The Office of the Special Prosecutor (OSP) has indicated that it will continue to prosecute cases already in its hands despite the landmark ruling by the High Court that the OSP does not have the power to prosecute.
“The OSP firmly assures the public that all the criminal prosecutions it has commenced before the courts and all the criminal prosecutions it is about to commence before the courts remain valid and would proceed based on its mandate under the Office of the Special Prosecutor Act, 2017 (Act 959), which remains valid and in force as the matter has not been decided by the Supreme Court,” the anti-graft body said in a statement yesterday.
“The OSP states that it is taking steps to quickly overturn the decision of the General Jurisdiction Court since the High Court does not have jurisdiction to, in effect, strike down parts of an Act of Parliament as unconstitutional.
It is only the Supreme Court which can strike down parts of an Act of Parliament as unconstitutional,” the statement added, in virtual defiance of yesterday’s ruling.
The High Court in Accra declared as void the power of the OSP to prosecute, throwing into limbo the legal status of corruption and other corruption-related cases being prosecuted by the anti-graft body.
The court, presided over by Justice John Eugene Nyadu Nyante, in the ruling delivered yesterday, held that the OSP lacked independent prosecutorial power, and, therefore, it could only prosecute by deferring to the authority of the Attorney-General (A-G) in accordance with Article 88 of the 1992 Constitution.
The decision of the court, which has attracted varied views from legal experts and the public at large, has brought into the limelight the work of the OSP and the country’s anti-corruption drive and legal framework, with some criticising the ruling and others hailing it.
Response from OSP
But the OSP reacted strongly to the High Court’s ruling, vowing to take steps to overturn it.
It further stated that it would continue to execute its mandate of prosecuting corruption and other corruption-related offences.
Views
Meanwhile, a Professor of Law at the University of Ghana School of Law (UGSoL), Prof. Kwadwo Appiagyei-Atua, in an interview with the Daily Graphic, criticised the ruling, stating that the High Court acted beyond its powers by virtually striking down the powers of a body established by Parliament.
“The High Court does not have the power to interpret the Constitution, and, therefore, the current case at the Supreme Court is best placed to determine whether or not the OSP has the power to prosecute without authorisation from the A-G,” he said.
He further stated that the ruling by the High Court would render the OSP “useless” as it seeks to strip the office of the power to function effectively.
“The OSP Act deliberately gave the OSP the power to prosecute in order to cure a mischief of the A-G not having the moral courage to prosecute politicians and politically exposed persons of corruptions.
The OSP Act passed by Parliament aimed to insulate the OSP from interference to be able to prosecute without any political favours,” he said.
However, a private legal practitioner, Martin Kpebu, also in an interview with the Daily Graphic, welcomed the decision of the High Court, stressing that it would open the conversation for much needed reforms at the OSP.
“It is very possible that the Supreme Court will nullify the decision of the High Court, but the decision would help to put to the fore conversations about making the OSP better and also to hold its officers accountable,” he said.
According to him, the OSP was very important in fighting corruption, but it was equally important to hold the office accountable, adding that “because we want to fight corruption, we have an unlimited soft place for the OSP, forgetting that the people who work at the OSP are also potential candidates for corruption and abuse of office”.
Application
The ruling by the High Court followed an application for quo warranto by one Peter Archibold Hyde, who was charged by the OSP, arguing that the OSP lacked the legal authority to initiate prosecution without authorisation from the A-G.
The applicant wanted the court to declare that in the absence of such authorisation from the A-G, the OSP lacked the constitutional authority to prosecute cases, and, therefore, such powers should be declared by the court as null and void.
He, therefore, urged the court to restrain the OSP from prosecuting cases except it had been duly authorised by the A-G.
Case at the Supreme Court
In a related development, the Supreme Court is yet to determine a suit bordering on the constitutionality of the OSP to conduct prosecutions.
The suit, initiated in 2025 by a private legal practitioner, Noah Ephraem Tetteh Adamtey, invoked the exclusive original jurisdiction of the Supreme Court to interpret the Constitution and to declare the exercise of prosecutorial powers by the OSP as unconstitutional.
The plaintiff is seeking, among other reliefs, a declaration that the OSP Act, 2017 (Act 959) is unconstitutional to the extent that it confers “original or insulated prosecutorial authority on the Office of the Special Prosecutor, is inconsistent and in contravention of Articles 1(2), 88(3), (4), 93 (2) and 296 of the Constitution, and is, therefore, null, void and of no effect”.
Again, he is seeking a declaration that “Sections 3(3) and 4 of Act 959, in purporting to make the OSP independent of the A-G in the initiation, conduct and termination of prosecutions, violate the Constitution”.
The A-G, who is the defendant in that action, has filed a draft statement of case supporting the action of the plaintiff.
In his draft statement of case, the A-G argues that Article 88 (3) of the 1992 Constitution solely vests prosecutorial powers in the A-G alone, and, therefore, Parliament acted unconstitutionally by passing the OSP Act, 2017 (Act 959), which made it compulsory for the A-G to delegate part of its prosecutorial powers to the OSP.
Source:
www.graphic.com.gh