Accra: The recent High Court decision indicating that the Office of the Special Prosecutor (OSP) needs fresh authorization from the Attorney-General (AG) for each prosecution has sparked significant debate. This ruling questions whether the OSP can independently prosecute corruption-related offences or if it must continually seek AG approval.
According to Ghana Web, this issue is central to Ghana's anti-corruption framework. The OSP was established to prosecute corruption without political influence. Suggesting it must repeatedly seek AG approval undermines its legislative purpose and public confidence in anti-corruption efforts.
A detailed examination of the 1992 Constitution, the Office of the Special Prosecutor Act, 2017 (Act 959), and related regulations confirms that the AG's authorization, as per Article 88(4) of the Constitution, has been granted through law and does not need case-by-case renewal.
The Constitution allows the AG to delegate prosecutorial powers, and this must be done "in accordance with any law." The AG cannot unilaterally enact such laws; this is the role of Parliament. The OSP was established by Parliament through Act 959, fulfilling the constitutional requirement.
The AG sponsored the OSP Bill, leading to Act 959, which mandates the OSP to prosecute corruption. The AG's actions, including sponsoring the OSP Regulations and nominating the Special Prosecutor, confirm this authorization. This conduct supports the notion that the AG has granted necessary authority to the OSP.
The principle of necessary implication in statutory interpretation also supports this view. The legislative intent was to create an independent body for anti-corruption prosecution, and requiring repeated AG approvals would contradict this purpose.
The Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), further confirm this authority. Regulation 11 explicitly grants prosecutorial discretion to the Special Prosecutor, satisfying even the strictest requirements for express authorization.
Requiring fresh AG approval for each prosecution would compromise the OSP's independence, invite political interference, delay prosecutions, and defeat Act 959's purpose. This was likely not the lawmakers' intention.
In conclusion, the constitutional requirement for AG authorization under Article 88(4) has been met through Act 959, L.I. 2374, the conduct of AGs, and the legislative intent behind the OSP's establishment. The authorization is a one-time grant, not a recurring requirement. Insisting otherwise misinterprets the Constitution, undermines Parliament's intent, and weakens Ghana's anti-corruption efforts. The OSP was created to act decisively, not to wait for perpetual clearance, and Ghanaians are urged to uphold this understanding in support of the country's anti-corruption framework.