The Supreme Court has unanimously ruled that the Office of the Special Prosecutor (OSP) has the legal authority to investigate and prosecute corruption-related offences independently, but the Attorney-General (AG) retains the constitutional power to discontinue such prosecutions by entering a nolle prosequi.
The landmark decision settles a constitutional dispute over the prosecutorial powers of the OSP and clarifies the relationship between the anti-corruption agency and the Attorney-General’s office.
A seven-member panel of the apex court, chaired by Chief Justice Paul Baffoe-Bonnie, dismissed a suit filed by private legal practitioner Noah Adamtey, who challenged the constitutionality of provisions in the Office of the Special Prosecutor Act, 2017 (Act 959).
Mr Adamtey said that Article 88 of the 1992 Constitution vests the exclusive authority to prosecute criminal offences in the Attorney-General. According to him, Parliament exceeded its powers when it enacted Sections 3(3) and 4 of Act 959, which grant the OSP independent prosecutorial authority.
He asked the court to declare those provisions unconstitutional on the grounds that they were inconsistent with the Constitution.
However, the Supreme Court rejected the challenge, leaving the law intact and affirming the OSP’s independent mandate to investigate and prosecute corruption and corruption-related offences without first obtaining approval from the Attorney-General.
While upholding the OSP’s prosecutorial independence, the court also made it clear that the Attorney-General retains the constitutional authority to intervene in criminal proceedings by entering a nolle prosequi, a legal process used to formally discontinue a prosecution.
The ruling means that although the OSP can commence and conduct criminal prosecutions independently, the Attorney-General still has the final constitutional authority to terminate those cases where deemed necessary.
The judgment also went against the position taken by the Attorney-General’s office during the proceedings.
Deputy Attorney-General Justice Srem-Sai had argued before the court that prosecutorial authority under the Constitution belongs exclusively to the Attorney-General, and that any power exercised by the Office of the Special Prosecutor derives from the Attorney-General’s constitutional mandate.
The Supreme Court, however, unanimously dismissed the suit, effectively affirming that the Office of the Special Prosecutor Act is consistent with the Constitution and that Parliament acted within its powers in granting the OSP independent prosecutorial authority.
The ruling is expected to strengthen the legal foundation of the Office of the Special Prosecutor, which was established to lead Ghana’s fight against corruption and has been responsible for investigating and prosecuting several high-profile corruption-related cases.
At the same time, the decision reinforces the Attorney-General’s constitutional oversight of criminal prosecutions by confirming the power to discontinue cases initiated by the Special Prosecutor through a nolle prosequi.
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