The Supreme Court has unanimously upheld the constitutionality of the Office of the Special Prosecutor (OSP) Act, affirming the Special Prosecutor’s authority to independently investigate and prosecute corruption-related offences while ruling that the Attorney-General retains the constitutional power to discontinue prosecutions initiated by the Office.
The landmark decision, delivered on Wednesday, July 29, by a seven-member panel chaired by Chief Justice Paul Baffoe-Bonnie, settles a constitutional dispute over whether Parliament acted within its powers by granting the OSP independent prosecutorial authority under the Office of the Special Prosecutor Act, 2017 (Act 959).
The case was initiated by private legal practitioner Noah Adamtey, who argued that Article 88 of the 1992 Constitution vests prosecutorial authority exclusively in the Attorney-General. He contended that Parliament exceeded its constitutional mandate by establishing an independent prosecutorial body whose powers were insulated from the Attorney-General’s control.
Adamtey specifically sought to have Sections 3(3) and 4 of Act 959 declared unconstitutional, insisting that the OSP could only prosecute cases with the authority or supervision of the Attorney-General.
The Attorney-General’s Office supported the challenge. Deputy Attorney-General Justice Srem-Sai argued before the court that while prosecutorial authority may be delegated, the Constitution does not permit Parliament to permanently vest those powers in an independent institution outside the Attorney-General’s supervision without first amending the Constitution.
However, the apex court dismissed the suit in its entirety, upholding the validity of the OSP Act and confirming that the Office of the Special Prosecutor may independently initiate and prosecute criminal cases under its statutory mandate.
At the same time, the court clarified that the Attorney-General’s constitutional authority under Article 88 remains intact, meaning the Attorney-General may discontinue any prosecution commenced by the OSP.
During the proceedings, the Office of the Special Prosecutor sought to join the case as an interested party, but the Supreme Court declined the application, holding that the constitutional issues could adequately be determined between the plaintiff and the Attorney-General.
Several civil society organisations, including Transparency International Ghana and IMANI Africa, were, however, admitted as interested parties after arguing that they had played a significant role in advocating for the creation of the anti-corruption institution and had a direct interest in preserving its independence.
The ruling removes a major legal uncertainty that had hovered over the OSP’s operations in recent months.
Earlier this year, a High Court decision requiring the Special Prosecutor to obtain the Attorney-General’s approval before prosecuting criminal cases resulted in the suspension of the trial involving former Minister Mustapha Hamid pending the Supreme Court’s determination.
Despite the legal challenge, Special Prosecutor Kissi Agyebeng continued pursuing several high-profile corruption investigations, including proceedings involving former Finance Minister Ken Ofori-Atta, whom the OSP has repeatedly declared a fugitive.
The judgment is expected to reinforce the operational independence of the Office of the Special Prosecutor while reaffirming the Attorney-General’s constitutional oversight in relation to the discontinuance of criminal prosecutions.
