Introduction

The constitutional debate surrounding the transfer of prosecutorial powers from the Attorney-General (AG) to the Office of the Special Prosecutor (OSP) in Ghana has reignited legal discussions. At the heart of this debate is Article 88 of the 1992 Constitution, which explicitly vests prosecutorial authority in the AG. Legal practitioner Kwame Akuffo argues that any attempt to reassign these powers to the OSP without a constitutional amendment is unconstitutional and legally flawed.

This article examines the legal implications, constitutional framework, and practical consequences of such a transfer, while addressing frequently asked questions and providing actionable insights for legal practitioners, policymakers, and the public.

Key Points

Background

The Role of the Attorney-General Under Article 88

Article 88 of Ghana’s 1992 Constitution states:

“The Attorney-General shall be responsible for the institution and conduct of all prosecutions of criminal offenses.”

This provision establishes the AG as the sole constitutional authority for prosecutorial decisions in Ghana. The AG’s powers include:

• Initiating criminal prosecutions.
• Issuing fiats (authorizations) for prosecutions.
• Entering a nolle prosequi to discontinue prosecutions.
• Overseeing all criminal proceedings on behalf of the state.

Establishment and Mandate of the Office of the Special Prosecutor (OSP)

The Office of the Special Prosecutor Act, 2017 (Act 959) created the OSP to:

• Investigate and prosecute corruption and corruption-related offenses involving public officials.
• Operate independently to shield prosecutions from political interference.
• Recover proceeds of corruption.

The OSP’s establishment was a landmark anti-corruption measure, aimed at strengthening accountability in Ghana’s public sector. However, its relationship with the AG’s constitutional powers has sparked legal debates.

Analysis: Constitutional and Legal Perspectives

Can the OSP Assume Prosecutorial Powers Without Amending Article 88?

Kwame Akuffo’s argument hinges on the hierarchy of laws in Ghana’s legal system:

1. The Constitution is the supreme law (Article 1(2) of the 1992 Constitution).
2. Subsidiary legislation (e.g., Act 959) cannot override constitutional provisions.
3. Article 88 explicitly assigns prosecutorial powers to the AG, making it non-delegable without a constitutional amendment.

Akuffo asserts:

“A subsidiary legislation cannot hive off constitutional powers and give them to the OSP. The idea that the OSP can operate entirely on its own, without any direction or intervention from the Attorney-General, is not proper law.”

The OSP’s Independence vs. Constitutional Constraints

While Act 959 describes the OSP as an independent body, Akuffo argues that this independence must be interpreted within the constitutional framework. Key considerations include:

• Constitutional Supremacy: The OSP cannot assume powers that contradict Article 88.
• AG’s Oversight Role: The AG retains the authority to intervene in prosecutions, including those initiated by the OSP.
• Nolle Prosequi: The AG can discontinue any prosecution, including OSP-led cases.

Akuffo clarifies:

“The OSP is a working tool—an appendage of the Attorney-General’s office. The law should be interpreted in such a way that the Attorney-General supports the OSP, but the OSP is not on the same constitutional level as the Attorney-General.”

Legal Precedents and Comparative Analysis

Ghana’s legal system follows the common law tradition, where constitutional provisions take precedence over statutory laws. Comparative examples include:

• South Africa: The National Prosecuting Authority (NPA) operates under the Constitution, with clear delineation of powers.
• Nigeria: The Economic and Financial Crimes Commission (EFCC) works alongside the Attorney-General but does not supersede constitutional powers.

In Ghana, the Supreme Court has consistently upheld the supremacy of the Constitution in cases involving conflicts between constitutional and statutory provisions.

Practical Advice for Stakeholders

For Legal Practitioners

• Constitutional Compliance: Ensure that any prosecutorial actions by the OSP align with Article 88.
• AG’s Fiat: Verify whether the AG has authorized prosecutions initiated by the OSP.
• Nolle Prosequi: Be prepared for potential AG intervention in OSP-led cases.

For Policymakers

• Constitutional Amendment: If the goal is to grant the OSP independent prosecutorial powers, consider amending Article 88.
• Clarify OSP’s Role: Define the OSP’s relationship with the AG to avoid legal ambiguities.
• Public Transparency: Ensure that any changes to prosecutorial powers are communicated clearly to the public.

For the Public

• Understand Your Rights: Be aware of the constitutional framework governing prosecutions.
• Monitor Legal Developments: Stay informed about changes in prosecutorial powers and their implications.
• Engage in Civic Discussions: Participate in debates on anti-corruption measures and constitutional reforms.

Frequently Asked Questions (FAQ)

1. What does Article 88 of Ghana’s Constitution say about prosecutorial powers?

Article 88 states that the Attorney-General is responsible for the institution and conduct of all criminal prosecutions. This means the AG holds exclusive constitutional authority over prosecutions in Ghana.

2. Can the Office of the Special Prosecutor (OSP) prosecute cases independently?

While the OSP Act (Act 959) grants the OSP investigative and prosecutorial powers, these must align with Article 88. The AG retains oversight and can intervene in OSP-led prosecutions.

3. Why is transferring AG’s powers to the OSP without amending Article 88 considered unconstitutional?

Because subsidiary legislation (like Act 959) cannot override the Constitution. Article 88 explicitly assigns prosecutorial powers to the AG, and any transfer of these powers requires a constitutional amendment.

4. What is a nolle prosequi, and how does it affect OSP cases?

A nolle prosequi is a legal notice issued by the AG to discontinue a prosecution. Even in OSP-led cases, the AG can issue a nolle prosequi, effectively halting the proceedings.

5. What are the implications of this debate for Ghana’s anti-corruption efforts?

The debate highlights the need for constitutional clarity in anti-corruption measures. Without amending Article 88, the OSP’s independence may be limited, potentially affecting its ability to prosecute high-profile corruption cases without political interference.

Conclusion

The debate over whether the Office of the Special Prosecutor (OSP) can assume prosecutorial powers from the Attorney-General (AG) without amending Article 88 of Ghana’s Constitution is both legally complex and highly consequential. Kwame Akuffo’s argument underscores the supremacy of the Constitution and the limits of subsidiary legislation in redefining constitutional powers.

For Ghana’s anti-corruption framework to function effectively, policymakers must address this constitutional ambiguity. Whether through a constitutional amendment or clearer legal definitions, resolving this issue is essential for ensuring that the OSP can fulfill its mandate without undermining the AG’s constitutional authority.

As the legal and public discourse continues, stakeholders—including legal practitioners, policymakers, and citizens—must engage thoughtfully to balance constitutional integrity with the need for independent anti-corruption prosecutions.

Sources

• Constitution of Ghana (1992) – Official Text
• Office of the Special Prosecutor Act, 2017 (Act 959) – OSP Official Website
• Interview with Kwame Akuffo – PleasureNews’ Newsfile (December 15, 2025)
• Supreme Court of Ghana Rulings – Judicial Service of Ghana