Introduction: A Landmark Ruling on Institutional Standing

The Supreme Court of Ghana has delivered a unanimous ruling dismissing the Office of the Special Prosecutor (OSP)‘s request to intervene in a constitutional challenge that could redefine its legal authority. This decision underscores critical questions about institutional standing, separation of powers, and the scope of judicial review in Ghana’s legal system.

At the heart of the dispute is whether the OSP—a statutory body—has the legal right to defend its own mandate when its foundational law, the Office of the Special Prosecutor Act, 2017 (Act 959), faces constitutional scrutiny. The case, filed by legal scholar Noah Ephraim Tetteh Adamtey, targets Sections 4 and 33 of Act 959, which grant the OSP its independent prosecutorial powers and authority to seize “tainted assets.”

Key Points: What the Supreme Court Decided

• Unanimous Rejection: The Supreme Court ruled that the OSP lacks standing to join the constitutional case as a party.
• No Proprietary Interest: The court held that the OSP, as a creation of Parliament, cannot assert an independent legal interest in defending Act 959.
• Attorney-General’s Role: The Attorney-General (AG) remains the sole defender of the law’s constitutionality.
• Core Powers at Stake: The lawsuit challenges the OSP’s independence and its authority to investigate and prosecute corruption.
• High-Stakes Context: The ruling comes amid the OSP’s high-profile prosecutions, including the case against former Finance Minister Ken Ofori-Atta.

Background: The Constitutional Challenge Explained

The Plaintiff’s Case: Noah Ephraim Tetteh Adamtey

Noah Ephraim Tetteh Adamtey, a private citizen and legal scholar, filed the constitutional suit to challenge the validity of Sections 4 and 33 of Act 959. His arguments center on whether these provisions:

• Violate the separation of powers by granting the OSP overbroad authority.
• Infringe on due process rights in asset seizure procedures.
• Conflict with existing constitutional safeguards for accused persons.

Adamtey has a history of public interest litigation, including past challenges to the Electoral Commission of Ghana.

The OSP’s Argument for Intervention

The OSP, represented by its Director of Prosecutions, Dr. Isidore Tufuor, argued that:

• The lawsuit directly threatens its operational mandate.
• The OSP has a “direct and substantial interest” in the outcome.
• Excluding the OSP would leave its institutional voice unheard in a case that could dismantle its powers.

Dr. Tufuor emphasized that while the suit names the State as the defendant, its real target is the OSP’s autonomy.

The State’s Opposition: Attorney-General’s Stance

The Deputy Attorney-General, Dr. Justice Srem-Sai, countered that:

• The OSP is a statutory body with no independent legal personality to contest its own creation.
• Parliament, as the creator of the OSP, must bear responsibility for defending Act 959.
• Allowing the OSP to intervene would set a dangerous precedent for other agencies seeking to litigate their own existence.

Dr. Srem-Sai’s position aligns with traditional common law principles on standing, which typically limit participation to parties with a direct legal interest.

Analysis: Legal and Institutional Implications

1. Standing Doctrine in Ghanaian Law

The Supreme Court’s ruling reinforces Ghana’s strict standing requirements. Under Ghanaian jurisprudence, a party must demonstrate:

• Personal or proprietary interest in the subject matter.
• Direct injury from the challenged law or action.
• No adequate representation by existing parties (here, the AG).

The OSP failed to meet these criteria, as the court viewed it as an extension of the executive branch rather than an independent entity.

2. Separation of Powers in Question

The case highlights tensions between:

• Judicial review (the court’s power to invalidate laws).
• Legislative supremacy (Parliament’s authority to create and define agencies).
• Executive independence (the OSP’s statutory mandate to operate without political interference).

Critics argue that denying the OSP standing weakens its independence, while supporters claim it preserves constitutional order.

3. Impact on Anti-Corruption Efforts

The OSP was established to combat corruption and financial crimes with unprecedented autonomy. If Sections 4 and 33 are struck down:

• The OSP could lose its power to investigate without executive approval.
• Asset seizure procedures may require judicial pre-approval, slowing investigations.
• The office’s deterrent effect on corruption could diminish.

This ruling occurs as the OSP prosecutes high-profile figures, including former officials, making the stakes exceptionally high.

Practical Advice: What This Means for Stakeholders

For the Office of the Special Prosecutor

• Strategic Litigation: The OSP may need to collaborate more closely with the AG in future constitutional defenses.
• Public Advocacy: Since direct legal intervention is limited, the OSP could leverage public and media engagement to defend its mandate.
• Legislative Lobbying: Proactively working with Parliament to amend Act 959 could preempt judicial invalidation.

For Legal Practitioners

• Standing Arguments: Lawyers should carefully assess whether statutory bodies can claim independent standing in constitutional cases.
• Alternative Avenues: Explore amicus curiae briefs (friend-of-the-court submissions) as a way for agencies to influence proceedings.

For Citizens and Civil Society

• Monitor Developments: Track the substantive case’s progress, as it may reshape anti-corruption frameworks.
• Advocate for Transparency: Push for public hearings or parliamentary debates on Act 959’s future.

FAQ: Common Questions About the Ruling

Q1: Why can’t the OSP defend itself in court?

The Supreme Court ruled that the OSP, as a statutory creation, lacks the independent legal personality required to participate in constitutional challenges to its own enabling law. The Attorney-General is deemed the appropriate defender.

Q2: What happens if Sections 4 and 33 of Act 959 are struck down?

The OSP could lose its core powers, including the ability to investigate corruption independently and seize assets without prior judicial approval. This may cripple its effectiveness.

Q3: Can the OSP appeal this ruling?

No. The Supreme Court is Ghana’s highest court, and its rulings are final and binding. The OSP’s only recourse is to work through the AG or seek legislative amendments.

Q4: How does this affect ongoing OSP cases, like Ken Ofori-Atta’s prosecution?

The ruling does not directly impact pending cases, but if the substantive challenge succeeds, future prosecutions could face legal uncertainty or require new procedural safeguards.

Q5: What is the “Operation Recover All Loot (ORAL)” initiative mentioned in the case?

ORAL is a government initiative led by Dr. Justice Srem-Sai to recover misappropriated state funds. Its mention highlights the political sensitivity surrounding the OSP’s role in anti-corruption efforts.

Conclusion: A Defining Moment for Ghana’s Legal Framework

The Supreme Court’s decision to exclude the OSP from this constitutional challenge is more than a procedural setback—it is a landmark ruling on the limits of institutional autonomy in Ghana. By reinforcing the Attorney-General’s gatekeeping role, the court has:

• Clarified the boundaries of standing for statutory bodies.
• Reaffirmed the separation of powers in constitutional litigation.
• Set the stage for a high-stakes debate on the future of Ghana’s anti-corruption architecture.

As the substantive case proceeds, all eyes will be on whether Act 959 survives judicial scrutiny—and what that means for the fight against corruption in Ghana. For now, the OSP must navigate this legal and political minefield without the direct judicial voice it sought.

Sources and Further Reading

• Office of the Special Prosecutor Act, 2017 (Act 959) – Official OSP Website
• Supreme Court of Ghana Rulings – Judicial Service of Ghana
• Noah Ephraim Tetteh Adamtey’s Legal Challenges – Ghana Bar Association Records
• Operation Recover All Loot (ORAL) – Ministry of Justice Press Releases
• Ken Ofori-Atta Prosecution Updates – Daily Graphic

Disclaimer: The views expressed in this article are for informational purposes only and do not constitute legal advice. For specific legal guidance, consult a qualified attorney.