Ghana's Deputy Attorney-General and Minister for Justice, Dr. Justice Srem-Sai, has firmly stated that Parliament cannot transfer the Attorney-General's constitutionally mandated prosecutorial powers to the Office of the Special Prosecutor (OSP) through ordinary legislation. This declaration highlights a significant constitutional debate regarding the separation of powers and the limits of legislative authority in Ghana.
Dr. Srem-Sai explained that the Constitution explicitly grants the Attorney-General the authority to conduct public prosecutions. This means Parliament lacks the constitutional power to reassign or delegate this authority through an Act of Parliament or a Legislative Instrument (L.I.). His comments were made during an appearance on "The Law with Samson Lardy Anyenini" on JoyNews on Sunday, July 26.
This legal interpretation is crucial for Ghana's governance framework, particularly concerning anti-corruption efforts. The Office of the Special Prosecutor was established to independently investigate and prosecute corruption offenses. However, the extent of its independence from the Attorney-General's office has been a point of contention, impacting the effectiveness and legitimacy of anti-corruption initiatives.
Dr. Srem-Sai rejected arguments that the OSP Act and its regulations effectively authorize the Special Prosecutor to exercise prosecutorial powers independently. He insisted that Parliament cannot delegate powers it does not possess. "Parliament has no power to prosecute, and if you have no power to prosecute, you cannot delegate that power to anybody," he emphasized. He clarified that both the OSP Act and its accompanying L.I. derive their authority from Parliament and cannot alter constitutional allocations of power.
The Deputy Attorney-General's remarks come ahead of a critical Supreme Court judgment scheduled for July 29, 2026. The Court will deliver its verdict in a suit challenging the prosecutorial powers of the OSP. Private legal practitioner Noah Adamtey initiated the case, arguing that the Office of the Special Prosecutor Act, 2017 (Act 959), unlawfully grants the OSP independent prosecutorial authority. Mr. Adamtey contends that sections 3(3) and 4 of Act 959, which make the OSP independent of the Attorney-General, violate Articles 1(2), 88(3) and (4), 93(2), and 296 of the 1992 Constitution.
The Supreme Court, in January this year, rejected an application by the OSP to join the case as an interested party. However, it accepted an application from 14 civil society organizations, including Transparency International Ghana and CDD-Ghana, to join the proceedings. These organizations argue that their expertise and commitment to constitutionalism and anti-corruption are vital to the court's deliberations. Dr. Srem-Sai stressed that while strengthening the OSP is a worthy goal, constitutional safeguards must not be circumvented.
The upcoming Supreme Court ruling will significantly impact the operational independence of the OSP and the broader fight against corruption in Ghana. A ruling in favor of Mr. Adamtey could redefine the OSP's powers, potentially requiring legislative amendments or a constitutional review. Conversely, a ruling upholding the OSP's current powers would solidify its role as an independent prosecutorial body. This decision will be closely watched by legal experts, civil society, and international observers concerned with good governance and the rule of law in Ghana.