Supreme Court confirms OSP's independent prosecution power, but AG retains case termination authority

Ghana's Supreme Court has delivered a landmark ruling that clarifies the constitutional balance between the Office of the Special Prosecutor's independence and the Attorney-General's residual powers. In a unanimous decision, the seven-member panel chaired by Chief Justice Paul Baffoe-Bonnie rejected a constitutional challenge to the OSP's prosecutorial authority, affirming that the anti-corruption agency can investigate and prosecute corruption offences without prior approval from the Attorney-General—whilst preserving the AG's right to terminate such cases through nolle prosequi.

The case stemmed from a suit filed by private legal practitioner Noah Adamtey, who argued that the Office of the Special Prosecutor Act 2017 (Act 959) violated Article 88 of the 1992 Constitution by granting prosecutorial powers that belong exclusively to the Attorney-General. Adamtey sought a declaration that Sections 3(3) and 4 of Act 959, which grant the OSP independent prosecutorial mandate, were unconstitutional. The court's rejection of this challenge means those provisions remain valid and enforceable.

The constitutional balance: independence with oversight

The Supreme Court's judgment creates a nuanced framework for Ghana's anti-corruption efforts. The OSP—established to spearhead the nation's fight against corruption—now has explicit constitutional blessing to commence and conduct criminal prosecutions independently. This independence is critical for an agency tasked with investigating complex, often sensitive corruption cases that may involve high-ranking officials whose ties to the Attorney-General's office could create perceived or actual conflicts of interest.

However, the ruling equally confirms that the Attorney-General retains constitutional authority to intervene through nolle prosequi—a legal mechanism to formally discontinue any prosecution. This preserves a check on the OSP's prosecutorial discretion and ensures that the AG, as the chief law officer, maintains ultimate oversight of the criminal justice system. The decision thus rejects the Attorney-General's office's position, articulated by Deputy Attorney-General Justice Srem-Sai during proceedings, that all prosecutorial authority derives exclusively from the AG's constitutional mandate.

Why it matters for Ghana

This ruling has significant implications for Ghana's anti-corruption agenda. Since its establishment, the OSP has investigated and prosecuted several high-profile corruption cases. The court's affirmation of independent prosecutorial power strengthens the legal foundation for such work, reducing vulnerability to constitutional challenges and political interference claims. By clarifying that the OSP need not seek the AG's permission to prosecute, the judgment removes a potential bottleneck that could delay investigations or create avenues for politically motivated obstruction.

At the same time, the preservation of the AG's nolle prosequi power reflects Ghana's constitutional architecture, wherein the Attorney-General remains the principal guardian of the public interest in criminal matters. The dual structure—prosecutorial independence coupled with AG oversight—attempts to balance the need for an autonomous anti-corruption agency against constitutional accountability. Ghanaians concerned about corruption will view the OSP's bolstered autonomy as a positive step, whilst the AG's retained power underscores that no institution operates entirely unchecked within Ghana's constitutional framework.

The decision also carries symbolic weight. It demonstrates that Ghana's courts are willing to defend institutional independence and parliamentary authority against expansive executive claims, reinforcing separation of powers principles. For citizens and civil society organisations monitoring Ghana's governance, this judgment signals that the judiciary can provide a check on constitutional overreach by any branch of government, whether the executive or the legislature.