Kissi Agyebeng
The Supreme Court (SC) has set July 29, 2026 to deliver its judgment in a suit filed by a private citizen, Noah Ephraem Tetteh Adamptey, challenging the constitutionality of the Act establishing the Office of the Special Prosecutor (OSP), especially the provision that mandated the Attorney General to delegate its prosecutorial powers to the OSP.
A seven-member panel of the court made up of Chief Justice Paul Baffoe-Bonnie (presiding) and Justices Gabriel Pwamang, Avril Lovelace Johnson, Yonny Kulendi, Ernest Gaewu, Senyo Dzamefe and Gbiel Simon Suurbaareh has given the plaintiff one week within which to file any other arguments he wished to file.
The Attorney General and a coalition of 14 civil society organisations (CSOs) which entered the matter as amicus curiae (Friend of the Court) were given seven days after service to respond. The court warned that service after the given days would not be countenanced.
Suit
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 is seeking among others, a declaration that on a true and proper interpretation of the 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 is 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 wants 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 is, 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 (AG) appears to agree with the plaintiff as Deputy Attorney General, Dr. Justice Srem-Sai is asking 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 argues that the prosecutorial powers of the Republic vests in the Attorney General alone, in respect of all crimes.
He also argues that the OSP Act does compel the Attorney General to authorise the OSP to prosecute offences, emphasising that “Parliament may not compel the Attorney General to authorise a person to prosecute an offence.”
“By compelling the Attorney General to ‘authorise’ the Office to initiate and conduct prosecutions, Parliament has, in effect, invariably taken over the discretionary of power of the Attorney General under Article 88(4) and has exercised the same. This compulsion is inconsistent with the discretion which the Constitution grants, exclusively, to the Attorney General.”
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.”
“Accordingly, we pray your Lordships to adjudge and declare that Parliament has, to the extent of purporting to vary the prosecutorial power of the Attorney General, acted in excess of its powers,” Dr. Justice Srem-Sai adds.
BY Gibril Abdul Razak