In December 2025, a lawyer walked into court and asked a question that goes to the heart of Ghana’s anti-corruption project: can the Office of the Special Prosecutor (OSP) prosecute anyone at all without the Attorney-General’s say-so? A High Court in Accra has since answered no, ordering the Attorney-General (AG) to take over all prosecutions currently being run by the OSP. The matter now appears destined for the Supreme Court.
The OSP, established under Act 959 of 2017, was a landmark reform—an independent body designed to investigate and prosecute corruption free from political interference. But this essay argues that its independent prosecutorial powers cannot survive constitutional scrutiny. Article 88 of the 1992 Constitution vests prosecutorial authority exclusively in the AG, and Act 959, in granting the OSP a parallel power, oversteps what Parliament was constitutionally empowered to do.
Challenging the OSP
In late 2025, Ghanaian lawyer Noah Ephraem Tetteh Adamtey filed suit against the Attorney-General, challenging the independence granted to the Office of the Special Prosecutor in the investigation and prosecution of corruption and corruption-related offences. Local reporting from The 1957 News described Adamtey as a private citizen striving to protect Ghana’s democratic institutions and constitutional order.
In his lawsuit, Adamtey avers that the prosecutorial authority is vested exclusively in the Attorney-General and that the current arrangement is inconsistent with Articles 1(2), 88, 93(2) and 296 of the 1992 Constitution of Ghana.
As it stands, a High Court in Accra has ruled that the OSP cannot initiate criminal prosecutions without authorisation or approval from the Attorney-General and it has ordered the AG to take over all prosecutions by the OSP until prosecutorial power is granted.
Constitutional supremacy and the rule of law
The starting point is the supremacy clause of the 1992 Constitution. Article 1(2) provides that the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. This provision ensures that Parliament cannot enact any legislation pursuant to Article 93(2) that undermines constitutional provisions. Consequently, Act 959 must be interpreted subject to the Constitution.
In the famous case of New Patriotic Party (NPP) v Attorney-General (31st December case), Amua-Sekyi JSC stated, “as the fundamental or basic law, the Constitution, 1992 controls all legislation and determines their validity.” Additionally, Hans Kelsen in Pure Theory of Law puts the Constitution as the grundnorm which is the measuring rod for determining the validity of other norms. Applying Kelsen’s framework to Ghana, the 1992 Constitution functions as the grundnorm against which the validity of all other legal instruments—including Act 959—must be measured.
Additionally, in Sam v Attorney-General (No. 2), the Supreme Court declared the 1992 Constitution to be the highest law of the land by striking section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326), which sought to oust the jurisdiction (civil and criminal) of the courts.
The exclusive authority of the Attorney-General
The Constitution states without ambiguity in its allocation of prosecutorial powers in Article 88(3) that the Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. This provision is unequivocal. It centralizes prosecutorial authority in the AG, making the office the sole constitutional officer delegated to initiate and conduct prosecutions on behalf of the State.
By granting the OSP independent prosecutorial powers, Parliament has effectively created a parallel prosecutorial authority. This undermines the constitutional design and violates the principle of exclusivity and division of labour enshrined in Article 88. The OSP may investigate corruption and prepare dockets, but the initiation and conduct of prosecution must remain in the authority of the AG.
Ultra vires legislation
Parliament’s powers are not unlimited. While it can establish institutions to strengthen governance, it cannot legislate beyond the Constitution. Act 959 is internally inconsistent on this point. While Section 4(2) requires the OSP to obtain authorisation from the Attorney-General before initiating prosecutions, other operative provisions of the Act confer independent prosecutorial capacity on the OSP, creating an ambiguity that Parliament should not have left unresolved — and which courts must resolve in favour of the Constitution.
Though predating the 1992 Constitution, in Tuffuor v Attorney-General, the Court emphasized that Parliament cannot enact laws that are not in tandem with constitutional provisions. Applying this principle, any statutory grant of independent prosecutorial power to the OSP must be declared void.
Furthermore, Article 88 found under Chapter 8 of the 1992 Constitution is an entrenched provision provided under Article 290(1)(f). Article 290 goes ahead to state the constitutional procedure for the amendment of an entrenched provision leading to the President assenting to it. It can be argued that parts of the Act 959 seeks to amend Article 88 with the constitutional procedure not adhered to.
Coherence in criminal justice
The AG’s monopoly over prosecution is not arbitrary; it is a safeguard against fragmentation of prosecutorial authority. Criminal justice policy requires coherence, consistency, and central oversight. If specialised institutions like the OSP could prosecute independently, this would be contrary to Article 88(4) which states that all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law. This would make Ghana risk proliferation of prosecutorial agencies, each with conflicting mandates and strategies.
Such fragmentation would undermine the coherence of criminal justice policy, leading to duplication, inconsistency, and potential abuse of prosecutorial discretion. The AG’s function ensures that prosecutions are conducted within a unified framework, balancing public interest, resource allocation, and constitutional safeguard.
Comparative jurisprudence
A comparative analysis reinforces the Attorney-General’s stance. In the United Kingdom, the Crown Prosecution Service operates under the Prosecution of Offences Act 1985, which places it under the superintendence of the Attorney-General. Specialised investigative bodies such as the Serious Fraud Office may conduct their own prosecutions, but these remain subject to the Attorney-General’s oversight and consent powers in serious cases. The structural principle—that prosecutorial authority is ultimately centralised—holds even where operational flexibility exists.
Similarly, in Nigeria, anti-corruption agencies such as the Economic and Financial Crimes Commission (EFCC) investigate corruption, but prosecutions are subject to the Attorney-General’s oversight. This model ensures that prosecutorial powers remain centralized, preserving accountability and coherence.
As Ghana’s constitutional framework allows for the mirroring of common law jurisdictions, the AG’s exclusive role in prosecutions is consistent with common law practice, reinforcing the argument that the OSP’s independent prosecutorial powers are unconstitutional. The OSP can still play a vital role in investigating corruption and preparing cases for prosecution. However, to ensure constitutional compliance, prosecutions must be initiated under the AG’s authority.
Counter arguments
The Attorney-General could alternatively have argued that, pursuant to section 13 of the Interpretation Act, 2009 (Act 792), the long title of an enactment may serve as an interpretive aid. The long title of Act 959 expressly mandates the Office of the Special Prosecutor (OSP) to investigate cases of alleged or suspected corruption and corruption-related offences, and to prosecute such offences on the authority of the Attorney General. Read in this light, the functions of the OSP can be interpreted in conjunction with the long title of Act 959 to mean that the OSP’s prosecutorial duties are exercised only upon authorisation from the Attorney General.
Also, private legal practitioner, Ace Ankomah had shared his view via a LinkedIn post arguing that “at the suit of the Attorney-General ” in Article 88(4) could also mean “on behalf of ” and not only mean “brought by.” Still under Article 88(4), “in accordance with any law”, he defined law referring to Article 11 which considers Acts of Parliament and subsidiary legislations as sources of law or law. He further added that the AG “embedded” prosecutorial powers in the OSP under subsidiary legislations, Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374). Hence, the prosecutorial power of the OSP is firmly grounded in the Constitution, 1992.
Conclusion
As the foregoing analysis demonstrates, the case that the OSP’s independent prosecutorial powers are unconstitutional rests on firm constitutional ground. Article 88(3) vests exclusive prosecutorial authority in the AG, and Article 1(2) renders void any law inconsistent with this provision. Parliament, by enacting Act 959, exceeded its constitutional mandate.
The OSP may investigate corruption and prepare dockets, but prosecutions must be initiated under the AG’s authority. Allowing the OSP to prosecute independently undermines constitutional supremacy, disrupts accountability mechanisms, and risks fragmenting criminal justice policy.
Ultimately, the Supreme Court should carefully adjudicate this matter especially with the High Court decision ordering the AG take over the prosecutorial power from the OSP which could mean that in practice, the OSP acts without the authorisation of the Attorney-General. This outcome preserves the coherence of Ghana’s criminal justice system while ensuring that anti-corruption efforts remain constitutionally compliant.
Cecilia Akoko Attiogbe Atayi is a third-year student at the University of Cape Coast Faculty of Law (GH) and an Assistant Editor at JURIST News.
