Kissi Agyebeng
The Supreme Court (SC) yesterday dismissed a suit challenging the constitutionality of the Act establishing the Office of the Special Prosecutor (OSP), and the Office’s power to initiate criminal proceedings without the authorisation of the Attorney General.
A seven-member panel of the court comprising Chief Justice Paul Baffoe-Bonnie (presiding) and Justices Gabriel Pwamang, Avril Lovelace Johnson, Emmanuel Yonny Kulendi, Ernest Gaewu, Senyo Dzamefe and Gbiel Simon Suurbaareh, in a unanimous decision held that the OSP Act is not inconsistent with or in contravention of the 1992 Constitution.
The court also held that the OSP has power to initiate and prosecute corruption and corruption related offences but added that the Attorney General has the power to enter a nolle prosequi in the OSP’s cases, subject to Article 296 of the Constitution which regulates the exercise of discretionary power.
Again, the court held that all prosecutions initiated by the OSP and all convictions secured by the Office as well as freezing orders, seizures and other orders and proceedings conducted by the OSP from its inception are valid.
The Supreme Court, therefore, held that any order of a lower court which is inconsistent with the interpretation given in the judgment is nullified.
This order affects the decision of a High Court in Accra which set aside all convictions secured by the OSP and directed the AG to take over all prosecutions initiated by the Office until it receives the authorisation of the Attorney General.
Writ
A private citizen, Ephraem Tetteh Adamptey, had filed a writ at the Supreme Court challenging the constitutionality of the Act establishing the Office of the Special Prosecutor, especially the provision that mandated the Attorney General to delegate its prosecutorial powers to the OSP.
Section 4(2) of the OSP Act mandates the Attorney General to authorise the OSP to initiate the prosecution of corruption and related offences.
Adamptey was seeking among others, a declaration that on a true and proper interpretation of Articles 1(2), 88, 93(2), and 296 of the 1992 Constitution, prosecutorial authority in Ghana is vested exclusively in the Attorney General and cannot be exercised independently of, or in parallel with, the Attorney General.
He was also seeking declaration that the OSP Act, to the extent that it purports to confer original, autonomous, or insulated prosecutorial authority on the OSP is inconsistent with and in contravention of Articles 1(2), 88(3) – (4), 93(2), and 296 of the Constitution and is therefore null, void and of no effect.
Again, he wanted a declaration that Parliament acted ultra vires its legislative authority under Article 93(2) in purporting, through Act 959, to compel a permanent delegation of the Attorney General’s prosecutorial powers to the Office of the Special Prosecutor.
The plaintiff was, therefore, asking the Supreme Court to strike down or server the provisions of Act 959 that “confer autonomous prosecutorial authority on the Office of the Special Prosecutor or insulate it from the Attorney General’s constitutional control.”
AG’s Position
The Attorney General subtly agreed with the plaintiff as Deputy Attorney General, Dr. Justice Srem-Sai, in response to the writ, urged the apex court to declare that Parliament has, by an ordinary legislation, varied the constitutional prosecutorial powers of the Attorney General, thereby acting in excess of its powers.
He further argued that the prosecutorial powers of the Republic vests in the Attorney General alone, in respect of all crimes.
Again, the Deputy Attorney General argues that besides compelling the Attorney General to delegate his prosecutorial powers, the OSP Act varies the Attorney General’s prosecutorial power in many ways, including “the donation of the power to the Office also divests the Attorney General of his control over the Office’s use of the power.”
Another argument is that prosecutorial power may not be delegated to a juridical person but an actual human being.
The Deputy AG argues that the OSP Act did not make the Special Prosecutor (a human being) the recipient of the prosecutorial power but rather “it purports to make the ‘Office’ – an artificial person – the recipient of the purportedly delegated prosecutorial power.”
BY Gibril Abdul Razak