Under The AG’s Shadow: Why Keeping The OSP Is A Waste Of Taxpayer Money

Introduction
On 15th April 2026, Justice John Eugene Nyadu Nyante of the Accra High Court (General Jurisdiction Division 10) delivered a ruling in The Republic v. Office of the Special Prosecutor (Suit No. GJ/0369/2026) that has sent shockwaves through Ghana's anti-corruption architecture. The Court held that the OSP cannot independently prosecute criminal cases without express authorisation from the Attorney-General. It declared all ongoing OSP prosecutions void and ordered the Attorney-General to take over those cases. It further declared that any convictions already secured by the OSP are void and must be retried de novo.

The Court reasoned that Article 88(4) of the 1992 Constitution vests prosecutorial power in the Attorney-General and permits delegation only through a specific mechanism, the issuance of an Executive Instrument under section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The OSP, the Court noted, had not obtained such an Instrument.

This ruling raises a fundamental question, If the OSP cannot prosecute independently, what is its purpose?

This article argues that independent prosecutorial power is not merely a statutory convenience for the OSP, it is the very essence of its existence. Without that power, the OSP becomes nothing more than an investigative appendage of the Attorney-General's Department, and Ghana would be better served by abolishing it altogether.

What Does Article 88 Actually Say?
The starting point of any constitutional analysis is the text itself. Article 1(2) of the 1992 Constitution declares "This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void."

As the Supreme Court held in New Patriotic Party v. Attorney-General (the 31st December Case) [1993-94] 2 GLR 35, the Constitution controls all legislation. No Act of Parliament, no matter how well-intentioned, can override a clear constitutional command.

Article 88(3) states "The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences."

Article 88(4) adds "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 Supreme Court has consistently held that where constitutional language is plain, it needs no interpretation, it demands application. In Republic v. Maikankan [1971] 2 GLR 473, the Court stated unequivocally that clear words must be given their ordinary meaning. In Gbedemah v. Awoonor Williams [1969] 2 G&G 439, it was held that "unless the words of a statute are imprecise and ambiguous the court does not apply the rules and presumptions of construction."

Applying the plain meaning rule to Article 88, we find three things:

1. The Attorney-General is responsible for all prosecutions.
2. Any prosecution in the name of the Republic must be at the suit of the Attorney-General or a person the Attorney-General has authorised.
3. That authorisation must be "in accordance with any law."

There is no ambiguity. There is no hidden exception for corruption cases. There is no special carve-out for the Office of the Special Prosecutor.

But Parliament Enacted Act 959, Does That Change Anything?

Section 4(2) of the Office of the Special Prosecutor Act, 2017 (Act 959) 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."

At first glance, this appears to grant prosecutorial power to the OSP. The words "shall be authorised" sound like a command.

But notice the opening phrase, "Subject to clause (4) of article 88 of the Constitution." This means that whatever section 4(2) says, it operates under Article 88(4), not alongside it. And Article 88(4) requires that any person prosecuting in the name of the Republic must be authorised by the Attorney-General.

The words "shall be authorised by the Attorney-General" in section 4(2) are not a grant of power. They are a legislative direction that the Attorney-General shall grant that power. The authorisation still comes from the Attorney-General. The OSP Act does not make the OSP self-authorising.

What the High Court Got Right and What It May Have Overlooked

The High Court was correct to note that Article 88(4) requires authorisation "in accordance with any law." It was also correct that section 56 of Act 30 provides a mechanism for such authorisation namely, the issuance of an Executive Instrument. The Court was further correct that the OSP had not obtained such an Instrument, and that institutions such as EOCO, the Ghana Revenue Authority, and the Electricity Company of Ghana had all received such E.I.s.

However, the Court's reasoning rests on a premise that merits closer scrutiny, that an Executive Instrument under section 56 of Act 30 is the exclusive mechanism for authorisation under Article 88(4).

Section 56 of Act 30 provides that "the Attorney General may, by executive instrument, appoint generally, or for a specified class of criminal cause or matter, or for a specified area, public officers to be public prosecutors". The use of "may" rather than "shall" or "exclusively" is significant. It suggests that the Executive Instrument is a permissive mechanism, not the only mechanism.

Article 88(4) speaks of authorisation "in accordance with any law." The word "any" is expansive. It encompasses Acts of Parliament, Executive Instruments, regulations, and other forms of law. If the framers had intended to restrict authorisation to Executive Instruments alone, they would have said so. They did not.

The OSP Act, 2017 (Act 959) is an Act of Parliament. It is a law and section 4(2) of that law expressly states that the OSP "shall be authorised" to prosecute corruption cases. The Bill was introduced by the Attorney-General and subsequently passed by Parliament. The long title of Act 959 explicitly states that the law was enacted to establish the OSP to investigate and prosecute corruption and corruption-related offences.

If an Executive Instrument can delegate prosecutorial power, why cannot an Act of Parliament, a higher form of law do the same? The Court did not adequately explain why an Act of Parliament cannot suffice as "any law" within the meaning of Article 88(4).

The Purpose Behind the OSP. Why Was It Created?

Ghana's experience with corruption prosecution has been, to put it charitably, uninspiring. As the first Special Prosecutor, Martin Amidu, noted in his 2019 address to the Internal Audit Conference, Ghana has witnessed "the birth and rebirth of various state anti-corruption institutions and mechanisms" since independence from the Corrupt Practices (Prevention) Act of 1964, through Commissions of Enquiry, Public Tribunals, the Serious Fraud Office, and eventually EOCO. Yet corruption has persisted and, by many measures, worsened.

The fundamental problem has always been the same, the Attorney-General is a political appointee. Article 88(1) of the Constitution explicitly states that "There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government."

How can a Minister of State, who sits in Cabinet and owes his or her appointment to the President, independently and impartially prosecute members of that same government for corruption?

The answer, as history has shown us repeatedly, is that in practice, they cannot.

This is not a theoretical concern. In recent memory, we have witnessed Attorneys-General enter nolle prosequi in high-profile corruption cases involving politically exposed persons. We have seen cases against former ministers and government appointees quietly discontinued following changes in administration. As former Attorney-General Nii Ayikoi Otoo himself observed, "Article 88 of the 1992 Constitution has weakened Ghana's fight against corruption by concentrating prosecutorial authority in the hands of a political appointee."

If the Attorney-General, a political appointee, cannot be trusted to prosecute corruption within his or her own government, then what is the solution?

The Paradox We Cannot Ignore
We are therefore confronted with a paradox. The literal meaning of the Constitution gives all prosecutorial power to the Attorney-General. But the practical reality is that the Attorney-General, as a political actor, cannot be trusted to exercise that power impartially when the accused are political allies.

The OSP was created to resolve this paradox. It was designed to be an independent institution capable of prosecuting politically exposed persons without external control or political influence. Section 4(1) of Act 959 states that the Office "is not subject to the direction or control of a person or an authority" in the performance of its functions.

But if the OSP must ultimately depend on the Attorney-General before exercising its prosecutorial mandate, then the very rationale behind its creation is significantly undermined. The independence guaranteed by the statute risks becoming ineffective in practice.

Some may argue that no matter what Parliament intended, the Constitution is supreme, and Article 88(4) requires authorisation by the Attorney-General.

This is correct, but it misses the point. The question is not whether authorisation is required. The question is how that authorisation may be given. Article 88(4) says authorisation must be "in accordance with any law." Act 959 is a law. It provides the authorisation. The Attorney-General, by introducing the Bill and sponsoring it through Parliament, signified agreement with that authorisation. To now require a separate Executive Instrument is to elevate form over substance.

The Practical Nightmare
Martin Amidu, Ghana's first Special Prosecutor, resigned in November 2020 citing precisely political interference. He described the obstacles placed in his path, the resistance he encountered when his investigations touched the ruling elite, and ultimately concluded that the office could not function as intended.

If the first Special Prosecutor could not make the office work due to political interference, how can any successor function when the High Court has now expressly made the OSP dependent on the Attorney-General's goodwill?

The Substantive vs. Procedural Authorisation Distinction

A further interpretive possibility worth considering is the distinction between substantive authorisation (the power to prosecute generally) and procedural authorisation (the specific mechanism by which that power is conferred).

Act 959 provides the substantive authorisation required by Article 88(4). An Executive Instrument under section 56 of Act 30 would merely be a procedural mechanism. If Parliament, as the supreme legislative authority, has already provided the substantive authorisation, then the absence of a procedural Executive Instrument should not vitiate the OSP's prosecutorial power.

This argument draws support from the principle that substance should prevail over form, particularly where the result of a purely formalistic reading would defeat the legislative purpose. The courts have long recognised that a purely literal interpretation, if it leads to a result that defeats the purpose of the law, may not be the correct interpretation.

What Is to Be Done?
The solution lies in one of two paths. First, a constitutional amendment under Article 290 would provide the clearest solution. Parliament could amend Article 88 to expressly recognise the OSP's independent prosecutorial powers. However, this is politically difficult and would require a referendum. Second, and more immediately, the Supreme Court could definitively resolve the interpretive question through a reference under Articles 2(1) and 130 of the 1992 Constitution. Such a reference would allow the Supreme Court to determine whether an Act of Parliament provide the authorisation required by Article 88(4)? A favourable ruling would restore the OSP's independent prosecutorial powers without requiring legislative action.

Notably, the OSP has already indicated that it is taking steps to challenge the High Court's ruling. A separate case before the Supreme Court is already challenging the OSP's authority to prosecute. The Supreme Court's decision could have far-reaching consequences, potentially redefining the OSP's role and the future of anti-corruption prosecutions in Ghana.

Conclusion
The OSP was not created merely to investigate corruption. Ghana already had institutions capable of doing that, the Police Service, EOCO, the Commission on Human Rights and Administrative Justice (CHRAJ). The Office was established to prosecute corruption independently, especially in situations where institutional conflicts of interest may arise. That is what makes the Special Prosecutor "special."

If the OSP cannot prosecute independently, then what is its purpose? What does it offer that the Attorney-General's Department does not already have? If the Office of the Special Prosecutor lacks independent prosecutorial power, if it can only prosecute at the discretion and upon the authorisation of the Attorney-General, then the logical and fiscally responsible course is to abolish it. To maintain it in its current state is to fund a constitutional and statutory nullity at the expense of the Ghanaian taxpayer.

The OSP exists to clip the wings of the Attorney-General when it comes to corruption prosecutions. If it cannot do that, it serves no purpose at all.

The independent prosecutorial power of the OSP is what gives the Office its legal identity and practical relevance. Without that power, the OSP becomes nothing more than an investigative appendage of the Attorney-General's Department. Ghana cannot continue to operate an anti-corruption institution whose authority depends on the discretion or goodwill of a political officeholder, particularly where allegations concern politically exposed persons within the same government administration.

Williams Abdulai Nketia
UPSA Law School, Level 400

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