A significant constitutional question has been laid before Ghana’s Supreme Court, one that strikes at the heart of the country’s anti-corruption architecture. The Attorney-General, through the Deputy Attorney-General, Srem Sai, has advanced arguments challenging the legality of the prosecutorial powers exercised by the Office of the Special Prosecutor (OSP).
At the centre of the action is whether the OSP can prosecute corruption-related offences without prior authorisation from the Attorney-General, and more fundamentally, whether Parliament has the constitutional authority to structure such prosecutorial powers in the manner it has done under the Office of the Special Prosecutor Act, 2017 (Act 959).
The Legal Framework: Article 88 and Act 959
The Attorney-General’s case is anchored firmly in Article 88 of the 1992 Constitution, which vests prosecutorial authority in the Attorney-General. Under this provision, the Attorney-General is designated as the principal legal advisor to the Government and is responsible for the initiation and conduct of all prosecutions on behalf of the Republic.
Importantly, Article 88(4) permits the Attorney-General to delegate this prosecutorial authority to other persons or authorities, introducing an additional layer to the constitutional framework governing prosecutions.
Accordingly, at least, on paper, section 4(2) of the Office of the Special Prosecutor Act, 2017 (Act 959) provides that the OSP may prosecute corruption and corruption-related offences, subject to authorisation by the Attorney-General.
However, the Attorney-General contends that the practical operation of the law has deviated from its text. According to the proposed Statement of Case filed on 8 April 2026, the OSP has, since its establishment in 2018, undertaken investigations and prosecutions without consistently obtaining the constitutionally required authorisation.
The Core Constitutional Challenge
The Attorney-General’s argument raises two interrelated constitutional issues.
First, whether Parliament can, through ordinary legislation, alter or limit the constitutional prosecutorial powers vested in the Attorney-General.
Second, whether prosecutorial authority, being a constitutional function, can be delegated to a juridical entity such as the Office of the Special Prosecutor.
The Attorney-General answers both questions in the negative.
Key Arguments Advanced by the Attorney-General
In the proposed arguments, the Attorney-General sets out a structured constitutional challenge:
Exclusive Vesting of Prosecutorial Power
The Attorney-General maintains that prosecutorial authority in Ghana is constitutionally vested in the Attorney-General, subject to the power of delegation under Article 88(4).” Any attempt to dilute or redistribute this authority must find justification within the Constitution itself, not ordinary legislation.
Unconstitutional Compulsion by Parliament
It is argued that section 4(2) of Act 959, especially, by use of the word “shall”, effectively compels the Attorney-General to authorise the OSP to prosecute. This, the Attorney-General contends, is constitutionally impermissible, as it interferes with the discretion inherent in Article 88.
Limits of Legislative Power
The Attorney-General further asserts that Parliament lacks the authority to vary constitutional powers through ordinary legislation. Any such attempt, it is argued, constitutes an excess of legislative competence.
Delegation to Juridical Persons
the Attorney-General contends that prosecutorial powers are constitutionally intended to be exercised by natural persons acting under his authority, and not by a juridical entity such as the OSP.” In this view, the statutory framework establishing the OSP’s prosecutorial mandate is fundamentally flawed.
Reliefs Sought
Accordingly, the Attorney-General prays the Court to:
Declare that Parliament has, by an ordinary legislation, varied the constitutional prosecutorial powers of the Attorney-General in a manner not authorised by the Constitution.
Declare that, to that extent, Parliament has acted in excess of the legislative powers conferred on it by the Constitution.
Consequently, the Attorney-General invites the Court to declare the said provision unconstitutional and, to the extent of its inconsistency with the Constitution, null and void.
Implications: Beyond Institutional Design
The significance of this action extends far beyond institutional design. If the Attorney-General’s challenge succeeds, the consequences are likely to be immediate, far-reaching, and would raise some complex questions.
Impact on Ongoing Prosecutions
Perhaps the most immediate effect would be on ongoing prosecutions initiated by the OSP. Accused persons in such cases are likely to mount jurisdictional challenges, arguing that the OSP lacked the constitutional authority to initiate proceedings in the absence of prior authorisation. This could trigger applications to strike out charges or to stay proceedings pending clarification of the law.
Courts, in turn, may be compelled to answer the question of whether prosecutions commenced without proper constitutional authority are void ab initio, or whether they may be preserved in the interests of justice. A strict approach could render such proceedings a nullity, while a more pragmatic approach may preserve them, either by invoking doctrines that protect acts performed under colour of authority or by applying the Court’s ruling prospectively.
Re-initiation and Delay
Should existing prosecutions be invalidated, the Attorney-General may be required to assume control of such cases and re-initiate proceedings. This, however, comes with its downsides. Delays, evidentiary challenges, and potential prejudice to both the prosecution and the defence are but a few of these downsides. Prolonged uncertainty may also invite arguments concerning one’s right to a fair trial under Article 19 of the Constitution.
Emerging Defence Strategies
A successful challenge would almost certainly have an impact on defence strategies in corruption trials. Beyond the obvious jurisdictional objections that could be raised, accused persons may raise claims of abuse of process, contend that their prosecutions were commenced without lawful authority, or argue that delays occasioned by institutional restructuring have compromised their right to a fair hearing.
Reconfiguration of Prosecutorial Authority
At an institutional level, a ruling in favour of the Attorney-General would effectively re-centralise prosecutorial power. The OSP’s role may be reduced to that of an investigative body or, at most, a prosecutorial agency acting strictly on the fiat of the Attorney-General. This would result in a significant shift away from the model of operation and independence that underpinned the creation of the OSP.
Broader Anti-Corruption Implications
A decision in favour of the AG, broadly speaking, may raise concerns about the pace and structure of anti-corruption enforcement. The requirement of prior authorisation for every prosecution could introduce delays and bureaucratic constraints, while also raising concerns, fairly or otherwise, about political oversight in the prosecution of corruption-related offences.
As the Supreme Court considers the arguments, its eventual decision will not only clarify the scope of the Attorney-General’s powers under Article 88 but will also determine the constitutional legitimacy and future of one of Ghana’s most prominent anti-corruption institutions.
