Let’s Wait For The Certified Judgment Of The Supreme Court To Determine What It Really Decided On The OSP

The media reported in the morning of 29 July 2026 that the Supreme Court had rendered a decision in the case of Adamtey v Attorney-General by unanimously affirming the constitutionality of the Office of the Special Prosecutor (OSP) while at the same time clarifying that the Attorney-General retains the constitutional power to discontinue criminal prosecutions initiated by the OSP.

Unfortunately, the judgment of the Supreme Court is unavailable to enable an informed examination and analysis to determine objectively whether the Supreme Court in fact upheld the constitutionality of the OSP as an independent prosecutorial agency which is what the Office of the Special Prosecutor Act, 2017 (Act 959) set out to establish or the Supreme Court has reduced the OSP to another investigation and prosecutorial agency under the discretionary control and direction of the Government through an Attorney-General appointed and dismissible at the whims of the President.

The difference between the investigatory and prosecutorial powers of the OSP under Act 959, and those of the Ghana Police Service, the Economic and Organized Crime Office, and other such agencies was the fact that the Attorney-General could not interfere with and discontinue investigations and prosecutions by the OSP.

Section 80 of Act 959 dealing with consequential amendments amended subsection 1 of the Economic and Organized Crime Office Act, 2010 (Act 804) ‘in section 74 by the deletion of the words “corruption and bribery” in paragraph (a) of the definition of serious offence’, and also in subsection 2, ‘amended the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) ‘in (a) section 54 and 55 by inserting after “Attorney-General” of “or Special Prosecutor” wherever it appears; and (b) section 54 by the insertion of a new subsection (2A) as follows:

“(2A) Where the Special Prosecutor enters a nolle prosequi under subsection (1), the Special Prosecutor shall state reasons for doing so.”’

Parliament had the authority to amend sections 74 of Act 804 and sections 54 and 55 of Act 30 as pieces of legislation it has enacted just as Parliament has the power through legislation to legislate on the existing law and the common law referred to under Article 11 of the Constitution. The powers of the Attorney-General under sections 54 and 55 of Act 30 are codifications of the common law prosecutorial discretion of the Attorney-General which are not subjected to review by the courts. Parliament, however, retained the authority to amend or modify them through legislation as it did under section 80 of Act 959.

Should the certified copy of the judgment of the Supreme Court in Adamtey v Attorney-General when publicly available state that section 80(2) of Act 959 is unconstitutional, it will mean that portions of Act 959 governing the independent powers of the Special Prosecutor are unconstitutional. It will then follow that the Court decided that portions of the prosecutorial powers of the Special Prosecutor derived from codification of the common law are unconstitutional and thereby showing the media reports stating that the Court unanimously affirmed “the constitutionality of the Office of the Special Prosecutor (OSP)” to be half truths. The unanimous judgment would have, in fact, reduced the OSP to the level of any other investigation and prosecutorial agency under the complete direction and control of the President. The enactment of Act 959 by Parliament to establish the OSP as another such agency would have been a waste of time, a needless charge on the public purse, a redundancy, and a violation of Article 106 of the Constitution for the absence of any defects in the existing law it was intended to remedy.

The response I received when I enquired about the availability of a certified copy of the judgment of the Court in Adamtey v Attorney-General is that it is not yet available to the public until 4 August 2026. The media is, however, awash with opinions and comments on the decision of the Supreme Court as though those proffering them had read the certified judgement to enable them to engage in any informed discourse with the public on the subject. The Supreme Court decision in the Republic v Mensah-Bonsu & Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 prohibits public comments and opinions from uncertified judgments or hearsay sources.

The purpose of this discourse is, therefore, to caution the public to hold their horses and refrain from speculating on what the Supreme Court decided in Adamtey v Attorney-General until the certified judgment becomes publicly available. Only then can there be an informed discourse on whether the Court really decided that Act 959 is constitutional in its entirety or found portions of it to be unconstitutional, and the reason for the unconstitutionality.

Without access to certified true copy of the judgment one cannot, in all honesty examine, analyse, and derive informed conclusions on the implications of the judgment on the constitutionality of the OSP as envisaged and established under the Office of the Special Prosecutor Act, 2017 (Act 959).

Martin A. B. K. Amidu 29 July 2026

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