Legal analysis showing that AG authorisation was already granted and does not require renewal

The recent High Court decision suggesting that the Office of the Special Prosecutor (OSP) requires fresh authorization from the Attorney-General (AG) each time it seeks to prosecute a criminal matter has triggered intense legal and public debate. Beyond the immediate implications for ongoing prosecutions, the decision raises a fundamental constitutional question: Does the OSP possess the legal authority to independently prosecute corruption-related offences, or must it repeatedly seek the approval of the AG before initiating criminal proceedings?

This issue goes to the heart of Ghana’s anti-corruption architecture. The OSP was deliberately established as an independent institution to investigate and prosecute corruption-related offences without undue political interference. To now suggest that the Office must continually return to the AG for prosecutorial approval would not only undermine the legislative purpose behind its creation but also weaken public confidence in the fight against corruption.

A proper reading of the 1992 Constitution, the Office of the Special Prosecutor Act, 2017 (Act 959), the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), and established principles of statutory interpretation leads to one unavoidable conclusion: the AG’s authorization contemplated under Article 88(4) of the Constitution has already been granted through law, and that authorization is not one that must be renewed on a case-by-case basis.

1. Does the 1992 Constitution grant authority to the Attorney General to delegate his/her prosecutorial powers under Article 88?

The answer is an unequivocal yes. Article 88(4), provides as follows: “All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or ANY OTHER PERSON AUTHORIZED BY HIM…”

This constitutional provision clearly contemplates that persons other than the Attorney-General may prosecute criminal offences on behalf of the Republic, provided such persons are properly authorized. The Constitution therefore does not confer an exclusive monopoly of prosecution on the Attorney-General. Rather, it expressly permits delegation.

2. How must that authorization from the AG be given?

Article 88(4) further provides the answer. It states that such authorization must be granted “in accordance with ANY LAW.” This means that the authorization cannot be arbitrary, informal, or exercised outside legal authority. It must be rooted in law.

3. Can the Attorney-General personally enact such a law to delegate his/her prosecutorial powers?

The answer is NO. The legislative powers of Ghana is vested ONLY in PARLIAMENT. Article 93(2) provides as follows: “Subject to the provisions of this Constitution, the legislative power of Ghana shall be VESTED IN PARLIAMENT….”. Therefore, the AG cannot unilaterally create law. The proper constitutional route is for Parliament to enact the law upon sponsorship by the AG.

4. Has the Attorney-General already authorized the OSP through a Law duly passed by Parliament?

The answer is clearly YES.

The Office of the Special Prosecutor Bill, which eventually became OSP Act, 2017 (Act 959), was introduced by the Attorney-General and subsequently passed by Parliament. The long title of Act 959 explicitly states that the law was enacted to establish the OSP to investigate and prosecute corruption and corruption-related offences.

Further, Section 4(2) of Act 959 provides that the Office shall, FOR THE PURPOSES OF THIS ACT, be authorized by the AG…”.

Again, in the Memorandum to the OSP Bill, the AG, as sponsor of the Bill, states that the purpose of the Bill was to vest the Special Prosecutor with the authority and control required to effectively investigate and prosecute cases of corruption and restore public confidence in the justice delivery system and by extension Government.

This is significant. Once Parliament enacted Act 959, the constitutional requirement under Article 88(4) was fulfilled. The Attorney-General had already exercised the authority contemplated under the Constitution through legislation. That authorization was not temporary. It was not conditional. And it was certainly not intended to be repeatedly sought before every prosecution.

5. The Conduct of the Attorney-General Further Confirms the Authorization

Even beyond the express provisions of Act 959, the conduct of successive Attorneys-General demonstrates clear authorization.

The Attorney-General:

* Sponsored the OSP Bill in Parliament * Sponsored the OSP Regulations (L.I. 2374) * Nominated individuals for appointment as Special Prosecutor * Has consistently worked with the OSP since its establishment * Has relied on OSP investigations in matters such as extradition proceedings involving former public officials

It would be legally inconsistent for the Attorney-General to actively facilitate the operational existence of the OSP and later argue that the Office lacks prosecutorial authority. Such a position would defeat the very rationale for establishing the Office.

On the question of the Attorney-General’s nomination of the Special Prosecutor, it is important to underscore that such a nomination is neither ceremonial nor purposeless. The Attorney-General did not nominate the Special Prosecutor to occupy the Office of the Special Prosecutor as a matter of formality or convenience. Neither did the AG nominate the Special Prosecutor to that office to be drinking tea without biscuit.

The Office of the Special Prosecutor is a statutory creation, established by law to perform clearly defined functions, principally the investigation and prosecution of corruption and corruption-related offences. In nominating a person to that office, the Attorney-General necessarily intends that the appointee will discharge those statutory responsibilities.

It would therefore be wholly illogical and legally inconsistent to suggest that the Special Prosecutor, duly nominated to occupy an office specifically created to carry out prosecutorial functions, lacks the authority of the Attorney-General to perform those very functions. Such a position undermines both the purpose of the enabling legislation and the rationale behind the nomination itself.

6. Authorization May Also Be Inferred by Necessary Implication

The law often recognizes what is implied, even where it is not expressly stated. Ghanaian courts have long accepted the principle of necessary implication in statutory interpretation. This principle was recognized in cases such as:

Sasu v. Amua-Sekyi (1987); Frank Agyei-Twum v Attorney-General & Bright Akwetey (2006) et al

In effect, where the legislative intent is clear, courts are permitted to interpret statutes in a manner that gives effect to that purpose. The clear purpose of Act 959 was to create an independent anti-corruption prosecution body. Any interpretation that renders the OSP dependent on repeated AG approvals defeats that purpose.

7. L.I. 2374 Provides Even More Explicit Authority

Article 88(4) of the 1992 Constitution speaks only to the “authority of the Attorney-General” and does not prescribe the specific form that such authority must take. The Constitution is therefore deliberate in its breadth, leaving room for that authority to be conferred in different legally recognizable ways, whether expressly, or by conduct, or by necessary implication.

In the case of the Office of the Special Prosecutor (OSP), it is evident that the Attorney General’s authorization exists on all three fronts. It is reflected in the express provisions of the enabling legislation, reinforced by the conduct of successive Attorneys General, and supported by necessary implication arising from the purpose and structure of the statutory framework establishing the Office.

Notwithstanding this, for those who contend that the Attorney General’s authorization must be expressly granted, including the current Attorney General, Hon. Dominic Ayine, who during parliamentary debates on the OSP Bill suggested the need for an Executive Instrument (EI) or Legislative Instrument (LI), such concerns have, in any event, been adequately addressed by subsidiary legislation (Legislative Instrument).

The Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), provides clear and direct confirmation of this authority. In particular, Regulation 11 states:

Decision to Prosecute

“The Special Prosecutor or an authorized officer shall, upon considering the facts or evidence gathered from an investigation, take a decision whether or not to prosecute.”

This provision is explicit. The regulation was prepared and laid before Parliament by the Attorney-General at the time, Gloria Akuffo. Parliament did not touch or amend any portion of the instrument (LI 2374) because it has no authority to do so per the decision of the Supreme Court in Okane v EC & AG; Opremreh v EC & AG et al. Pursuant to Article 11(7) of the Constitution, the LI matured into law after twenty-one sitting days.

Without a doubt, Regulation 11 of (LI 2374) is a direct legislative confirmation that the Special Prosecutor has prosecutorial discretion. It constitutes an explicit legislative affirmation of the Special Prosecutor’s authority to make prosecutorial decisions, thereby satisfying even the strictest requirement for express authorization under Article 88(4) of the Constitution.

8. The Danger of Requiring Repeated Authorization

If the OSP were required to seek fresh approval from the Attorney-General before every prosecution:

* The independence of the Office would be compromised

* Political interference may become inevitable

* Corruption prosecutions could be delayed or frustrated

* The very purpose of Act 959 would be defeated

That certainly could not have been the intention of the lawmaker.

Conclusion

The constitutional requirement for Attorney-General authorization under Article 88(4) has already been satisfied. That authorization was granted through:

* Act 959 * L.I. 2374 * The conduct of successive Attorneys-General * The clear legislative intent behind establishing the OSP

The authorization contemplated under the Constitution is a one-time authorization, not a recurring permission slip. To insist that the Office of the Special Prosecutor must repeatedly seek approval from the Attorney-General before prosecuting corruption-related offences is to fundamentally misunderstand the Constitution, frustrate Parliament’s intent, and weaken Ghana’s fight against corruption.

The Office of the Special Prosecutor was not created to merely exist in theory. It was created to act decisively in the national interest. Any interpretation that reduces it to a ceremonial institution waiting endlessly for prosecutorial clearance is not only legally flawed, it is also dangerous to Ghana’s anti-corruption framework and I call on all well-meaning Ghanaians to reject same for love of country.