By Leo Nelson
The Office of the Attorney General has mounted a significant constitutional challenge at the Supreme Court, questioning key provisions of the Office of the Special Prosecutor Act, 2017 (Act 959).
In an affidavit filed on April 8, 2026, the Attorney General argues that sections of the law granting the Office of the Special Prosecutor independent prosecutorial authority violate Ghana’s 1992 Constitution.
At the center of the case, Adamtey v. Attorney General, is a dispute over who ultimately holds the power to prosecute criminal cases in the Republic of Ghana.
The Attorney General, as the state’s chief legal advisor, maintains that Article 88 of the Constitution clearly establishes that all prosecutorial authority rests solely in that office.
According to the filing, any attempt by Parliament to confer parallel prosecutorial powers on another body is inconsistent with the constitutional order. The Attorney General’s position is framed as a defense of constitutional clarity rather than an attack on anti-corruption efforts.
The affidavit states that while the Office of the Special Prosecutor was created to strengthen the fight against corruption, it cannot operate as an entity outside the supervisory framework of the Attorney General.
The filing emphasizes that prosecutorial authority is not merely an administrative function but a constitutional mandate that cannot be shared or duplicated without amendment to the Constitution.
The case itself was initiated by private citizen Noah Ephraem Tetteh Adamtey, who is challenging the legality of Act 959. Mr Adamtey’s argument is rooted in what legal analysts describe as a “monopoly theory” of prosecution.
He contends that Article 88 grants exclusive authority to the Attorney General and that any prosecution must either be conducted directly by that office or by individuals acting under its explicit control and authorization.
From this perspective, provisions in Act 959 that allow the Special Prosecutor to initiate and pursue criminal cases without seeking permission from the Attorney General are constitutionally defective.
Adamtey argues that such provisions effectively create a parallel prosecutorial system, which the Constitution does not permit unless it is amended through a referendum. His reasoning is described by observers as doctrinally precise and grounded in a strict interpretation of constitutional text.
The Attorney General’s draft Statement of Case closely aligns with Adamtey’s arguments, presenting a structured legal case built on six key propositions. First, it asserts that prosecutorial power is exclusively vested in the Attorney General.
Second, it challenges provisions in the Act that compel the Attorney General to authorize prosecutions initiated by the Special Prosecutor, arguing that such requirements undermine constitutional discretion.
Third, it maintains that Parliament cannot compel the exercise of executive authority in a manner that constrains constitutional functions. The filing further argues that Act 959 substantially alters the powers of the Attorney General in a way that is not permitted without constitutional amendment.
It also raises concerns about the delegation of prosecutorial authority to what it describes as a juridical entity, suggesting that such delegation is incompatible with the constitutional framework.
The Attorney General reinforces these claims by referencing constitutional history, the doctrine of separation of powers, and established prosecutorial tools such as plea bargaining and nolle prosequi.
This legal confrontation follows an earlier procedural decision by the Supreme Court on January 27, 2026, when the Office of the Special Prosecutor sought to join the case to defend its mandate.
The Attorney General opposed the application, arguing that the Special Prosecutor was not a necessary party to the proceedings. The Court ultimately dismissed the application, leaving the constitutional questions to be determined without the direct participation of the OSP.
The potential implications of the case are far reaching. A ruling in favor of the Attorney General could significantly alter the operational structure of the Office of the Special Prosecutor.
Under such a scenario, the OSP would be required to obtain explicit authorization from the Attorney General before initiating any prosecution. This requirement could introduce delays in handling corruption cases, particularly those involving complex investigations or high-profile individuals.
Legal experts note that this could create procedural bottlenecks. Ongoing investigations, including those related to petroleum sector irregularities and recent enforcement actions involving fuel depots, might face interruptions while awaiting prosecutorial approval.
Critics argue that this could weaken the effectiveness of the OSP and limit its ability to act swiftly in cases where timing is critical. Supporters of the Office of the Special Prosecutor have consistently emphasized the importance of its independence.
Civil society organizations and anti-corruption advocates argue that the OSP was specifically designed to address cases involving politically exposed persons, where the Attorney General may face conflicts of interest due to their appointment by the President.
They contend that removing the OSP’s independent prosecutorial authority would undermine its core purpose. These stakeholders view the current legal challenge as a test of Ghana’s commitment to institutional checks and balances.
They argue that an independent prosecutorial body serves as a safeguard against political interference and enhances public confidence in the justice system. For them, the question is not only about constitutional interpretation but also about practical accountability in governance.
On the other hand, proponents of the Attorney General’s position argue that constitutional consistency must take precedence. They maintain that allowing multiple entities to exercise prosecutorial authority without clear hierarchical control could lead to fragmentation and uncertainty in the legal system.
From this standpoint, the Constitution’s allocation of prosecutorial power to the Attorney General ensures coherence and accountability. The Supreme Court’s eventual ruling is expected to provide clarity on the relationship between statutory innovation and constitutional limits.
It will determine whether Parliament can create specialized institutions with autonomous powers or whether such powers must always remain within the framework established by the Constitution. As the case progresses, it continues to draw attention from legal scholars, policymakers, and the public.
The outcome will not only shape the future of the Office of the Special Prosecutor but also define the boundaries of prosecutorial authority in Ghana’s constitutional democracy. The decision is likely to have lasting implications for the country’s legal architecture and its approach to combating corruption.