Attorney-General would face political cost for halting OSP prosecutions — Kojo Asante
Director of Policy Engagement and Partnerships at CDD-Ghana, Dr. Kojo Asante, has said any attempt by the Attorney-General to discontinue prosecutions initiated by the Office of the Special Prosecutor (OSP) would come with significant political consequences.
Speaking in an interview with Bernard Avle on Channel One TV’s The Point of View on Wednesday, July 29, Dr. Asante said although the Supreme Court has affirmed the Attorney-General’s constitutional authority over prosecutions, he does not expect that power to be exercised arbitrarily against the OSP.
“I don’t envisage a situation where the Attorney-General, maybe through its supervisory activities, will be entering nolle prosequi to stop the OSP. Then, that will also invoke a certain political cost,” he said.
He added: “Lots of people will ask questions on why the Attorney-General is withdrawing cases by the OSP. All these things must be done in accordance with the law, and done properly, so that it doesn’t cause disruptions to these institutions that the Attorney-General has given powers to.”
Dr. Asante also maintained that the Supreme Court’s decision upholding the constitutionality of the OSP Act effectively validates the prosecutorial powers granted to the anti-corruption body, including its authority to enter a nolle prosequi under the current law.
“The current OSP law gives the OSP the power of nolle prosequi, so if the court is affirming the constitutionality of the statute, with all the terms the OSP can operate, I think that affirmation also covers the nolle prosequi,” he said.
According to him, the Court made it clear that the Attorney-General can only reclaim those powers by amending or repealing the legislation establishing the OSP.
“What the court has said is that if at any point the Attorney-General feels that it wants to take its power back and amend the terms, it can go back and do that,” he said.
“In my reading, you can go back and amend the law, repeal the law and basically take your power back. So, I don’t see a situation where a nolle prosequi will be used in the way people are saying if the Attorney-General was prosecuting. Because that will be a bit odd. If you want to trigger that process, then you have to change the terms within which you are asking the OSP to operate,” he said.
His comments follow the Supreme Court’s unanimous decision upholding the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), while ruling that the Attorney-General retains the constitutional authority to discontinue prosecutions initiated by the OSP.
The ruling settles a constitutional challenge filed by private legal practitioner Noah Adamtey, who argued that Parliament acted beyond its powers by granting the OSP independent prosecutorial authority under Act 959.
Adamtey contended that Article 88 of the 1992 Constitution vests prosecutorial powers exclusively in the Attorney-General, making it unconstitutional for Parliament to establish another body with similar powers through ordinary legislation.
The Attorney-General supported the challenge, arguing that while prosecutorial powers may be delegated, such delegation must remain under the Attorney-General’s supervision and cannot be permanently vested in an independent institution without a constitutional amendment.
During the proceedings, the OSP sought to join the case as an interested party, but the Supreme Court rejected the application, holding that the constitutional issues could be determined between the plaintiff and the Attorney-General. However, several civil society organisations were allowed to participate in the proceedings because of their role in promoting anti-corruption reforms.