Introduction

The relationship between the Attorney-General (AG) and the Office of the Special Prosecutor (OSP) in Ghana has been a subject of significant legal and public debate. A recent discussion, led by private legal practitioner Kwame Akuffo, has reignited conversations about the constitutional authority of the AG over the OSP, particularly concerning the power to enter a nolle prosequi—a legal term referring to the discontinuance of criminal prosecutions.

This article delves into the constitutional framework governing these entities, the legal interpretations surrounding their powers, and the implications for Ghana’s anti-corruption efforts.

Key Points

Background

The Role of the Attorney-General in Ghana

The Attorney-General of Ghana is a constitutional officer whose roles and responsibilities are outlined in Article 88 of the 1992 Constitution. The AG is vested with the power to:

• Institute and conduct criminal proceedings.
• Discontinue criminal proceedings (nolle prosequi).
• Supervise prosecutions and provide legal advice to the government.

These powers are central to the AG’s role as the principal legal advisor and prosecutor for the state.

Establishment and Mandate of the OSP

The Office of the Special Prosecutor (OSP) was established in 2017 under the Office of the Special Prosecutor Act, 2017 (Act 959). Its primary mandate is to:

• Investigate and prosecute corruption and corruption-related offenses involving public officials.
• Operate independently to insulate prosecutions from political interference.

The creation of the OSP was a significant step in Ghana’s efforts to combat corruption, providing a specialized body to handle high-profile cases.

Analysis

Constitutional vs. Legislative Powers

Kwame Akuffo’s argument centers on the distinction between constitutional powers and legislative powers. According to Akuffo, the prosecutorial authority granted to the AG under Article 88 is a constitutional provision that cannot be overridden or transferred by subsidiary legislation, such as the OSP Act.

“The idea that the OSP can work entirely on its own, without any direction or intervention from the Attorney-General, for me, is not proper law,” Akuffo stated. He emphasized that while the OSP Act describes the office as independent, this independence must be interpreted within the framework of the Constitution.

The Power of Nolle Prosequi

One of the most contentious issues is the AG’s power to enter a nolle prosequi, effectively discontinuing prosecutions initiated by the OSP. Akuffo argues that this power is inherently tied to the AG’s constitutional role and cannot be stripped away by legislative acts.

“Constitutionally, the Attorney-General is the only person mentioned and authorized with prosecutorial power. A subsidiary legislation cannot hive off constitutional powers and give them to the OSP,” he explained.

Legal and Practical Implications

The debate has significant implications for Ghana’s anti-corruption framework. If the AG retains ultimate authority over the OSP, it could potentially undermine the OSP’s independence, raising concerns about political interference in corruption cases. Conversely, if the OSP operates entirely independently, it may challenge the constitutional authority of the AG.

Akuffo’s perspective suggests a middle ground: the OSP should function as an appendage of the AG’s office, supporting its mandate while operating under the AG’s constitutional authority.

Practical Advice

For Legal Practitioners

Legal practitioners involved in corruption cases should be aware of the evolving interpretations of the AG’s and OSP’s powers. Key considerations include:

• Constitutional Hierarchy: Always interpret the OSP Act in harmony with the Constitution, recognizing the AG’s superior authority.
• Nolle Prosequi: Be prepared for the possibility of the AG discontinuing prosecutions, even those initiated by the OSP.
• Legal Challenges: Consider potential legal challenges to the OSP’s independence, particularly in high-profile cases.

For Policymakers

Policymakers should consider the following steps to clarify the relationship between the AG and the OSP:

• Constitutional Amendments: If the goal is to grant the OSP full independence, a constitutional amendment may be necessary to explicitly transfer prosecutorial powers.
• Legislative Clarity: Amend the OSP Act to clearly define the scope of the OSP’s independence and its relationship with the AG.
• Public Transparency: Ensure transparency in the AG’s use of nolle prosequi to maintain public trust in the anti-corruption framework.

Frequently Asked Questions (FAQ)

What is a nolle prosequi?

A nolle prosequi is a legal term referring to the discontinuance of criminal prosecutions by the Attorney-General. It is a discretionary power that allows the AG to halt proceedings in the interest of justice or public policy.

Can the OSP operate independently of the AG?

While the OSP was established to operate independently, its authority is derived from the Constitution, which vests prosecutorial powers in the AG. Therefore, the OSP’s independence is subject to the AG’s constitutional authority.

What are the implications of the AG’s authority over the OSP?

The AG’s authority over the OSP ensures that prosecutorial powers remain centralized and constitutionally grounded. However, it also raises concerns about potential political interference in corruption cases, which the OSP was designed to mitigate.

How can the relationship between the AG and OSP be clarified?

Clarifying the relationship may require constitutional amendments or legislative reforms to explicitly define the scope of the OSP’s independence and the AG’s oversight role.

Conclusion

The debate over the Attorney-General’s constitutional authority over the Office of the Special Prosecutor highlights the complexities of Ghana’s legal framework in combating corruption. While the OSP was established to operate independently, its powers are ultimately subject to the constitutional authority of the AG, particularly concerning the power to enter a nolle prosequi.

Kwame Akuffo’s insights underscore the need for a balanced interpretation of the law, ensuring that the OSP’s mandate is supported by the AG’s constitutional powers without compromising its independence. As Ghana continues to strengthen its anti-corruption efforts, clarifying the legal relationship between these entities will be crucial for maintaining public trust and ensuring effective prosecutions.