Deputy Attorney-General and Minister for Justice, Dr. Justice Srem-Sai, has confirmed that the Office of the Special Prosecutor (OSP) was established through ordinary legislation. This process occurred under Article 106 of the 1992 Constitution. It did not involve a constitutional amendment procedure.
Dr. Srem-Sai stated that the OSP Act is an ordinary Act of Parliament. Therefore, it cannot change the constitutional powers of the Attorney-General. It also cannot create an independent prosecutorial authority outside the Constitution's framework. This clarification comes as the Supreme Court prepares to rule on the OSP's prosecutorial powers.
This legal interpretation is crucial for Ghana's anti-corruption efforts and the balance of power within its legal system. The OSP's establishment aimed to strengthen the fight against corruption. However, its operational independence has been a subject of debate. This debate impacts public confidence in state institutions and the rule of law.
Speaking on JoyNews, Dr. Srem-Sai explained that Parliament followed the ordinary legislative procedure when passing the OSP Act. He emphasized that the OSP Act is ordinary legislation passed under Article 106. It was not passed under the constitutional amendment procedures. This means the Act cannot be interpreted as having amended Article 88 of the Constitution. Article 88 grants the Attorney-General authority over public prosecutions.
The Supreme Court will deliver its judgment on July 29, 2026. This ruling will address a suit challenging the prosecutorial powers of the OSP. Private legal practitioner Noah Adamtey initiated the case. He argues that the OSP Act, 2017 (Act 959), unlawfully grants the OSP independent prosecutorial authority. Mr. Adamtey seeks a declaration that certain provisions of the Act are inconsistent with Articles 1 (2), 88 (3) and (4), 93 (2), and 296 of the 1992 Constitution. He contends these provisions are therefore null and void.
Specifically, Mr. Adamtey argues that Sections 3 (3) and 4 of Act 959 violate the Constitution. These sections make the OSP independent of the Attorney-General in initiating, conducting, and terminating prosecutions. The Attorney-General, represented by Dr. Srem-Sai, maintains that Article 88 (3) vests prosecutorial authority solely in the Attorney-General. He argues that Parliament acted unconstitutionally by requiring the Attorney-General to delegate part of these powers to the OSP. This effectively limits the Attorney-General’s constitutional responsibility for prosecuting criminal offences.
In January, the Supreme Court rejected an application by the OSP to join the case as an interested party. The court ruled that the constitutional issues could be fully determined between the plaintiff and the Attorney-General. However, the court accepted an application from 14 civil society organizations to join the proceedings. These organizations, including Transparency International Ghana, CDD-Ghana, IMANI Africa, and the Ghana Anti-Corruption Coalition, argue they played a key role in the OSP's establishment. They believe their expertise can assist the court. Their intervention highlights the broader societal interest in the OSP's independence and its role in promoting accountability.
The upcoming Supreme Court decision will have significant implications for the OSP's future operations. It will clarify the extent of its prosecutorial independence. This ruling could redefine the landscape of anti-corruption efforts in Ghana. It will also impact the relationship between the OSP and the Attorney-General's office. Decision-makers and anti-corruption advocates will closely watch the judgment. The outcome will shape how Ghana tackles corruption cases moving forward.