Lawyer and lecturer at the Ghana School of Law, Bobby Banson, has said it is only fair that the Office of the Special Prosecutor (OSP) is given the opportunity to defend itself in the ongoing constitutional case concerning its powers.

Speaking on JoyNews’ Newsfile on Saturday, 11 April, Mr Banson argued that the OSP should consider reapplying to join the case at the Supreme Court, especially in light of recent developments.

His comments follow the Supreme Court’s decision to throw out the OSP’s initial application to join a constitutional case challenging its existence.

A separate filing by the Attorney General (AG) has also argued that the OSP does not have the power to prosecute without the AG’s authorisation.

Reacting to the situation, Mr Banson said the earlier ruling by the Supreme Court does not prevent the OSP from making a fresh application.

“If I were the OSP, I would file another application to join. The first ruling is an interlocutory one. When the circumstances change, you’re allowed to,” he said.

He explained that the legal position allows for a renewed application where there is a clear shift in circumstances, particularly where the interests of the parties are no longer aligned.

Mr Banson cited a previous case involving the Speaker of Parliament to support his argument. In that case, he noted, the Supreme Court allowed the Speaker to be represented separately because his interests differed from those of the Attorney General.

“Because your interest is not aligned with his, you’re entitled to have a separate lawyer,” he said, recalling the court’s position.

According to him, the current situation presents a similar scenario, as the Attorney General appears to share the position of the plaintiff in the case against the OSP.

“For me, since now it is obvious that the Attorney General aligns with that of the plaintiff, then it means that it is fair that the OSP be heard,” Mr Banson said.

He added that if the OSP is unable to join directly, other parties with similar views could step in through legal means. “If not him, like-minded persons can file an amicus to defend on that side,” he suggested.

Mr Banson also addressed the broader legal question at the centre of the case, particularly whether the OSP can initiate prosecutions without prior approval from the Attorney General.

“I think the issue has been in practice, whether before they do any prosecution, they should actually go to the Attorney General for authorisation,” he said.

However, he maintained that the law establishing the OSP does not necessarily conflict with the Constitution.

“For me, I don’t see that the law itself breaches the Constitution,” he explained, noting that the legislation already recognises the authority of the Attorney General.

“That is why the long title states clearly that it should be under the authority of the Attorney General,” he added.

Despite this, Mr Banson insisted that differing interpretations of the law make it essential for the OSP’s position to be properly represented before the court.

“If there is a contrary position by the office holder now, I think it is only fair that he be heard,” he said.

He said that the OSP should take advantage of the changing circumstances to seek joinder once again.

“The earlier ruling doesn’t create res judicata because it’s interlocutory,” he explained.

“Once the facts are now different, and it is very obvious the Attorney General’s alignment, and he has a contrary opinion, I think he should apply to rejoin.”