Supreme Court ruling confirms Attorney-General’s control over OSP prosecutions

A legal practitioner, George Anti, has described the Supreme Court’s decision on the prosecutorial powers of the Office of the Special Prosecutor (OSP) as a “very sound ruling”, saying it has clarified the constitutional relationship between the OSP and the Attorney-General.

Speaking on Nhyira FM’s Kro Yi Mu Nsem programme on Friday, July 31, Mr Anti said the judgement strengthened the OSP’s role in tackling corruption while making clear that its prosecutorial authority remains subject to the 1992 Constitution.

The Supreme Court, sitting as a seven-member panel, unanimously upheld the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) on Wednesday, July 29.

The Court ruled that Parliament acted within its constitutional powers when it established the OSP to investigate and prosecute corruption and corruption-related offences.

However, the judgement also reaffirmed the Attorney-General’s position as the ultimate authority over all state prosecutions. The Attorney-General retains the power to take over a case being handled by the OSP, continue proceedings, or end them by entering a nolle prosequi.

Mr Anti said that limitation is rooted in Article 88 of the 1992 Constitution, which places prosecutorial authority in the hands of the Attorney-General.

He explained that although the OSP has the power to prosecute, it is not constitutionally independent of the Attorney-General’s office. Instead, it exercises those powers as an agent of the Attorney-General.

That arrangement, he said, was designed to combine operational independence in corruption investigations with constitutional accountability in criminal prosecutions.

According to Mr Anti, the framers of the Constitution did not intend to create a completely separate prosecutorial institution outside the Office of the Attorney-General.

“Per the Supreme Court ruling, the Attorney-General can delegate some prosecutorial powers to other actors, including the OSP. The AG can also withdraw those powers at any time,” he told host Nana Ampratwum.

He added that establishing more institutions to investigate corruption, bribery and other criminal offences would not alter the constitutional position unless Article 88 itself was amended.

“Until an amendment is made to the 1992 Constitution, specifically Article 88, which states that all criminal prosecutions in the country shall be initiated at the instance of the Attorney-General, it does not matter how many operational institutions to fight corruption, bribery and other criminal activities are established. Nothing will change because the power to initiate criminal prosecutions is vested 100% in the Attorney-General,” he argued.

Mr Anti said the ruling should bring an end to uncertainty over possible clashes between the OSP and the Attorney-General’s office.

The OSP was created in 2017 to give the fight against corruption greater focus and speed. Since its establishment, concerns have been raised about whether its mandate overlaps with, or weakens, the Attorney-General’s constitutional responsibilities.

Following the Supreme Court’s decision, the OSP can continue to investigate and prosecute corruption-related cases, but it will do so within the oversight framework established by the Attorney-General’s constitutional powers.

Mr Anti also commented on the Supreme Court’s ruling concerning the delegate system, raising concerns about the different arrangements used by political parties for their internal elections.

He said the 1992 Constitution, the Political Parties Act and other relevant laws establish common principles for national elections and political party elections, particularly through provisions protecting freedom of association.

For that reason, he believes the judgement represents progress because it is consistent with the Constitution.

“If you look at the ruling purely from a legal standpoint, it is a very sound ruling,” he said. “On the point of law, the same Constitution that governs national elections also governs the organisation of political parties under the freedom of association provisions and the Political Parties Act. So the question is, why do we have different systems for electing a person who will go on to contest and become President?” he quizzed.