The Courts vs. OSP Law

Friends, like most of you, I have been thinking about the Special Prosecutor’s powers to initiate prosecutions in Ghana. Article 88(3) of the Constitution of the Republic of Ghana, 1992, clearly states that the Attorney General is the proper officer to initiate prosecutions in Ghana. “The AG is responsible for the initiation and conduct of all criminal prosecutions”. It was affirmed in Republic v. High Court Accra, Ex parte Attorney-General (Delta Foods Limited, Interested Party by the Supreme Court ruling.

The issue of the exclusive authority of the AG to initiate prosecution has been raised by Mr. Noah Ephraem Tetteh Adamtey in a lawsuit (Suit No. J1/3/2026) in the Supreme Court of Ghana. The plaintiff challenged the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), and sought to declare Sections 3(3) and 4 of the Act 959 void for breaches of Articles 88, 93(2), and 296 of the Constitution, 1992.

However, 88(4) states: “All offenses prosecuted in the name of the Republic of Ghana must be at the suit of the Attorney-General or authorized personnel”.

It seems clear that Article 88(4) contemplates instances in which another "officer or personnel" of the state may be "authorized" to exercise the attorney general's power to initiate and conduct prosecutions.

What is not clear to me is who has the power to ’'authorize" who to initiate prosecution on behalf of the AG? I assume it is the AG who can exercise the power to "authorize" another state official to act on his behalf as per 88(4). Indeed, the Criminal and Other Offences (Procedure) Act, 1960 (Act 30): authorizes the police in a "criminal procedure, including the power to arrest, search, and initiate proceedings”. Further, the Law Officers Decree (1974, NRCD 279), legally granted prosecution powers to the police, establishing their authority to prosecute criminal cases. Executive Instrument (E.I) 74 (1985): Mandated the police to continue prosecuting cases. Police Service Regulation 2012 (C.I 74/77) further guides the conduct of police officers in their prosecutorial duties. I understand that the Ghana Police Service operates JUPOL (Judicial Police) units, which consist of trained police officers responsible for conducting prosecutions.

Additionally, the Ghana Revenue Authority is granted a special discretion to initiate prosecutions. The Ghana Revenue Authority (GRA) is authorized to prosecute tax offences primarily under the Revenue Administration Act, 2016 (Act 915), which outlines tax offences, penalties, and prosecutorial procedures. Additional authority is derived from the Ghana Revenue Authority Act, 2009 (Act 791), which established the Authority, and a special fiat issued by the Attorney General that empowers GRA officials to initiate prosecutions, including travel restrictions and confinement. Value Added Tax (VAT) Act, 2013 (Act 870): Specifically authorizes the Commissioner General of GRA to prosecute for failure to issue VAT invoices.

The National Petroleum Authority (NPA) is authorized to prosecute petroleum downstream offenses under the National Petroleum Authority Act, 2005 (Act 691) and Executive Instrument (E.I) 378, obtained in 2020. This authority, granted by the Attorney General, enables the NPA to directly prosecute crimes like operating without a license, tampering with tracking systems, and manipulating pricing.

The Economic and Organized Crime Office (EOCO) in Ghana is authorized to prosecute serious offenses primarily under the EOCO Act, 2010 (Act 804). Prosecution by EOCO is conducted on the authority of the Attorney General, with specific public prosecutors and legal staff mandated to initiate criminal cases, often listed under Executive Instrument (E.I) 206.

Thus, the Ghanaian constitution grants a special fiat to other "state officials or personnel" (Ghana Police, GRA, NPA, EOCO, and others) to initiate prosecutions to impose penalties, fines, and even imprisonment.

The Office of the Special Prosecutor (OSP) in Ghana is primarily authorized to investigate and prosecute corruption-related offences under the Office of the Special Prosecutor Act, 2017 (Act 959) and its associated regulations. Specifically, regulation 11 of (L.I 2374) states, “the Special Prosecutor or an 'authorized personnel' shall, upon considering the facts and evidence gathered from an investigation, take a decision whether or not to prosecute”.

It is quite clear that the OSP can initiate prosecutions. However, those of the view that one can not use the "legislative process" to amend an entrenched provision of the constitution, I respectively differ in the sense that the constitutional provision in article 88 (4) allows the AG to "authorize" another “state official or personnel to prosecute” specific offences. Hence, the creation of the OSP is not necessarily offensive to the Constitution. It would be an entirely different argument if the legislative processes were used to extend the term of office of the President of Ghana or to transfer the conduct of elections from the Electoral Commission to the office of the Inspector General of Police. The entrenched provisions of the Constitution, 1992, do not grant discretion to do either. But with the AG provisions of the Constitution, 1992, Article 88(4) unambiguously allows for "authorized personnel" to initiate prosecution on behalf of the AG.

The AG specifically introduced the Bill that became the OSP law (Act 959), and the regulations L.I 2374. The AG recommended and facilitated the appointments of the SP and other personnel for the office of the Special Prosecutor. In view of the above, it can hardly be argued that the AG DID NOT intend to authorize the OSP to initiate prosecutions, as it has done with the Police, GRA, NPA, and EOCO. There is even evidence of collaboration between the AG and the OSP.

Though some justices and readers may see the issue differently, I believe there are sufficient safeguards in the OSP law (ACT 959) to allow it to operate in Ghana. If it's determined to be unconstitutional, then all the other bodies with prosecutorial powers may have to surrender their “warrants” to prosecute. That will be embarrassingly chaotic. Besides, the AG is well advised to allow the OSP to prosecute cases involving “politically exposed persons”, that the AG’s office may wish to wash its hands of the matter.

The OSP law should find a safe harbour in the current jurisprudence of Ghana. It is needed. Other nations, like the United States, have a Special Counsel statute to prosecute “special cases,” such as the events of January 6, 2021. In the words of Professor Justice Date-Bah, the law must find its purpose.

   Comments1