I have read Noah Adamtey’s suit (Noah Ephraim Tetteh Adamtey v Attorney General, Suit No. J1/3/2026) before the Ghana Supreme Court, challenging the constitutionality of the Office of the Special Prosecutor (OSP) Act. At its core, the suit questions Parliament’s authority to establish, by legislation, an independent Special Prosecutor and to confer on that office certain prosecutorial powers which by constitutional design are vested in the Attorney-General.
Noah’s arguments are carefully crafted and, in many respects, intellectually sound, notwithstanding what I consider to be some gaps in the reasoning. The issues raised are not superficial, and the Supreme Court will be confronted with difficult questions of constitutional interpretation. This commentary sets out my perspective.
Noah frames five questions for the Court’s determination. In my view, however, only three of those questions are consequential. Once resolved, they effectively render the remaining two irrelevant.
They are:
(i) Whether Article 88 of the Constitution vests exclusive prosecutorial authority in the Attorney-General;
(ii) Whether Parliament may, by statute, create a prosecutorial office that is institutionally independent of the Attorney-General’s constitutional control; and
(iii) Whether a statutory delegation of prosecutorial authority may lawfully bind successive Attorneys-General.
Background to the establishment of the OSP
Before turning to the substantive constitutional questions, it is necessary to situate the Office of the Special Prosecutor within the historical and political context that gave rise to its creation; an account the plaintiff treats instead cursorily. This context matters. The Supreme Court’s settled interpretive approach requires it to look beyond bare constitutional text and to consider, holistically, the mischief the contested legislation intended to cure, and broader constitutional objectives that informed the establishment of the OSP.
For more than two decades, civil society organisations and civic-minded Ghanaians have advocated the creation of a specialised body dedicated to investigating and prosecuting corruption. This agitation arose from a birth deficit within the constitutional architecture of the Attorney-General’s office under Article 88. Although prosecutorial authority is, by constitutional design, vested in the AG, the image of a politically appointed AG (a cabinet member) initiating and conducting high-profile criminal prosecutions against rival politicians has, over time, fueled public scepticism and the reasonable apprehension that prosecutorial power may be deployed for partisan ends. Such perceptions, whether justified in some cases or not, have corroded public confidence and in some cases, eroded the rule of law.
After years of sustained advocacy and engagement with political actors, the proposal for an independent anti-corruption prosecutor crystallised into a campaign issue during the 2016 general elections, with the NPP’s Nana Akufo-Addo pledging to establish the Office of the Special Prosecutor upon assuming office. The OSP was consequently established in 2019 as a legislative response to this enduring inherent conflict in the structure of the AG’s office, enhance public confidence, and insulate anti-corruption prosecutions from partisan influence.
The plaintiff does not appear to question the rationale for the OSP’s establishment. Rather, he finds the means of attaining the above-mentioned objective quite questionable.
The consequential issue in this suit
Of the three key questions, the most difficult for the Supreme Court to grapple with is whether a statutory delegation of prosecutorial power may bind future Attorneys-General. It is to that question that I now turn.
While Parliament, by constitutional design, is vested with law-making powers, the legislative process does not begin and end with Parliament. In practice, law-making starts with the executive branch introducing bills to avoid situations where specific bills (read private members’ bills) that could have financial consequences impose unplanned budgetary constraints on the executive. The Office of the Special Prosecutor Bill was not a private member’s bill. It was introduced by the Executive and laid before Parliament by the Attorney-General himself. Parliament’s role in the process was, at least in practical terms, largely formal. This raises an important conceptual question as to who, in substance, delegated the Attorney-General’s prosecutorial power to the OSP? Who, in reality, “carved out” the authority to prosecute corruption-related offences? Was it Parliament acting independently, or was it the Attorney-General, acting through the Executive, who initiated and sponsored the statutory framework that now vests those powers in the OSP?
In fact, under the very terms of the OSP Act, it is the AG who nominates and or appoints the Special Prosecutor where necessary. If the AG delegates certain prosecutorial functions to the OSP in the same manner that s/he delegates to police prosecutors, NACOB officials, etc. under the Law Officers Act, 1974 (NRCD 279), it is difficult to discern where any usurpation of the AG’s exclusive prosecutorial power arises.
On the other hand, a more difficult constitutional question persists. Even if it is accepted that an Attorney-General may lawfully facilitate or support a statutory delegation of certain prosecutorial functions, can one Attorney-General bind all future Attorneys-General in this manner? The Attorney-General is an appointee of the President. It is settled law that the AG’s tenure terminates with that of the appointing President. If prosecutorial authority is the constitutional monopoly of the AG, then it is legitimate to ask whether a delegation effected during one tenure can constitutionally endure beyond it, as the plaintiff forcefully argues.
Comparative analysis complicates the matter further for the OSP. In the US, Independent Counsel or Special Counsel are typically appointed on an ad hoc basis and invariably by the Attorney-General, who is recognised as the ultimate repository of prosecutorial authority. Those appointments are temporary and case-specific, not permanent statutory delegations.
This tension leads me to believe the OSP’s establishment statute could be in trouble.
Here, the Supreme Court has to exercise exceptional care and institutional wisdom by asking the right threshold questions: Do we, as a constitutional democracy, require an Office of the Special Prosecutor? If the answer is yes, then how do we situate such an office within the existing constitutional framework without distorting foundational principles?
In my view, the most coherent path forward lies in the ongoing constitutional review.
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The writer is a lawyer and can be reached via email at [email protected]
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