The courtroom door has been pushed open. The question now is how many will walk through it.
In a ruling that has quickly rippled across Ghana’s legal landscape, the High Court, in a quo warranto application arising from the so-called rice scandal case, held that the Office of the Special Prosecutor lacked the requisite authority to prosecute the accused persons before it.
The immediate effect of that decision may appear confined to the facts of that case. But its aftershocks are anything but contained.
A new question now presses itself forward, urgent and unavoidable: “Will there be a mad rush to the courts by accused persons standing trial in prosecutions initiated by the OSP?”
The Role of the Attorney-General in Criminal Prosecutions
At the centre of the controversy is article 88 of the 1992 Constitution, which vests prosecutorial authority in the Attorney-General. The Attorney-General is responsible for the initiation and conduct of all criminal prosecutions, and any such prosecution must be undertaken either by the Attorney-General or by a person authorised by him in accordance with law.
That authority is not merely administrative. It is constitutional, and therefore foundational.
Under section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the Attorney-General may appoint public prosecutors, whether generally, for specific classes of cases, or for particular matters. The architecture is thus clear: prosecutorial power may be delegated, but it must originate from, and remain anchored in, the Attorney-General.
It is this constitutional anchor that the High Court’s ruling appears to have tested.
But What are the Effects of the Decision?
It may well be argued that the ruling turns on its specific facts, that the defect identified relates to the particular circumstances under which the prosecution in that case was undertaken. On that view, it would be inaccurate to suggest that the OSP has been stripped wholesale of its prosecutorial authority.
But litigation does not move in neat, contained lines. What one accused person has done successfully, others are likely to attempt. The strategy is now visible. The pathway has been drawn. And in criminal practice, once a procedural or jurisdictional point gains traction, it rarely remains isolated.
Nullity, Salvage or Confusion?
If the reasoning of the High Court is extended, a more difficult question emerges. If the OSP lacked the authority to prosecute, then what becomes of the proceedings it has initiated?
The orthodox legal answer is stark: “Proceedings conducted without jurisdiction are a nullity.” Lawyers describe this as being void ab initio.
On that footing, the suggestion that such cases could simply be transferred to the Attorney-General for continuation becomes problematic. One cannot, in law, build on nothing. If the foundation is void, the structure above it struggles to stand.
Yet the legal terrain is not entirely settled. Most ongoing OSP prosecutions are themselves before the High Court. As courts of coordinate jurisdiction, one High Court is not strictly bound by the decision of another. This opens the door to divergence.
Some courts may follow the reasoning and strike down proceedings. Others may distinguish the facts or reject the argument altogether. Still others may take a more cautious route, staying proceedings pending the outcome of the substantive constitutional challenge before the Supreme Court.
The likely result is a patchwork of outcomes, uncertainty layered upon uncertainty. Even where courts are reluctant to nullify proceedings outright, they may choose to halt them. Stays of proceedings, granted in the interest of judicial prudence, could become increasingly common as the legal system awaits clarity from the apex court. And with each pause, the broader project of criminal accountability slows.
The Investigation–Prosecution Divide
It must be noted that the Office of the Special Prosecutor is not stripped of all power. Its investigative mandate remains intact. But investigation without prosecutorial certainty raises its own question:
“Of what practical value is an investigative power where the decision to act on its outcome ultimately rests elsewhere?”
That question returns the conversation to the very concern that gave rise to the Office in the first place: the perceived limitations of a system in which prosecutorial authority is centralised in the Attorney-General.
What is unfolding is not merely a technical dispute about statutory interpretation. It is a moment of institutional strain.
Accused persons may well move swiftly to test the validity of the prosecutions they face. Some will succeed. Some will not. Many proceedings may stall in the interim.
And in that widening space of legal uncertainty, the fight against corruption risks losing momentum.
Until the Supreme Court speaks definitively on the constitutional status of the OSP’s prosecutorial powers, the courts may become the arena for repeated challenges.
The rush, if it comes, will not be irrational. It will be strategic. And in all of this, the fight against corruption risks being struck blow after blow, gradually slowed, weakened, and, if left unresolved, brought to a standstill.
