Ghana's Supreme Court has definitively ruled that the Attorney General retains ultimate prosecutorial authority over the Office of the Special Prosecutor (OSP). This decision clarifies the constitutional limits of the OSP, affirming its role in combating corruption while ensuring all state prosecutions remain under the Attorney General's purview.
The seven-member Supreme Court panel unanimously upheld the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) on Wednesday, July 29. The Court ruled that Parliament acted within its powers to establish the OSP for investigating and prosecuting corruption-related offences. However, the ruling was emphatic that the Attorney General holds the constitutional power to take over, continue, or discontinue any case initiated by the OSP, including through a nolle prosequi.
This ruling is significant for Ghana's legal and governance landscape, particularly concerning the fight against corruption. It reinforces the constitutional framework established by Article 88 of the 1992 Constitution, which vests all prosecution powers in the Attorney General. The decision aims to provide clarity and prevent potential jurisdictional conflicts between the OSP and the Attorney General's office, which have been subjects of public debate since the OSP's inception in 2017.
Legal practitioner George Anti described the Supreme Court's ruling as a "very sound ruling." Speaking on Nhyira FM’s “Kro Yi Mu Nsem” on Friday, July 31, Mr. Anti explained that the OSP's authority to prosecute does not make it independent of the Attorney General. Instead, the OSP operates as an agent of the Attorney General, balancing the need for independent corruption investigations with constitutional accountability.
Mr. Anti further elaborated that the framers of the 1992 Constitution did not envision a completely independent prosecutorial body operating outside the Attorney General's office. He stated that the Attorney General can delegate prosecutorial powers to entities like the OSP but can also withdraw those powers at any time. This arrangement, he noted, will remain until an amendment is made to Article 88 of the 1992 Constitution, which explicitly states that all criminal prosecutions in the country shall be initiated at the instance of the Attorney General.
The implications of this ruling are far-reaching for governance and the anti-corruption agenda in Ghana. The OSP can continue its vital work of investigating and prosecuting high-profile corruption cases, but it will do so with a clear understanding of its operational boundaries under the Attorney General's oversight. This clarity is expected to streamline processes and reduce legal ambiguities that could hinder anti-corruption efforts.
Decision-makers and the public will now watch how this clarified relationship impacts ongoing and future corruption cases. The ruling ensures that while specialized bodies like the OSP are empowered to tackle specific issues, the ultimate constitutional authority for state prosecutions remains centralized. This balance is crucial for maintaining legal consistency and accountability within Ghana's justice system.
The Supreme Court's decision also touches upon broader principles of constitutional interpretation and the separation of powers. By affirming the Attorney General's role, the Court has reinforced the foundational legal principles governing prosecution in Ghana. This legal certainty is vital for investor confidence and the overall stability of the country's legal framework.