The powers of the Office of the Special Prosecutor (OSP) to prosecute do not contravene Article 88 of the 1992 Constitution, the provision that vests in the Attorney-General (A-G) the exclusive authority to initiate proceedings in the name of the Republic, the Supreme Court has held.
This is because the OSP holds an authorisation from the A-G, in the form of a Legislative Instrument (L.I.), Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), that satisfies the A-G's constitutional delegated authority.
The court held that the L. I. ought to exist until the A-G decides to amend or revoke it.
As a result, the court, in its unanimous decision, held that since the A-G holds exclusive prosecutorial authority, the OSP can prosecute, but the A-G can, at anytime, discontinue the prosecutions initiated by the OSP.
All prosecutions and all convictions, as well as freezing orders secured by the OSP, are to remain valid.
The seven-member panel of the apex court had the Chief Justice, Paul Baffoe-Bonnie, presiding.
On December 12, 2025, Noah E. Adamtey invoked the exclusive original jurisdiction of the Supreme Court to interpret the Constitution by filing a suit for the court to declare the exercise of prosecutorial powers by the OSP as unconstitutional.
He was seeking, among other reliefs, a declaration that the OSP Act, 2017 (Act 959) is unconstitutional to the extent that it confers “original or insulated prosecutorial authority on the Office of the Special Prosecutor, is inconsistent and in contravention of Articles 1(2), 88(3), (4), 93 (2) and 296 of the Constitution and is, therefore, null, void and of no effect”.
Again, he was seeking a declaration that “sections 3(3) and 4 of Act 959, in purporting to make the Office of the Special Prosecutor independent of the Attorney-General in the initiation, conduct and termination of prosecutions, violate the Constitution.”
A-G's position
In his statement of case, the A-G argued that Article 88 (3) of the 1992 Constitution solely vested prosecutorial powers in the A-G alone, and therefore Parliament acted unconstitutionally by passing the OSP Act, 2017 (Act 959), which made it compulsory for the A-G to delegate part of its prosecutorial powers to the OSP.
Article 88 (3) of the 1992 Constitution stipulates that, “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal cases”, while Article 88 (4) provides that: “All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any person authorised by him in accordance with law”.
Again, the A-G contended that Act 959 had unconstitutionally varied the prosecutorial powers of the OSP in many ways.
“First, it compels the Attorney-General to abandon its constitutional duty to be responsible for the prosecution of all criminal offences — he is, by the terms of the Act, now only responsible for the prosecution of offences which the OSP is not prosecuting.
In May this year, the Supreme Court gave 14 civil society organisations (CSOs) the green light to join the suit.
That was after their lawyer, Kizito Beyuo, had demonstrated that the CSOs were instrumental in the creation of the OSP and, therefore, had expert knowledge that could help the court to determine the issues before it.
The CSOs comprised Transparency International Ghana, the Ghana Anti-Corruption Coalition, the Ghana Centre for Democratic Development (CDD-Ghana), IMANI Africa, Democracy Hub, STAR-Ghana Foundation, NORSAAC, Penplusbytes, Africa Centre for Energy Policy (ACEP), Odekro, A Rocha Ghana, Parliamentary Network Africa, One Ghana Movement, and Africa Education Watch.
Reactions
Reacting to the decision, private legal practitioner, Martin Kpebu, who had earlier petitioned the President for the removal of the OSP, welcomed the decision, describing it as a necessary measure to prevent abuse of prosecutorial powers.
He stated that the decision provided an important check on the authority of the Special Prosecutor.
Mr Kpebu said the judgment should be viewed positively because it introduced greater oversight over the OSP.
“There is no problem; rather, the Supreme Court has solved the problem where the Special Prosecutor is abusing the powers to prosecute people who have issues with his friends, and where the Special Prosecutor is abusing his office to let some people flee.
“This Supreme Court decision now puts the Special Prosecutor in check. We should be very happy,” he added.
Mr Kpebu, however, argued that Ghana should amend its laws to grant the Office of the Special Prosecutor independence, while creating room for accountability and transparency.
“You will not always get an Attorney-General who may have good character like Dr Dominic Ayine.
Our best bet is that let’s amend the Constitution and give the Special Prosecutor’s Office independence, but also accountability and transparency,” he said.
Ruling gives OSP clarity
Mary Awelana Addah, the Executive Director of Ghana Integrity Initiative (GII), the local chapter of Transparency International, said the Supreme Court’s decision affirming the constitutionality of the OSP had provided clarity for the institution to effectively discharge its mandate in the nation’s fight against corruption.
She told the Daily Graphic that the ruling was a major relief for CSOs that had advocated a strengthened OSP with the capacity to independently investigate and prosecute corruption-related offences, Samuel Duodu reports.
Mrs Addah said the affirmation of the OSP’s mandate by the apex court was “very comforting” because it confirmed the CSOs role in the country’s anti-corruption framework.
“For us, that was very comforting. But also, dismissing the case means that they believe that the Office of the Special Prosecutor has a clear role to play in the fight against corruption,” she said.
The anti-graft campaigner added that the GII had consistently advocated the preservation and strengthening of the OSP to enable it to undertake “extensive work in regime and post-regime accountability” in corruption investigations and independent prosecution.
Mrs Addah said the ruling would allow the OSP to operate with greater confidence and reduce dependence on the Attorney-General’s Office in corruption-related prosecutions.
“We have increasingly said that it also provides a basis for confidence and public confidence in the office, that whether it is a high-profile case or a low-profile case, the office now has that delegated power to ensure that it is prosecuting the agenda of corruption,” she said.
She explained that the decision did not question the constitutional authority of the Attorney-General to prosecute under Article 88(4), but rather clarified the independent prosecutorial role assigned to the OSP.
“Article 88(4) is not under question. The authority of the Attorney-General to prosecute is not under question, but the fact that this office has been created and given independence to prosecute independently is what we have been asking,” she said.
Boost
Mrs Addah said the ruling would enable the OSP to focus on investigations, procurement-related corruption cases and preventive measures while reducing the burden on the Attorney-General.
She described the decision as “a good win” for the anti-corruption campaign, adding that the OSP could now move forward without doubts about its existence or mandate.
“The office now has clarity; the office can now focus.
The office no more has the issues of doubting if it has to be in existence or not. That has been clearly set out,” she said.
Constitutional reforms
Policy Strategy Advisor at pressure group, Democracy Hub, and private legal practitioner, Oliver Barker-Vormawor, said the decision highlighted the need for constitutional reforms to address gaps in the country's current prosecutorial framework.
Mr Barker-Vormawor, whose organisation was among the civil society groups that filed an amicus curiae application in the case, said the judgment reinforced the Attorney-General’s constitutional oversight over all prosecutions.
He added that the decision also exposed the limitations of the current constitutional arrangement and strengthened the case for reforms aimed at creating more independent mechanisms for investigating and prosecuting corruption-related offences.
“The court has given us a clear direction that we need constitutional reform to fix some of the issues that have come up.
“There is an appetite across the board for an independent process in investigating these issues beyond the Attorney-General, and I hope we carry that forward into substantive reforms,” he said.
