Accra: The authority of the Attorney General (AG) versus the powers of the Office of the Special Prosecutor (OSP) in Ghana is currently under legal examination. Article 88(3) of the Constitution of the Republic of Ghana, 1992, assigns the AG the responsibility for initiating and conducting all criminal prosecutions. This was reinforced by the Supreme Court in the case of Republic v. High Court Accra, Ex parte Attorney-General (Delta Foods Limited, Interested Party).
According to Ghana Web, a lawsuit (Suit No. J1/3/2026) filed by Mr. Noah Ephraem Tetteh Adamtey in the Supreme Court challenges the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959). The plaintiff seeks to void Sections 3(3) and 4 of Act 959, citing breaches of Articles 88, 93(2), and 296 of the 1992 Constitution. While Article 88(4) allows the AG to "authorize" other state officials to initiate prosecutions, the specifics of this authorization remain a matter of debate.
The Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the Law Officers Decree (1974, NRCD 279), and Executive Instrument (E.I) 74 (1985) collectively empower the police to conduct prosecutions. The Ghana Revenue Authority (GRA) and the National Petroleum Authority (NPA) also hold prosecutorial powers under specific legislative acts, with the Attorney General's authorization.
The Economic and Organized Crime Office (EOCO) is similarly empowered under the EOCO Act, 2010 (Act 804), to prosecute serious offenses with the Attorney General's consent. The establishment of the OSP under Act 959, authorized to investigate and prosecute corruption-related offenses, aligns with the constitutional provision allowing the AG to delegate prosecutorial powers.
Despite concerns over potential constitutional conflicts, the AG facilitated the creation of the OSP law and appointed its personnel. The collaboration between the AG and the OSP suggests intentional authorization for the OSP to initiate prosecutions, akin to the powers granted to other bodies like the police, GRA, NPA, and EOCO.
The legal scrutiny surrounding the OSP law reflects broader questions about the constitutional framework governing prosecutorial powers in Ghana. The potential repercussions of deeming the OSP unconstitutional could disrupt the prosecutorial landscape, affecting other state bodies with similar powers. Advocates argue for the necessity of the OSP to address cases involving politically sensitive figures, a role the AG's office may opt to distance itself from.
As debates continue, the OSP law seeks to establish a secure position within Ghana's legal framework, paralleling international practices such as the United States' Special Counsel statute. The discourse emphasizes the need for laws to serve their intended purpose, as highlighted by Professor Justice Date-Bah.