Private legal practitioner Kwame Akuffo has argued that attempts to vest prosecutorial powers of the Attorney-General in the Office of the Special Prosecutor (OSP) without amending Article 88 of the 1992 Constitution are constitutionally flawed and untenable.
Speaking on JoyNews’ Newsfile, Mr Akuffo maintained that while the OSP was created to independently investigate and prosecute corruption-related offences, its mandate cannot lawfully override or diminish the constitutional authority of the Attorney-General.
According to him, Article 88 clearly vests prosecutorial power in the Attorney-General, making it unconstitutional for a subsidiary legislation to “hive off” any portion of that authority and assign it to another body without a formal constitutional amendment.
“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,” he said. “Constitutionally, the Attorney-General is the only person mentioned and authorised with prosecutorial power. A subsidiary legislation cannot hive off constitutional powers and give them to the OSP.”
Mr Akuffo explained that although the Office of the Special Prosecutor Act describes the OSP as independent, such independence must be interpreted in harmony with the Constitution, not in isolation from it. In his view, any effort to transfer aspects of the Attorney-General’s prosecutorial authority to the OSP, without altering the main constitutional provision, was inherently defective.
“I was one of those who said it was unconstitutional to the extent that it sought to hive off Article 88 powers,” he stated. “You cannot take part of the Constitution and give it to a third party through a subordinate law.”
He stressed that the Attorney-General’s constitutional powers, including the authority to supervise prosecutions and enter a nolle prosequi, remain intact and applicable to cases initiated by the OSP.
Mr Akuffo further argued that the Attorney-General’s ability to issue fiats, oversee prosecutions, and intervene in related legal processes demonstrates the AG’s superior constitutional standing.
“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,” he said. “The OSP is a working tool—an appendage of the Attorney-General’s office.”
The Office of the Special Prosecutor was established in 2017 as part of Ghana’s anti-corruption framework, with a mandate to investigate and prosecute corruption and corruption-related offences involving public officers. Its independence has frequently been highlighted as key to shielding prosecutions from political influence, a position that continues to generate legal and public debate.
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