OSP, Article 88, and the Perils of Literalism

I. Introduction: When the State Concedes Too Much

The pending suit by Noah Adamtey presents a foundational constitutional question: who holds prosecutorial power in Ghana, and how may it be exercised?

What is striking, however, is not merely the Plaintiff’s claim, but the Attorney-General’s draft statement of case dated 8 April 2026. In a rare and consequential move, the State appears to concede the central premise of the challenge. It accepts that the Office of the Special Prosecutor, as structured under the Office of the Special Prosecutor Act, 2017 (Act 959), is constitutionally suspect.

This commentary argues that both the Plaintiff’s position and the Attorney-General’s draft statement of case rest on an unduly literal reading of Article 88. That reading is inconsistent with the Constitution’s structure, its purpose, and the practical demands of modern governance.

II. Adamtey’s Case: The Logic of Exclusivity

Adamtey’s argument is doctrinally neat and intuitively appealing. He contends that: Article 88 vests exclusive prosecutorial authority in the Attorney-General; Any prosecution must be conducted either by the Attorney-General or by a person acting strictly under his control and authorisation; Parliament cannot create a body that exercises parallel or autonomous prosecutorial power.

On this reasoning, provisions of Act 959 that insulate the Office of the Special Prosecutor from the Attorney-General’s direction, and that permit it to initiate and conduct prosecutions, are unconstitutional unless supported by a formal constitutional amendment (i.e., a referendum since article 88 is an entrenched provision).

This is, in essence, a monopoly theory of prosecution.

III. The Attorney-General’s Draft Statement of Case: A Doctrinal Convergence

The Attorney-General’s draft Statement of Case adopts Adamtey’s position and advances six distinct propositions:

1. Prosecutorial power vests exclusively in the Attorney-General.

2. Section 4(2) compels the Attorney-General to authorise prosecutions.

3. Such compulsion violates constitutional discretion.

4. Parliament cannot compel the exercise of executive power.

5. The Act substantially varies the Attorney-General’s powers.

6. Prosecutorial power cannot be delegated to a juridical person.

The argument is reinforced by appeals to constitutional history, separation of powers, and prosecutorial control tools such as plea bargaining and nolle prosequi.

IV. Exclusivity and the Misreading of Article 88

The Attorney-General’s central claim is exclusivity. The claim is anchored in article 88(3) and (4). The article provides as follows: "(3 The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. (4) 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."

The claim relies on the word “all". In the AG's eyes, "the use of all leaves no doubt that no prosecutorial power is left for another person to exercise."

That argument fails on the face of Article 88(4), which expressly allows prosecution by “any person authorised by him in accordance with any law.” This language authorises Parliament to design legal frameworks through which prosecutorial power is exercised.

The Attorney-General then takes us on a tour of constitutional history. We are reminded that earlier constitutions permitted private prosecutions, while the 1979 and 1992 Constitutions centralised prosecutorial power in the Attorney-General.

All true. But it proves too little.
Eliminating private prosecution is not the same as prohibiting institutional design. The framers closed the door to unregulated private actors. They did not close the door to Parliament structuring how public prosecution is carried out.

The move to centralisation explains why accountability rests with the Attorney-General. It does not require that all prosecutorial functions be performed personally by him. Nor does it prohibit institutional structuring of that power through law.

Exclusivity in Article 88 is therefore about ultimate responsibility, while Article 88(4) expressly permits that responsibility to be exercised through persons authorized in accordance with any law. Exclusivity in Article 88 is not about exclusive personal execution.

V. Compulsion and the Mischaracterization of Section 4(2)

The Attorney-General argues that the use of “shall” in section 4(2) of the OSP Act compels delegation and eliminates discretion. Therefore, the Act is unconstitutional.

This is overstated.
Section 4(2) provides: “Subject to clause (4) of article 88 of the Constitution, the Office shall, for the purposes of this Act, be authorised by the Attorney-General to initiate and conduct the prosecution of corruption and corruption-related offences.”

That opening clause matters. Section 4(2) is expressly made subject to Article 88(4), which provides that prosecutions may be undertaken by persons authorized by the Attorney-General in accordance with any law.

That phrase, “any law,” is constitutional permission for Parliament to structure how authorization operates. Section 4(2) is an exercise of that permission, not a violation of it.

Properly understood, Section 4(2) does not compel the Attorney-General to prosecute any particular case, nor does it dictate how prosecutorial judgment must be exercised. It does something more modest and more coherent. It establishes a standing statutory framework through which authorization operates in a defined class of cases. It structures the system, not the decision.

In other words, it replaces ad hoc, case-by-case permission with a legally structured form of authorization.

That is not the elimination of discretion. It is the organisation of discretion.

The Attorney-General’s core constitutional powers remain intact:

He retains the power to enter nolle prosequi, which is the ultimate control over prosecution. He retains constitutional responsibility for prosecutions undertaken in the name of the Republic. He operates within a framework in which Parliament structures the mode of authorization, not the outcome of individual prosecutorial decisions.

What Section 4(2) removes is not discretion, but administrative arbitrariness. It prevents a system in which prosecutorial authority depends on repeated, discretionary approvals for each case.

To describe this as unconstitutional compulsion is to confuse structure with coercion.

The provision does not take power from the Attorney-General. It channels how that power is exercised in a specific institutional setting.

It structures discretion. It does not eliminate it. And it does so precisely in the manner contemplated by Article 88(4), which permits authorization in accordance with any law.

VI. Separation of Powers and the “No Compulsion” Argument

The Attorney-General argues that Parliament cannot compel the exercise of executive discretion. That proposition is correct in the abstract but misapplied here.

Parliament is not directing the Attorney-General to prosecute a specific case. It is establishing a statutory framework for how prosecutorial authority is exercised in a defined category of offences.

Legislation routinely structures executive discretion. Administrative law is built on this principle.

The question is not whether Parliament can influence executive action. The question is whether it has altered the constitutional allocation of power. It has not.

VII. Delegation to a Juridical Person
The Attorney-General argues that prosecutorial power cannot be delegated to a juridical person. This is untenable.

The Constitution does not distinguish between natural and juridical persons in the phrase “any person authorised by him in accordance with any law.” The Office of the Special Prosecutor operates through human agents. It is an institutional vehicle, not an abstract entity exercising power in isolation.

If this argument were accepted, it would invalidate the Attorney-General’s own department, public prosecution services generally,

and any institutional form of delegated authority.

Delegation in modern governance is necessarily institutional.

VIII. The “Variation” Argument
The Attorney-General contends that Act 959 varies his constitutional powers. This confuses variation with implementation.

A variation would alter the substance of Article 88 by removing or reallocating authority. Act 959 does neither. It preserves the Attorney-General’s constitutional position while organising how prosecutorial functions are carried out in corruption cases.

The claim that the Attorney-General is no longer responsible for all prosecutions is incorrect. Responsibility remains. Execution is structured.

IX. Prosecutorial Control and Plea Bargaining

The Attorney-General points to plea bargaining and nolle prosequi as evidence that control has been lost. This argument misunderstands institutional design.

Control in a constitutional system does not require direct involvement in every decision. It requires the existence of ultimate authority and the ability to intervene where necessary.

The Constitution does not mandate that every prosecutorial tool be exercised personally by the Attorney-General. It permits the creation of specialised bodies with defined powers, subject to the broader constitutional framework.

X. Appointment and Source of Authority
Under the broader claim that the OSP Act varies the Attorney-General’s prosecutorial powers, the Attorney-General advances a more specific argument about appointment and control.

He contends that because the Special Prosecutor is appointed by the President, rather than by the Attorney-General, the prosecutorial power exercised by the Office is no longer truly derived from the Attorney-General. In his view, this amounts to a transfer or “donation” of prosecutorial authority outside the constitutional chain anchored in Article 88.

That argument does not hold.
It rests on a basic confusion between appointment and source of authority.

The Constitution does not require that every person exercising delegated prosecutorial power be appointed by the Attorney-General. Article 88(4) speaks of persons authorised by the Attorney-General in accordance with any law. It does not prescribe who must appoint those persons or the institutional form through which that authority is exercised.

In modern constitutional systems, appointment and authority routinely travel on different tracks. Many officials exercise statutory or constitutional functions without being personally appointed by the officeholder who bears ultimate responsibility for those functions. Police prosecutors and state attorneys, including those within the Attorney-General’s own department, conduct prosecutions on behalf of the Republic, even though they are not personally appointed by the Attorney-General.

What matters, therefore, is not who appoints the Special Prosecutor. What matters is whether the authority exercised by the Office remains legally grounded in the constitutional framework that vests prosecutorial responsibility in the Attorney-General.

It does.
Prosecutions undertaken by the Office are conducted in the name of the Republic and within a statutory scheme expressly tied to Article 88. The Attorney-General’s ultimate constitutional responsibility is neither displaced nor transferred.

The suggestion that presidential appointment converts delegation into an unconstitutional transfer of power rests on a false premise.

Authority does not flow from who appoints. It flows from the Constitution and the law.

XI. The Structural Contradiction
The Attorney-General acknowledges that the Office has conducted prosecutions for years without express authorisation.

This creates a fundamental inconsistency.
If the Attorney-General’s interpretation is correct, then a significant body of prosecutions is constitutionally defective. If those prosecutions are valid, then the interpretation must be wrong.

Courts are reluctant to adopt interpretations that produce widespread invalidity absent clear constitutional necessity.

XII. The Broader Constitutional Stakes
The logical implication of the Attorney-General’s position is stark.

Only the Attorney-General may authorise prosecutions, including politically sensitive corruption cases. Any attempt to create an independent prosecutorial body would require constitutional amendment, through referendum.

This conclusion sits uneasily with Article 88(4), which expressly permits authorisation in accordance with law.

It converts a provision designed to ensure accountability into a mechanism that entrenches centralised control.

XIII. Toward a Coherent Resolution
A constitutionally sound approach would affirm that the Attorney-General retains ultimate prosecutorial authority; recognise Parliament’s power to structure how that authority is exercised; interpret Section 4(2) as a framework for authorization; accept institutional delegation as consistent with modern governance; and preserve the functional independence of the Office within the constitutional order.

XIV. Conclusion: Fidelity Requires Judgment
The Attorney-General’s draft statement of case is careful and sophisticated, but it rests on a narrow interpretive method.

A purposive and objective reading of Article 88 shows that the Constitution accommodates institutional design. It does not prohibit it.

The issue is not whether the Attorney-General holds prosecutorial authority. The issue is how that authority is exercised in a modern constitutional state.

The Constitution permits a system in which that authority is exercised through structured, independent institutions.

That conclusion better reflects constitutional purpose, institutional reality, and the demands of accountable governance.