Commentary on Noah Adamtey v Attorney General: A constitutional problem to Office of Special Prosecutor

Introduction

The constitutionality of Ghana’s Office of the Special Prosecutor (OSP) is currently under intense scrutiny following the filing of a suit by Noah Adamtey. In the case of Noah Ephraim Tetteh Adamtey v Attorney General, Suit No. J1/3/2026, currently before the Supreme Court, the plaintiff challenges the legal foundation of the OSP Act. At the heart of this legal battle is a fundamental question regarding the separation of powers and the specific interpretation of Article 88 of the 1992 Constitution. The suit questions Parliament’s authority to establish an independent prosecutorial body and vest it with powers that the Constitution seemingly reserves for the Attorney-General.

This commentary provides a pedagogical analysis of the constitutional issues at play. While Noah Adamtey’s arguments are intellectually crafted, they highlight potential gaps in the current legislative framework. The Supreme Court is poised to face tricky questions of constitutional interpretation that could reshape the landscape of anti-corruption enforcement in Ghana. This article dissects the core arguments, the historical context of the OSP, and the profound legal implications of the case.

Key Points

Background

To fully appreciate the gravity of the Noah Adamtey v Attorney General suit, one must look beyond the bare text of the Constitution and understand the historical and political context that birthed the Office of the Special Prosecutor. The Supreme Court’s interpretive philosophy often requires looking at the “mischief” a law intends to remedy. In this case, the “mischief” is the long-standing public perception of conflict of interest within the Attorney-General’s office.

The Genesis of the OSP

For over two decades prior to the establishment of the OSP, civil society organizations and anti-corruption advocates in Ghana campaigned for a specialized agency dedicated to the investigation and prosecution of corruption. The agitation stemmed from a perceived structural deficit in the Attorney-General’s office under Article 88. Although the Constitution vests prosecutorial authority in the AG, the reality is that the Attorney-General is a political appointee and a member of the Cabinet.

The public has often harbored skepticism regarding the ability of a political AG to prosecute high-profile cases against rivals from opposing political parties. Whether justified or not, the fear that prosecutorial power could be deployed for partisan protection rather than the rule of law eroded public confidence in the justice system.

During the 2016 general elections, the proposal for an independent anti-corruption prosecutor became a central campaign promise of the New Patriotic Party (NPP), spearheaded by Nana Akufo-Addo. Upon assuming office, this promise materialized into the Office of the Special Prosecutor Act, 2018 (Act 959). The OSP was established in 2019 as a legislative response to the inherent conflict in the AG’s office, aiming to insulate high-level corruption prosecutions from partisan influence.

Analysis

The legal merit of the suit rests on the interpretation of the Constitution vis-à-vis the OSP Act. While the plaintiff does not necessarily dispute the moral or political necessity of the OSP, he questions the legal mechanism used to achieve it.

The Question of Exclusive Authority

The primary argument rests on the interpretation of Article 88. The plaintiff argues that this article grants the Attorney-General exclusive prosecutorial authority. If the Court accepts this interpretation, it implies that no other body can exercise state prosecution powers unless derived directly from the AG in a subordinate capacity.

However, the counter-argument often relies on the flexibility of the Constitution. Does “vesting” authority in the AG preclude Parliament from creating other statutory bodies to handle specific categories of crime, particularly those deemed critical to national security and economic governance? The OSP Act attempts to carve out a specific niche—corruption—leaving general prosecution with the AG. The Court must determine if this “carving out” is constitutional.

The Dilemma of Binding Successors

Perhaps the most intellectually challenging aspect of this case is the question of whether one Attorney-General can bind his successors. The Attorney-General is an appointee of the President, and their tenure is tied to that of the appointing President. The plaintiff argues that if prosecutorial authority is a constitutional monopoly of the AG, a delegation made during one tenure cannot constitutionally endure beyond it.

This raises a paradox regarding the legislative process. The OSP Bill was not a Private Member’s Bill; it was introduced by the Executive (the government) and laid before Parliament by the Attorney-General himself. In practical terms, Parliament’s role was largely formal. Therefore, the question arises: who actually “delegated” the power? Was it Parliament acting independently, or was it the Attorney-General, acting through the Executive, who initiated the framework that now strips him of certain powers?

If the AG voluntarily supported the creation of the OSP, does he have the legal standing to later challenge it? More importantly, does his support create a permanent statutory reality that binds future AGs who may wish to retract that delegation? In the United States, Special Counsels are appointed ad-hoc by the AG and are temporary. The Ghanaian model, being a permanent statutory body, presents a novel constitutional tension.

Practical Advice

For legal practitioners, students of constitutional law, and stakeholders following this case, the following practical insights are vital:

• Focus on the “Mischief Rule”: When analyzing the judgment, look for how the Court applies the “mischief rule” of interpretation. The Court will likely examine the problem the OSP Act was meant to solve—the perception of political interference in corruption cases.
• Institutional Integrity: The Court is not just deciding on a law; it is deciding on an institution. The “institutional knowledge” of the Court will be tested. They must ask if the OSP is necessary for the functioning of a modern democracy, and if so, how to fit it within the 1992 framework without distorting foundational rules.
• Watch the Threshold Questions: Legal observers should focus on whether the Supreme Court views the OSP as a usurpation of power or a valid evolution of the Attorney-General’s function. The Court may seek a “coherent path” that upholds the OSP while perhaps clarifying its subordination to the AG in specific constitutional senses.

FAQ

Conclusion

The case of Noah Adamtey v Attorney General represents a critical juncture in Ghana’s constitutional democracy. It pits the strict textual interpretation of the Constitution against the pragmatic needs of a society seeking to combat corruption through independent institutions. The arguments raised are not superficial; they touch on the core of how executive power is distributed and whether it can be diluted by statute.

While the plaintiff’s arguments regarding the exclusivity of the AG’s powers are legally sound on a literal reading, the Supreme Court is likely to consider the broader implications. The “mischief” of political bias in prosecution is a reality the Court cannot ignore. The final judgment will likely define the boundaries of legislative power in reshaping the executive branch and determine the permanence of the Office of the Special Prosecutor.

Sources

• The 1992 Constitution of the Republic of Ghana, Article 88.
• Office of the Special Prosecutor Act, 2018 (Act 959).
• Law Officers Act, 1974 (NRCD 279).
• Noah Ephraim Tetteh Adamtey v Attorney General, Suit No. J1/3/2026.