But Hands AG The Switch Box
TNR Files
For months, the Office of Special Prosecutor (OSP) has been in legal limbo. In April, a High Court judge ruled that it had no constitutional right to bring charges on its own, ordering all its active cases transferred to the attorney general’s office. The decision sent shockwaves through the country’s fledgling anti-graft efforts, casting doubt on dozens of investigations into high-profile officials, contractors, and political operatives.
Then, yesterday July 29, the Supreme Court stepped in. In a unanimous ruling, it overturned the High Court decision, affirming the OSP’s authority to investigate and prosecute corruption. But the justices did not stop there.
They added a crucial qualification: the attorney general, they said, retains the constitutional power to halt any prosecution including those brought by the OSP by filing a nolle prosequi.
On its face, the ruling seems a balanced compromise. But a close reading of the court’s reasoning reveals a structure that anti-corruption experts say is fraught with risk: the OSP is not truly independent, but a delegated agent of the attorney general. And that delegation, they warn, can be revoked or circumvented with the stroke of a pen.
The case brought by private legal practitioner Noah E. Adamtey hinged on Article 88 of Ghana’s 1992 Constitution, which vests in the attorney general the exclusive authority to “initiate and conduct” all criminal prosecutions on behalf of the Republic.
Adamtey argued that Sections 3 and 4 of the OSP Act (Act 959) infringed on that exclusivity by giving the Special Prosecutor independent prosecutorial powers.
The Supreme Court agreed that Article 88 grants the attorney general exclusive constitutional authority. But it rejected the notion that this bars Parliament from creating other institutions to exercise that authority.
Instead, the court found that the OSP’s powers derive from a lawful delegation specifically, the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374) which the attorney general’s office itself approved.
In other words, the OSP does not prosecute as a co-equal constitutional actor, but as a statutory proxy. The attorney general remains the boss, and the delegation is revocable.
That is where the ruling’s most consequential and potentially dangerous provision lies. The court held that the attorney general may, “at any stage,” discontinue any criminal proceeding initiated by the OSP by entering a nolle prosequi. No reason need be given. No judicial review is required.
For anti-corruption advocates, this is a gaping hole. “The attorney general is a political appointee,” said Prof. Kwame A. Ninsin, a constitutional scholar at the University of Ghana, in an interview. “If a case threatens a powerful ally of the government, the AG can simply kill it legally, quietly, and without explanation. The OSP’s independence becomes a fiction.”
The court’s ruling did not address how often the nolle prosequi power has been used in the past, nor did it impose any conditions on its exercise. The New Republic’s review of court records shows that between 2017 and 2025, the attorney general’s office entered nolle prosequi in more than 70 high-profile corruption cases, many of which were dropped without public explanation. The OSP itself was not involved in those cases, but the precedent is stark.
The ruling also retroactively validates all actions taken by the OSP since its creation including convictions, freezing orders, and ongoing trials. This was a critical move, as the April High Court decision had thrown into question the legality of dozens of cases. The OSP’s director, Kissi Agyebeng, had warned that the High Court ruling could “paralyze” his office’s work.
But the Supreme Court’s validation does not erase the underlying tension. Several of the OSP’s most high-profile investigations including cases against former ministers, state-owned enterprise executives, and prominent businessmen now proceed, but remain vulnerable to a sudden nolle prosequi from the attorney general.
The court’s reasoning rests on the idea that delegation is lawful as long as it remains subject to constitutional supervision. But the ruling offers no mechanism to prevent the attorney general from using that supervision to undermine the OSP’s mission. It does not require the AG to consult with the Special Prosecutor before dropping a case. It does not mandate public disclosure of the reasons. And it does not create an independent body to review such decisions.
“This is not a compromise,” said Dr. Nyaho Nyaho-Tamakloe, a veteran anti-corruption activist who has followed the case closely. “It’s a constitutional fig leaf. The OSP can investigate, but the AG can always veto. That’s not independence that’s a leash.”
The ruling gives the OSP a reprieve, but the underlying structural weakness remains. The attorney general’s office has not publicly stated whether it intends to use its nolle prosequi power to intervene in current OSP cases. But the political calculus is clear: any case that touches a senior government official, a ruling party financier, or a powerful constituency could be quietly shut down.
The court’s decision also sets a precedent for other statutory agencies like the Economic and Organised Crime Office (EOCO) and the Financial Intelligence Centre that may seek independent prosecutorial powers. They too will now have to accept the attorney general’s ultimate authority, with all the risks that entails.
For now, Ghana’s anti-corruption fight has been saved from outright paralysis. The Special Prosecutor can now proceed, but only so long as the attorney general chooses to let him.