The debate surrounding the constitutional challenge to the prosecutorial powers of the Office of the Special Prosecutor is beginning to shift from the Office itself to a more foundational question, whether the case even raises a genuine constitutional issue capable of invoking the original jurisdiction of the Supreme Court.
That question has now been thrust into the centre of public legal discussion by former Attorney General Godfred Yeboah Dame, who, in a television interview, strongly suggested that the present action may never have belonged before the Supreme Court as a constitutional matter in the first place.
His argument, at least impliedly, suggests that the Attorney-General ought perhaps to have raised a preliminary objection to the Court’s jurisdiction on the basis that no genuine constitutional issue arises for determination.
Interestingly, traces of a similar argument, though in much softer form, also appear in the proposed amici curiae brief recently filed by fourteen civil society organisations seeking leave to join the case as friends of the court.
The “No Constitutional Issue” Argument
Speaking in the interview, Dame argued that the starting point for any Attorney General confronted with a constitutional action ought to be whether the matter truly raises a constitutional question at all.
According to him, the impugned provisions of the OSP Act themselves already recognise the constitutional authority of the Attorney General under Article 88, making it difficult to see where the alleged inconsistency arises.
He pointed specifically to section 4 of the Office of the Special Prosecutor Act, which begins with the words “subject to article 88 of the Constitution.” For Dame, those opening words are not decorative legal ornaments hanging loosely on the statute. In his view, they are a direct acknowledgment that the Office’s prosecutorial powers remain subordinate to the constitutional authority of the Attorney General.
He further argued that the provision itself contemplates prosecutions being undertaken by the Special Prosecutor or authorised officers acting pursuant to authorisation by the Attorney General. From that standpoint, Dame suggested that even if questions existed about whether sufficient authorisation had been granted in practice, that would still be different from saying that the law itself is unconstitutional.
“The absence of authorization is different from the question whether the enactment is inconsistent with the constitution,” he said during the interview.
The former Attorney General also referred to Regulation 11 of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), arguing that the Legislative Instrument already delegates substantial prosecutorial authority to the Office.
Relying additionally on section 48 of the Interpretation Act on delegation of functions by public officers, Dame suggested that if the present Attorney General genuinely believed further authorisation was required, the matter could easily be cured administratively rather than through constitutional litigation.
“All he has to do is execute an instrument and then mandate this office to work,” he said, describing it as “a five minute function.”
The remarks also appeared to carry an implied criticism of the Attorney General’s decision to substantially agree with portions of the plaintiff’s challenge.
According to Dame, a government genuinely interested in preserving the anti corruption mandate of the OSP would not support a constitutional action capable of weakening the Office through judicial process.
The Law On Constitutional Interpretation And Enforcement
Dame’s comments reopen one of the oldest questions in Ghana’s constitutional jurisprudence. When does a dispute truly become a constitutional matter?
That question has occupied the Supreme Court for decades and has shaped the boundaries of its original jurisdiction under article 2 of the Constitution.
The leading authority remains Republic v Special Tribunal; Ex Parte Akosah, often described in Ghanaian constitutional law as the locus classicus on constitutional interpretation and enforcement.
In that decision, the Court outlined circumstances under which a constitutional issue properly arises. These include situations where constitutional provisions are ambiguous, where rival meanings are placed on constitutional text, where constitutional provisions appear to conflict with one another, or where there is conflict in the operation of constitutional institutions.
Over the years, the Court has repeatedly warned against attempts to dress ordinary legal disputes in constitutional robes merely to invoke its original jurisdiction. That caution resurfaced in Bomfeh v Attorney-General, where the Supreme Court stressed that not every dispute touching the Constitution necessarily raises a genuine constitutional question.
The Court warned against what it described as attempts by litigants to “cleverly” manufacture constitutional interpretation questions where none genuinely exist. It further cautioned that “absurd, strained and far fetched” interpretations of otherwise clear constitutional provisions do not automatically create constitutional jurisdiction.
It is this stream of constitutional reasoning that appears to undergird Dame’s position. His central argument, at least impliedly, is that once the OSP Act expressly recognises article 88 and provides for prosecutorial authorisation by the Attorney General, the present dispute may concern implementation or administrative sufficiency rather than constitutional inconsistency.
Whether the Supreme Court ultimately accepts that argument remains to be seen. But as the litigation continues to unfold, the case is increasingly becoming more than a battle over the prosecutorial powers of the OSP alone. It is also evolving into a larger constitutional conversation about the threshold for invoking article 2 jurisdiction and the fine line separating genuine constitutional controversy from ordinary legal disagreement clothed in constitutional language.
