Addressing workers at the May Day celebration at Jackson Park, President John Dramani Mahama struck a careful but significant note on the future of the Office of the Special Prosecutor (OSP), an institution now standing at the centre of a constitutional storm.
“While some of the issues are pending appeal and Supreme Court interpretations,” he said, “government believes that there is space for an effective OSP with special powers of prosecution.”
This was not an isolated remark. It marked the third time the President has publicly pushed back, in measured terms, against attempts to dismantle the Office. Earlier, he described such efforts as premature, and went further to request the withdrawal of a Private Member’s Bill sponsored by Mahama Ayariga and Rockson-Nelson Dafeamekpor seeking to repeal the law establishing the OSP.
Taken together, the signals from the Presidency appear consistent. The Office, in the government’s view, should be allowed to function, though not without accountability.
But that position is now being tested, not in speeches, but in court.
Noah Adamtey v Attorney-General: A Case That Cuts to the Core
At the Supreme Court, a pending case challenges the very foundation of the OSP. The plaintiff asks the Court to declare key provisions of the enabling law unconstitutional, effectively stripping the Office of its independent prosecutorial authority.
In simple terms, the case asks a fundamental question, whether an institution outside the Attorney-General can prosecute corruption independently.
Ordinarily, one would expect the Attorney-General to stand firmly in defence of a law passed by Parliament and operational under government. But here, the legal ground becomes less certain.
The Attorney-General’s Tightrope
In submissions before the Court, the Attorney-General does not fully embrace the plaintiff’s case. Yet, the reasoning advanced leans heavily toward the same constitutional concerns.
At the centre of that argument is article 88 of the 1992 Constitution of Ghana, which vests prosecutorial authority in the Attorney-General.
The position, stripped of legal complexity, unfolds along a clear line. Prosecutorial power, the Attorney-General argues, is constitutionally centralised. Others may prosecute, but only with his authorisation, and that authorisation must remain a matter of discretion, not obligation.
From there, the argument deepens. Parliament, it is suggested, cannot compel the Attorney-General to delegate that authority. Nor can such power be transferred wholesale to an independent body insulated from his control. To do so, the submissions imply, would be to alter the Constitution through ordinary legislation.
In effect, while resisting parts of the plaintiff’s case, the Attorney-General reinforces its core premise.
Between Law and Policy
Under article 88 of the 1992 Constitution of Ghana, the Attorney-General serves as the principal legal adviser to the government and a member of the executive branch. That same constitutional structure vests executive authority in the President under its article 58. Therefore, the Attorney-General operates within that executive framework, while the President stands at its head, holding, in everyday parlance, the rod that keeps the system in line.
Yet law does not always bend to policy. The President’s remarks suggest a clear preference for an OSP that works, and works effectively. The Attorney-General’s submissions, however, reflect a strict reading of constitutional limits, one that may leave little room for such an institution in its current form.
The optics cannot be ignored. In all this lies a quiet but important question. Is this a divergence in government position, or simply the Attorney-General applying the law as he sees it, regardless of political direction?
What Happens If the Court Agrees?
If the Court rules against the OSP’s current structure, the consequences will not necessarily be the end of the Office. But they will demand a response.
One path could be legislative repair, amending the law to bring it within constitutional limits. Another could be a practical workaround, where the Attorney-General grants standing authorisation for prosecutions, allowing the Office to function, though no longer independently.
Beyond that lies a more ambitious possibility, one already contemplated in the recommendations of the constitutional review committee chaired by H. Kwasi Prempeh.
That proposal envisioned an independent Anti-Corruption and Ethics Commission, a single body with full authority to investigate and prosecute corruption, free from executive control. It would, in effect, absorb or replace the OSP and redraw the lines of prosecutorial power entirely.
For now, that vision remains on paper.
A Question That Lingers
The law will ultimately speak through the Court. Until then, the OSP stands in a delicate space, supported in principle by the Presidency, yet tested in substance by constitutional argument from within the government itself.
And so the real question, sharpened by the President’s May Day remarks, remains:
Is the government united in its defence of the OSP, or is the future of the Office now resting on a legal interpretation that may quietly pull it apart?
