The Attorney-General is urging the Supreme Court to declare that key provisions of the Office of the Special Prosecutor Act, 2017 (Act 959) are unconstitutional.
In a Suit filed by private citizen Noah Ephraem Tetteh Adamtey, which names the Attorney-General as a defendant, the plaintiff is challenging the independence granted to the Office of the Special Prosecutor (OSP) in the investigation and prosecution of corruption-related offences.
The Attorney-General, in his draft Statement of Case filed in response to the suit, has largely aligned with the plaintiff’s position. The A-G argues that Parliament acted in excess of its powers when it passed Act 959, an ordinary legislation, purporting to vary the exclusive prosecutorial authority vested in the Attorney-General under Article 88 of the 1992 Constitution.
According to the Attorney-General’s filing, Parliament cannot, through ordinary legislation, create an office with autonomous or insulated prosecutorial powers independent of the Attorney-General. The Attorney-General is therefore praying the Supreme Court to make two key declarations:
1. That Parliament has, by ordinary legislation, varied the constitutional prosecutorial powers of the Attorney-General.
2. That by so doing, Parliament acted in excess of its powers under the Constitution.
The Attorney-General is also seeking consequential orders that the Court may deem fit to give effect to these declarations, including striking down or severing the offending provisions of Act 959 that confer original, autonomous, or insulated prosecutorial authority on the OSP.
The Office of the Special Prosecutor was established by Act 959 in 2017 and received presidential assent in January 2018. The Act empowers the OSP to investigate specific cases of corruption and corruption-related offences involving public officers and politically exposed persons, and to prosecute such offences.
However, Section 4 of the Act grants the Office of the Special Prosecutor (OSP) a measure of operational independence by providing that the Office shall not be subject to the direction or control of any person or authority, except as otherwise provided in the Constitution. The Act further states that the OSP shall prosecute corruption and corruption-related offences on the authority of the Attorney-General. In practice, however, the OSP has been initiating and conducting investigations and prosecutions since it became operational in 2018, exercising its prosecutorial functions without obtaining fresh authorisation from the Attorney-General in every case.
The plaintiff, Noah Ephraem Tetteh Adamtey, who describes himself as a citizen interested in protecting Ghana’s democracy and constitutional order, argues that this arrangement is inconsistent with Articles 1(2), 88, 93(2), and 296 of the 1992 Constitution. He contends that prosecutorial authority is vested exclusively in the Attorney-General and cannot be exercised independently or in parallel without a constitutional amendment under Articles 289–290.
Procedurally, the Attorney-General has filed a Motion on Notice seeking leave of the Court for an extension of time to file his full Statement of Case. The motion, supported by an affidavit sworn by Mary Yeboah, a Secretary at the Office of the Attorney-General, cites unavoidable administrative procedures and internal consultations as the reason for the delay.
