter.
It is for this reason that it has been argued by seasoned lawyers that the AG, who derived his authority directly from Article 88 of the Constitution is not subject to the Professional Etiquette Rules (LI 2424) of the General Legal Council, which is an ordinary subsidiary legislation.
Indeed, Kwaku Y. Paintsil, a senior lawyer and notary public, disclosed on Metro TV Good Afternoon Ghana show on Wednesday, 29 May 2024, that, he once petitioned the GLC to look into the “unprofessional conduct” of a senior State Attorney but the GLC declined to hear the case on jurisdictional grounds.
So, if State Attorneys who derive their authority from the Attorney General, are not subject to the disciplinary jurisdiction of the GLC, how can the Attorney General himself who derives his authority directly from the Constitution be subject to the GLC’s ethical rules and disciplinary jurisdiction?
The available sanctions that can be imposed on a lawyer who breaches the GLC’s ethical rules include suspension for a stated period or debarring the lawyer from practicing by withdrawing his solicitor’s license.
However, the position of the law is that State Attorneys don’t need solicitor’s license to practice law in the country. So, it is understandable if the GLC declines jurisdiction in enforcing the ethical rules on State Attorneys.
Even if we were to assume without admitting that the ethical Rules are binding on the AG, and therefore, the AG was not entitled to engage an accused person in the absence of his lawyer, it is submitted that at the time the AG engaged Richard Jakpa, he was not represented by any lawyer on record. He had earlier informed the court that he was changing his lawyer.
As a matter of fact, before Jakpa engaged his current lawyer, Thaddeus Sory, he was previously represented by three different lawyers in the persons of Ekow Ampah Korsah, Reindorf Twumasi, and Thomas Aubyn. Note that per the Constitution, Article 19(1)(f), an accused person can decide not to even hire a lawyer.
Again, even if Jakpa had engaged a new lawyer, it can still be argued based on the foregoing legal authorities and constitutional principles that the AG, who is not subject to the ethical rules of the GLC, committed no wrong when he communicated with Jakpa without his lawyer. You cannot play politics and propaganda with the law.
The writer is Iddi Muhayu-Deen, ESQ, a member of the NPP national communication team
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