Ghana’s anti-corruption enforcement landscape has been thrown into uncertainty following a High Court ruling that the Office of the Special Prosecutor (OSP) lacks independent prosecutorial powers, even as parallel proceedings in a related criminal trial continue before a different division of the same court.
In a decision delivered by Justice John Eugene Nyadu Nyante sitting as a High Court judge in the General Jurisdiction division, the court held that although the OSP possesses investigative authority, it cannot prosecute criminal cases without the authorisation of the Attorney-General. The court relied on Article 88(4) of the 1992 Constitution of Ghana, which vests prosecutorial authority in the Attorney-General.
The ruling, which arose from an application brought by Peter Archibold Hyde, a customs officer facing charges in the Tema Port Rice Case, further directed that all ongoing prosecutions initiated by the OSP be taken over by the Office of the Attorney-General. Costs of GH¢15,000 were awarded against the OSP.
The decision comes at a time when the constitutional validity of the OSP’s prosecutorial powers is already under challenge before the Supreme Court of Ghana.
Conflicting Positions in the Same Case
The implications of the ruling are immediately visible in the ongoing case of Republic v. Issah Seidu & 3 Others, popularly referred to as the “rice scandal case.”
The accused persons are currently standing trial before the High Court (Criminal Division), where proceedings remain active. In that forum, an application to strike out the case on similar grounds was dismissed, with the court opting instead to await the Supreme Court’s determination on the broader constitutional question.
In a parallel move, the same accused persons initiated separate proceedings before a different High Court judge sitting in the General Jurisdiction division. That court declined an application by the OSP to halt proceedings and proceeded to rule that the OSP lacks prosecutorial authority, directing that the matter be handled by the Attorney-General.
The result is a rare but legally significant situation: two High Court decisions, arising from the same factual matrix, pointing in different directions.
OSP Moves to Challenge Ruling
The OSP has indicated that it is taking steps to overturn the General Jurisdiction decision. Its position is anchored on a fundamental constitutional principle: that the High Court lacks the authority to strike down or render ineffective provisions of an Act of Parliament on constitutional grounds.
Such authority, the OSP argues, lies exclusively with the Supreme Court.
Legal Implications: Uncertainty Without Paralysis
While the ruling has generated considerable public attention, its immediate legal effect is more nuanced than it may appear.
Both divisions involved are part of the High Court, exercising concurrent jurisdiction. In practical terms, this means that one High Court is not bound by the decision of another.
The Criminal Division, therefore, is entitled to proceed with cases before it, particularly where it has chosen to defer to the Supreme Court on the constitutional question. As a result, ongoing criminal trials before the High Court are not automatically halted by the General Jurisdiction ruling. Some may proceed, while others may adopt a cautious approach and await guidance from the apex court.
The position is more constrained in the lower courts. The District and Circuit Courts, being subordinate to the High Court, are in principle bound by its decisions. In strict legal terms, the ruling may compel those courts to question or suspend OSP-led prosecutions, or require the intervention of the Attorney-General, unless the decision is stayed or overturned.
At the heart of the matter lies a constitutional boundary. The question of whether the OSP can independently prosecute is not merely procedural; it is a matter of constitutional interpretation involving Article 88 and the statutory framework establishing the OSP. Under Ghana’s legal order, only the Supreme Court has the final and exclusive authority to determine such constitutional questions.
