Supreme Court explains why OSP can prosecute but A-G can discontinue any prosecution by OSP

The Supreme Court has ruled that the Office of the Special Prosecutor Act, 2017 (Act 959), is constitutional, dismissing claims that key provisions of the law violate the 1992 Constitution.

In a judgment delivered on Wednesday, the apex court held that Sections 3 and 4 of Act 959 are consistent with the Constitution and therefore remain valid.

The ruling rejected arguments by Legal Officer Noah E. Adamtey, who had challenged the constitutionality of the provisions and sought to have them declared void.

The court further affirmed that the Attorney-General (A-G) retains the exclusive constitutional authority to conduct prosecutions on behalf of the Republic. It explained that any individual or institution prosecuting in the name of the Republic does so only with the authority of the Attorney-General.

According to the court, the Office of the Special Prosecutor (OSP) exercises prosecutorial powers through an authorisation granted by the Attorney-General in accordance with the law, and that authorisation remains valid unless it is amended.

The justices also clarified that the Attorney-General continues to possess the authority to enter a nolle prosequi in cases initiated by the OSP, thereby discontinuing criminal proceedings where necessary.

Additionally, the Supreme Court ruled that all prosecutions, convictions and freezing orders made under Section 71 of Act 959 remain legally valid. It further emphasised that nothing in its judgment undermines the authority of prosecutors who have been duly authorised by the Attorney-General to prosecute cases on behalf of the Republic.