Let's wait for certified judgment to know what Supreme Court decided on OSP

The media reported on the morning of 29 July 2026 that the Supreme Court had delivered its decision in the case of Adamtey v Attorney-General, unanimously affirming the constitutionality of the Office of the Special Prosecutor (OSP), while at the same time clarifying that the Attorney-General retains the constitutional power to discontinue criminal prosecutions initiated by the OSP.

Unfortunately, the judgment of the Supreme Court is not yet available to enable an informed examination and analysis to objectively determine whether the Court, in fact, upheld the constitutionality of the OSP as an independent prosecutorial agency — which is what the Office of the Special Prosecutor Act, 2017 (Act 959) was enacted to establish — or whether the Court has reduced the OSP to another investigative and prosecutorial agency under the discretionary control and direction of the government through an Attorney-General appointed and removable at the pleasure of the President.

The distinction between the investigative and prosecutorial powers of the OSP under Act 959 and those of the Ghana Police Service, the Economic and Organised Crime Office (EOCO), and other similar agencies was the fact that the Attorney-General could not interfere with or discontinue investigations and prosecutions undertaken by the OSP.

Section 80 of Act 959, which deals with consequential amendments, amended subsection 1 of the Economic and Organised Crime Office Act, 2010 (Act 804) by deleting the words “corruption and bribery” in paragraph (a) of the definition of “serious offence”.

It also amended subsection 2 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), by:

(a) inserting after the words “Attorney-General” the words “or Special Prosecutor” wherever they appear in sections 54 and 55; and

(b) inserting a new subsection (2A) into section 54 as follows:

“(2A) Where the Special Prosecutor enters a nolle prosequi under subsection (1), the Special Prosecutor shall state reasons for doing so.”

Parliament had the authority to amend sections 74 of Act 804 and sections 54 and 55 of Act 30, being pieces of legislation it had enacted, just as Parliament has the power through legislation to regulate existing law and the common law referred to under Article 11 of the Constitution.

The powers of the Attorney-General under sections 54 and 55 of Act 30 are codifications of the common law prosecutorial discretion of the Attorney-General, which are not subject to review by the courts. Parliament, however, retained the authority to amend or modify those provisions through legislation, as it did under section 80 of Act 959.

Should the certified copy of the Supreme Court’s judgment in Adamtey v Attorney-General, when publicly available, state that section 80(2) of Act 959 is unconstitutional, it would mean that portions of Act 959 governing the independent powers of the Special Prosecutor are unconstitutional.

It would then follow that the Court decided that portions of the prosecutorial powers of the Special Prosecutor, derived from the codification of common law principles, are unconstitutional. This would also mean that media reports stating that the Court “unanimously affirmed the constitutionality of the Office of the Special Prosecutor (OSP)” are only half-truths.

The unanimous judgment would, in effect, have reduced the OSP to the level of any other investigative and prosecutorial agency under the complete direction and control of the President.

The enactment of Act 959 by Parliament to establish the OSP as a distinct agency would then have been unnecessary, a needless charge on the public purse, a redundancy, and potentially a violation of Article 106 of the Constitution, given the absence of any defects in the existing law that the legislation was intended to remedy.

The response I received when I inquired about the availability of a certified copy of the Court’s judgment in Adamtey v Attorney-General was that it would not be available to the public until 4 August 2026.

The media, however, is already awash with opinions and comments on the decision of the Supreme Court, as though those offering such views had read the certified judgment and were therefore able to engage in informed discourse with the public on the subject.

The Supreme Court decision in Republic v Mensah-Bonsu & Others; Ex Parte Attorney-General [1995-96] 1 GLR 377 prohibits public comments and opinions based on uncertified judgments or hearsay sources.

The purpose of this discourse is, therefore, to caution the public to exercise restraint and refrain from speculating on what the Supreme Court decided in Adamtey v Attorney-General until the certified judgment becomes publicly available.

Only then can there be an informed discussion on whether the Court truly decided that Act 959 is constitutional in its entirety or whether it found portions of the legislation to be unconstitutional, and the reasons for such a determination.

Without access to a certified true copy of the judgment, one cannot, in all honesty, examine, analyse, and draw informed conclusions on the implications of the decision for the constitutionality of the OSP as envisaged and established under the Office of the Special Prosecutor Act, 2017 (Act 959).