Ghana's Deputy Attorney-General, Dr. Justice Srem-Sai, has declared that amending Article 88 of the 1992 Constitution is essential to create an independent prosecutorial authority. This constitutional change is required to grant the Office of the Special Prosecutor (OSP) full independent prosecutorial powers. His statement underscores a significant legal and governance challenge facing Ghana's anti-corruption framework.
Dr. Srem-Sai explained that the Constitution explicitly vests all prosecutorial authority in the Attorney-General. This makes it impossible for Parliament to establish an independent prosecutorial body through ordinary legislation alone. The Deputy AG's remarks follow a recent High Court ruling concerning the OSP, which has intensified discussions about the body's ability to independently prosecute criminal cases.
This debate is central to Ghana's ongoing efforts to combat corruption and strengthen its rule of law institutions. The current constitutional arrangement, which centralises prosecutorial power, has long been a point of contention for those advocating for greater independence in anti-corruption efforts. Amending Article 88 would represent a fundamental shift in how Ghana approaches the prosecution of financial crimes and public sector corruption.
Speaking on 'The Law with Samson Lardy Anyenini' on July 26, Dr. Srem-Sai confirmed that constitutional lawyers, including past and present Special Prosecutors, share this view. He stated, "Every lawyer that I've spoken with and that I've heard hold one position, and this includes even the persons who have occupied and are still occupying the office of the Special Prosecutor. They've all held one position, and the position is simple: to be able to create an independent prosecutorial authority in Ghana, you need to amend Article 88."
The immediate implication is that the OSP's current powers remain constrained by the existing constitutional framework. Without an amendment to Article 88, any attempts to grant the OSP full independence through ordinary legislation, such as the OSP Act, will likely face legal challenges. This situation creates uncertainty for the OSP's effectiveness and its role in Ghana's fight against corruption. Decision-makers will need to consider the political will and procedural complexities involved in initiating a constitutional amendment.
Dr. Srem-Sai stressed that the Office of the Special Prosecutor Act, enacted under Article 106, cannot override constitutional provisions. He maintained that constitutional amendments must follow specific procedures outlined in the Constitution, not through ordinary parliamentary acts. This legal distinction is crucial for understanding the limitations of the OSP's current mandate.
The Deputy AG further argued that successive constitutional review processes have consistently acknowledged the need to follow prescribed amendment procedures for entrenched constitutional provisions. He highlighted that the OSP Act, as ordinary legislation, cannot confer powers inconsistent with Article 88. This legal interpretation suggests that the OSP's independence is currently limited by the supreme law of the land.
A Supreme Court ruling on the OSP's prosecutorial powers is expected on July 29, 2026. This case, brought by private legal practitioner Noah Adamtey, challenges the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959). Mr. Adamtey argues that the Act unlawfully grants the OSP independent prosecutorial authority, violating Articles 1(2), 88(3) and (4), 93(2), and 296 of the 1992 Constitution. The Attorney-General's representation in this case aligns with Dr. Srem-Sai's position, asserting that Article 88(3) vests exclusive prosecutorial authority in the Attorney-General.
The Supreme Court's decision will significantly impact the OSP's operational capabilities and Ghana's anti-corruption landscape. It will clarify the legal boundaries of the OSP's powers and potentially reinforce the necessity of a constitutional amendment. The involvement of 14 civil society organisations as interested parties in the Supreme Court case further highlights the public interest and importance of this legal battle for good governance in Ghana.