Ghana's Deputy Attorney-General, Dr. Justice Srem-Sai, has affirmed the High Court's recent decision that the Office of the Special Prosecutor (OSP) Act cannot override the 1992 Constitution. He stated that the OSP Act is an ordinary Act of Parliament. This means it cannot change the constitutional powers given exclusively to the Attorney-General under Article 88 of the 1992 Constitution.
Dr. Srem-Sai made these remarks on JoyNews on Sunday, July 26. He argued that the judge had no basis to conclude that the OSP Act amended the Constitution. He stressed that the OSP Act is ordinary legislation passed under Article 106. It was not passed using the specific procedures for constitutional amendments.
Ghana's Constitution has a clear process for changing its provisions. No ordinary law can bypass this process. Dr. Srem-Sai highlighted that constitutional review commissions, active since 2010, confirm this understanding. They show that constitutional provisions can only be altered through the specific amendment process outlined in the Constitution.
The Supreme Court has consistently ruled that Parliament cannot amend constitutional provisions through ordinary legislation. Dr. Srem-Sai referenced several past cases where the apex court was clear on this point. He rejected any suggestion that the High Court's conclusion was incorrect. He stated it is difficult to see how any other conclusion could be reached, given the OSP Act is not a constitutional amendment.
The Constitution remains the supreme law of Ghana. Any law that seems inconsistent with its provisions cannot be seen as having amended the Constitution. This is true unless Parliament follows the specific constitutional amendment process. This legal position has significant implications for the powers of the OSP.
The High Court's ruling has sparked wide discussion among legal experts and governance specialists. They are debating the constitutional limits of the OSP's power to prosecute cases. They are also examining its relationship with the Attorney-General's Office. This discussion is crucial for the future of anti-corruption efforts in Ghana.
The Supreme Court will deliver its judgment on July 29, 2026, in a case challenging the OSP's prosecutorial powers. Private legal practitioner Noah Adamtey initiated this suit. He argues that the Office of the Special Prosecutor Act, 2017 (Act 959), unlawfully grants the OSP independent prosecutorial authority. Mr. Adamtey seeks a declaration that certain provisions of Act 959 are inconsistent with Articles 1 (2), 88 (3) and (4), 93 (2), and 296 of the 1992 Constitution. He contends these provisions are therefore null and void.
He further argues that Sections 3 (3) and 4 of Act 959, which make the OSP independent of the Attorney-General in initiating and conducting prosecutions, violate the Constitution. The Attorney-General, represented by Dr. Justice Srem-Sai, maintains that Article 88 (3) vests prosecutorial authority solely in the Attorney-General. He argues that Parliament acted unconstitutionally by requiring the Attorney-General to delegate part of these powers to the OSP. This case will clarify the boundaries of prosecutorial power in Ghana.