SUPREME COURT COULD SUPPORT THE CONTENTION THAT THE OSP HAS PROSECUTORIAL POWERS
THE SUPREME COURT COULD SUPPORT THE CONTENTION THAT THE OSP HAS PROSECUTORIAL POWERS.
BY MARTIN A. B. K. AMIDU
“Decision to prosecute
11. The Special Prosecutor or an authorised officer shall upon considering the facts and evidence gathered from an investigation, take a decision whether or not to prosecute.” - L.I. 2374
One cannot determine whether the Office of the Special Prosecutor Act, 2017 (Act 959) is consistent with the provisions of Article 88 (3) and (4) of the 1992 Constitution without a critical and considered examination and analysis of the Office of the Special Prosecutor (Operations) Regulations, 2018 (L. I. 2374) the first draft of which waited for my input following my nomination and appointment as the first Special Prosecutor of the Office of the Special Prosecutor (OSP).
The scheme, design and structure of Act 959 that was submitted to Parliament and subsequently enacted into law was premised on mutual collaboration between the Attorney-General and the Special Prosecutor with an understanding that the Attorney-General would not unnecessarily interfere with the independent exercise of prosecutorial power within the narrow sphere of corruption and corruption-related offences. The Attorney-General was given ministerial responsibility for the OSP and was enjoined “within ninety days upon the assumption of office of the Special Prosecutor, in consultation with the Board, by legislative instrument” to make regulations for the operations of the OSP and to: “(k) provide generally for the effective implementation of this Act.” (See Sections 78 and the meaning of “Minister” under Section 97 of Act 959).
Consequently, when I was nominated and approved by Parliament for appointment as the first Special Prosecutor, the Attorney-General and Minister for Justice was not only involved in my formal appointment by the President but was also responsible, together with the Chief of Staff, for assisting me to operationalizing the OSP to enable it to execute its statutory mandate. The Deputy Special Prosecutor could only be nominated for appointment after the Special Prosecutor had assumed office. The Governing Board of the OSP was appointed thereafter. I, therefore, assumed office without any staff and without the ability to appoint any staff under Act 959 and without any budget.
Miss. Gloria Akuffo, the Attorney-General and Minister for Justice applied for the secondment of a Private Secretary from the Head of Civil Service and a Records Officer from the Public Record and Archives Administration Department (PRAAD) to enable me to begin the operationalization of the OSP. She provided the receipt and dispatch stamps, letters received books, letters dispatched books, movements book, and other basic administrative necessities to enable me to start basic communication with other state institutions.
The Attorney-General then wrote to me to make my input into the draft Office of the Special Prosecutor (Operations) Regulations, 2018 which she had been working on in collaboration with the Anti-Corruption Civil Society Organizations under the auspices of CDD-Ghana. The Deputy Special Prosecutor and the Board were yet to be appointed. The first draft Operations Regulations submitted for my input was structured as an investigation agency in the nature of a commission of enquiry.
I had to rely on my experience as an investigator and prosecutor, having exercised the powers of the Attorney-General during my long service in the Office of the Attorney-General to enable us arrive at what was eventually submitted by the Attorney-General to Parliament to be enacted as the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374).
The collaborative relationship between the Attorney-General and Minister for Justice and the OSP led to the provisions of the Regulations dealing with Complaints, Investigations, and Prosecution in the terms they were enacted under the signature of Gloria Afua Akuffo, the Attorney-General and Minister for Justice in L. I. 2374. This mutually respectful and collaborative relationship between the OSP and the Office of the Attorney-General endured throughout my tenure as the Special Prosecutor despite my seniority as a former Attorney-General myself.
Regulation 11 of L. I. 2374 which meets the requirement of delegation of prosecutorial authority by the Attorney-General under Article 88(4) to the Special Prosecutor states as follows:
“Prosecution
Decision to prosecute
11. The Special Prosecutor or an authorised officer shall upon considering the facts and evidence gathered from an investigation, take a decision whether or not to prosecute.”
Subsequently, Miss Akuffo assisted the OSP to have the services of seconded police investigators, prosecutors, and other officers. She also seconded a Chief State Attorney and a State Attorney to assist in prosecutions under the directions of the Special Prosecutor. The records of correspondence are available in the OSP and at the Office of the Attorney-General to demonstrate that the Special Prosecutor had the authority of the Attorney-General to exercise her delegated prosecutorial powers under Article 88 of the Constitution. Regulation 11 of L. I. 2374 further reinforced this position.
After writing and publishing my discourse on the subject titled: “The Court lacked jurisdiction to hear the quo warranto application against the prosecutorial powers of the OSP” which also discussed the partisan and prejudicial comments of the Deputy Attorney-General, it occurred to me that when L. I. 2374 was being made, the Attorney-General and I had ensured that prosecutorial authority was granted to the Special Prosecutor under L. I. 2374. I confirmed my recollections from my copy of L. I. 2374, which lead me to write this discourse to assist prospective Interested Parties who may wish to join the pending case at the Supreme Court on the constitutionality of Act 959.
I have contended in the last two articles I published on 17 and 23 April 2026 respectively that the Supreme Court may be persuaded by the grounds on which the US Supreme Court upheld the constitutionality of the Independent Counsel provision contained in the US Ethics in Government Act, 1978. In my memorandum submitted to Parliament during the consideration for the enactment of Act 959 I stated, inter alia, that:
“My detailed study of the subject has led me to the conclusion that it is feasible to enact a law establishing the Office of the Special Prosecutor that will not be inconsistent with the 1992 Constitution, particularly Article 88 thereof. The powers of the Attorney General under the 1992 Constitution are the same as the powers of the Attorney General of the United States of America. The United States Attorney General appoints Special Prosecutors with independence of tenure under Regulations which have been held to be consistent with the United States Constitution. The Office of Independent Counsel established under the Ethics in Government Act of 1978 was also held in Morrison v Olson 487 U. S. 654 to be constitutional even though as I pointed out already, Congress did not renew it when it expired in 1999.”
I feel very strongly that when an Interested Party or Parties join the case of Adamtey v the Attorney-General pending before the Supreme Court for determination and canvass the alternative perspective submitted in this discourse, the Supreme Court may come to the conclusion and decide that the Special Prosecutor has prosecutorial powers under Act 959 and L. I. 2374, particularly under Regulation 11 thereof.
I have deep sympathy for all the persons being persecuted by the Special Prosecutor in abuse of the investigatory and prosecutorial powers entrusted to him under Act 959 and L. I. 2374. I have authored several articles about the unconstitutional conduct of the Special Prosecutor which may be read on my website. However, the solution to the unconstitutional conduct of the Special Prosecutor is to deal with the persons abusing the constitution and not to denude the OSP as an institution for the fight against corruption.
The turf war and acrimony between the Special Prosecutor and the Attorney-General does not bode well for Ghana’s fight against corruption. The Special Prosecutor whilst maintaining some independence in making prosecutorial decisions and prosecuting must at all times remember that his authority is derived from Article 88 of the Constitution and to collaborate with the Attorney-General to achieve the objective set for the OSP in Act 959 and the pursuant Regulations upon which his functions are operationalized.
The Special Prosecutor refused to submit a closed docket to the Attorney-General after he had completed an investigation and decided to close the case. Upon receipt of the Attorney-General’s letter requesting for the closed docket in August 2024 for residual action, the Special Prosecutor absconded abroad until there was a change of government.
With the advent of a new Attorney-General and Government, the same Special Prosecutor refuses to collaborate with the Attorney-General by delivering the case docket in matters in which the Attorney-General is the Central Authority for Ghana. In these circumstances, it is not Act 959 which is the problem but the Special Prosecutor who perceives himself to be above Article 88 of the Constitution and other laws despite the tacit understanding that the Attorney-General will not interfere with the Special Prosecutor’s exercise of delegated power.
Patriotic Ghanaians have to remember that the OSP was not established as an instrument for blackmailing Governments as an insurance against removal for abuse of office but an agency that will enable Governments to fight corruption without fear or favour, affection or ill will. Ultimately, the authority of the Special Prosecutor to fight corruption is derived from the executive authority of the President under Articles 58 and 88 of the 1992 Constitution.
Martin A. B. K. Amidu
23 April 2026.