Supreme Court clarifies OSP prosecutorial limits: AG retains ultimate authority over corruption cases

Ghana's Supreme Court has provided significant legal clarity on the prosecutorial powers of the Office of the Special Prosecutor (OSP), ruling unanimously that whilst Parliament was constitutionally justified in establishing the anti-corruption body, the Attorney-General remains the ultimate authority over all state prosecutions. The decision, handed down on Wednesday, July 29, has been praised by legal experts as a sound interpretation of Ghana's constitutional framework.

The seven-member judicial panel affirmed the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), which created the OSP to investigate and prosecute corruption and corruption-related offences. However, the Court made clear that the Attorney-General retains the power to take over any case from the OSP, continue it, or discontinue proceedings through a nolle prosequi order. This constitutional supremacy of the AG's office stems from Article 88 of the 1992 Constitution, which vests all criminal prosecution powers in that office.

What the ruling means for anti-corruption work

Legal practitioner George Anti, speaking on Nhyira FM, characterised the ruling as providing necessary clarity on how Ghana's anti-corruption architecture should function. The OSP, he explained, does not operate as an independent prosecutorial body. Rather, it functions as an agent of the Attorney-General, exercising delegated powers that can be withdrawn at any time. This arrangement, Anti argued, strikes a balance between two competing imperatives: allowing the OSP sufficient operational independence to investigate high-profile corruption cases effectively, whilst maintaining accountability through the constitutionally mandated Attorney-General's office.

Since its establishment in 2017, the OSP has operated amid persistent questions about potential conflicts with the Attorney-General's office and whether its mandate might undermine or duplicate the AG's constitutional role. The Supreme Court's ruling effectively resolves this ambiguity. The OSP can continue its investigations and prosecutions, but only with the understanding that it operates under AG oversight.

Why this matters for Ghana

This ruling has profound implications for Ghana's anti-corruption efforts and institutional governance. The decision confirms that constitutional amendments would be required to create a truly independent prosecutorial body outside the Attorney-General's control. Until Article 88 is modified, no new anti-corruption institution, regardless of its operational capacity or mandate, can operate free from AG authority.

For ordinary Ghanaians concerned about corruption, the ruling clarifies that the OSP remains a viable tool for investigating and prosecuting high-level misconduct, even if it operates within the constitutional framework rather than outside it. The OSP has already demonstrated capacity to pursue major cases, and this ruling provides the legal certainty needed for those efforts to continue without constitutional doubt.

Anti also raised a broader constitutional concern, noting that Ghana's political parties operate different electoral systems for internal leadership elections than those governing national elections, despite both being governed by the same constitutional freedom of association provisions. He suggested the Supreme Court's ruling on election delegate systems represents progress in aligning political practice with constitutional principle.

The constitutional foundation

Ghana's 1992 Constitution was drafted with the Attorney-General as the centrepiece of the prosecution system. The framers did not contemplate creating a prosecutorial body entirely independent of that office. When the OSP was established in 2017, it was created by ordinary legislation under Parliamentary authority, not through constitutional amendment. The Supreme Court's ruling respects this constitutional hierarchy whilst affirming Parliament's power to establish institutions that exercise delegated prosecutorial authority.

Anti's analysis suggests that meaningful reform to Ghana's prosecution system would require constitutional amendment rather than legislative innovation. Any future government seeking to create a genuinely independent anti-corruption prosecutor would need to modify Article 88, a process requiring parliamentary supermajority approval and potentially a national referendum.

The ruling brings an end to speculation about potential constitutional conflicts between the OSP and the Attorney-General's office, allowing both institutions to function with clarity about their respective roles and limitations.