Accra, Ghana – A recent High Court decision has ignited a significant legal and public debate regarding the prosecutorial powers of the Office of the Special Prosecutor (OSP). The ruling suggests that the OSP requires fresh authorization from the Attorney-General (AG) for each criminal prosecution it initiates, raising fundamental questions about the OSP’s independence and its constitutional mandate to combat corruption.
The core of the controversy lies in whether the OSP, established as an independent body to investigate and prosecute corruption-related offenses, must repeatedly seek approval from the AG. This interpretation, if upheld, could undermine the OSP’s legislative purpose and weaken Ghana’s anti-corruption architecture.
Constitutional Framework for Prosecution
The 1992 Constitution of Ghana, specifically Article 88(4), addresses the authority to prosecute offenses in the name of the Republic. It states that prosecutions shall be at the suit of the Attorney-General or “ANY OTHER PERSON AUTHORIZED BY HIM…”.
This provision clearly contemplates that prosecutorial power can be delegated, meaning the Attorney-General does not hold an exclusive monopoly on initiating criminal proceedings. The Constitution permits such delegation, provided it is done in accordance with law.
Parliamentary Authorization Through Legislation
The critical question is how this authorization must be granted. Article 88(4) specifies that authorization must be “in accordance with ANY LAW.” This legal basis means authorization cannot be informal or arbitrary; it must be rooted in enacted legislation.
Ghana’s legislative power is vested solely in Parliament, as per Article 93(2) of the Constitution. Therefore, the Attorney-General cannot unilaterally create law to delegate prosecutorial powers; this requires parliamentary action.
The Office of the Special Prosecutor Act, 2017 (Act 959), was introduced by the Attorney-General and passed by Parliament. Its long title explicitly establishes the OSP to investigate and prosecute corruption and corruption-related offenses.
Crucially, Section 4(2) of Act 959 states that the Office shall, “FOR THE PURPOSES OF THIS ACT, be authorized by the AG…”. The Memorandum accompanying the OSP Bill, sponsored by the AG, affirmed the intention to vest the Special Prosecutor with the authority to effectively investigate and prosecute corruption cases.
This legislative act by Parliament is interpreted as fulfilling the constitutional requirement of Article 88(4). The Attorney-General, through the sponsorship and passage of Act 959, granted a standing authorization, not one requiring repeated renewal for each prosecution.
Conduct of Successive Attorneys-General
Beyond the explicit provisions of Act 959, the actions of successive Attorneys-General further support the interpretation of granted authorization. These actions include sponsoring the OSP Bill and its associated regulations (L.I. 2374), nominating individuals for the Special Prosecutor position, and consistently collaborating with the OSP.
It would be legally inconsistent for an Attorney-General to facilitate the OSP’s operational existence and then argue that the Office lacks prosecutorial authority. The nomination of a Special Prosecutor is not a mere formality; it signifies the intent for that appointee to discharge the statutory prosecutorial functions for which the office was created.
Implied and Explicit Authority in Regulations
The principle of necessary implication in statutory interpretation, recognized in Ghanaian jurisprudence, also supports the OSP’s authority. Where the legislative intent is clear, courts may interpret statutes to give effect to that purpose. The clear purpose of Act 959 was to create an independent anti-corruption body; an interpretation requiring repeated AG approvals would frustrate this intent.
Furthermore, the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), provides explicit confirmation. Regulation 11 states: “The Special Prosecutor or an authorized officer shall, upon considering the facts or evidence gathered from an investigation, take a decision whether or not to prosecute.”
This regulation, prepared and laid before Parliament by the then-Attorney-General, Gloria Akuffo, was not amended by Parliament. Under Article 11(7) of the Constitution, it matured into law, directly affirming the Special Prosecutor’s prosecutorial discretion and satisfying the strictest requirement for express authorization under Article 88(4).
Dangers of Requiring Repeated Authorization
Insisting on fresh AG approval for every prosecution poses significant risks. It could compromise the OSP’s independence, open the door to political interference, and lead to delays or frustration in corruption cases. This would ultimately defeat the very purpose for which Act 959 was enacted.
The authorization contemplated by the Constitution and implemented through Act 959 and L.I. 2374 is a one-time grant, not a recurring permission slip. Any interpretation demanding repeated approvals fundamentally misunderstands the constitutional framework, frustrates parliamentary intent, and weakens Ghana’s critical fight against corruption.
Looking Ahead
The ongoing legal debate underscores the importance of maintaining the OSP’s operational independence. Future court decisions and legislative interpretations will be crucial in clarifying the extent of the OSP’s prosecutorial powers. Observers will be watching to see how this legal interpretation impacts ongoing investigations and prosecutions, and whether it prompts any legislative adjustments to reinforce the OSP’s mandate.
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