In the interest of good governance and public accountability, I believe I owe my conscience a compelling responsibility to contribute to the discourse surrounding the Office of the Special Prosecutor (OSP) and the Attorney General (AG).

The only way to make it out of our institutionally cemented, corrupt society is to defer to objectivity, especially for those of us privileged enough to be learned. We cannot, in good conscience, pretend we do not realise how hard it is for the AG’s department to supervise corruption and corruption-related offences.

It is hard because the AG is a political appointee, practically at the whims of his appointer. As much as I respect the current AG and all those who have graced the office he now occupies, the truth must be said that some offences are better handled by an institution conceptually beyond the reach of our politicians and their schemes.

The AG’s office has so many other challenges that do not belong in this discussion, but I need to mention the office’s already challenging circumstances. That is all I will do here: to very vaguely remind us all that the AG’s hands are already full, and then proceed to the reason for this piece. 

The OSP was established in 2018 through an Act of Parliament. The preamble of the Act reads as follows:

“AN ACT to establish the Office of the Special Prosecutor as a specialised agency to investigate specific cases of alleged or suspected corruption and corruption-related offences involving public officers and politically exposed persons in the performance of their functions as well as persons in the private sector involved in the commission of alleged or suspected corruption and corruption-related offences, prosecute these offences on the authority of the Attorney-General and provide for related matters.” (Emphasis mine)

The preamble of an Act of Parliament is one of the most underrated parts of any legislation. What it does is to set the mental tone for reading the law. It also provides a broad philosophical justification for the law and signals legislative intent, all in a few paragraphs. This preamble clearly announces its intention to create a specialised office. It does so with a firm realisation of the constitutional limitations on such an office, thus explicitly stating that the mandate will be executed under the authority of the AG. 

This is important because the law is incontrovertibly clear that the AG alone holds prosecutorial powers. Article 88 of the 1992 Constitution of Ghana states that the AG shall be responsible for the initiation and conduct of all prosecutions for criminal offences.

(Emphasis mine) Without more, this constitutional provision would have meant that no other establishment could be set up with the purported function of performing the tasks clearly reserved to the AG. However, the Constitution further states, in a clause immediately after, that all offences prosecuted in the name of the Republic shall be at the suit of the AG or any other person authorised by him in accordance with any law.

(Emphasis mine) The framework for civil matters is different, apparently stricter; it provides that the AG shall institute all civil matters and defend the same on behalf of the state. There are no exceptions, and the Constitution does not use the same language as Article 88 (4), which allows the AG to delegate this power. 

A closer look at the Office of the Special Prosecutor Act, 2017 (Act 959) (“OSP Act”) reveals its consistency with the 1992 Constitution. Section 4 of the Act, titled ‘Mandate’, is reproduced verbatim for a proper contextual understanding of the issues. 

“Subject to clause (4) of article 88 of the Constitution, the Office shall, for this Act, be authorised by the Attorney-General to initiate and conduct the prosecution of corruption and corruption-related offences.”

This is an express authorisation which complies with Article 88. The essence of the provision, conveyed in the clear writing contained therein, is that, under the OSP Act, the OSP shall be authorised to exercise the powers therein accorded.

The Constitution already provides that where the AG has authorised another person in accordance with any law, such delegation will be deemed constitutional. This might appear to be a logical inference from the clear text of the Constitution, but the emphasis here attempts to put that matter beyond reproach. 

The key question that appears to breed the confusion surrounding the legality of the office of the OSP in the manner in which it is set up is whether the Constitution expects a case-by-case authorisation of any other person purporting to exercise the AG’s powers or whether a durable authorisation suffices, as is the case with the office of the OSP.

As a preliminary note, it must be reiterated that the OSP Act was laid before Parliament by the Nana Addo government through the Office of the Minister of Justice and Attorney General in 2017. To put this plainly, the AG of the day, Gloria Akuffo, acting through her Deputy, laid the law before parliament, essentially exercising Article 88(4) powers and setting out to authorise a special office to discharge the duties the OSP now exercises.

We need to stay true to the principle of government continuity and recognise that this authorisation, if clothed with legal propriety, binds successive occupants of the AG’s office. In essence, the Dominic Ayine-led AG’s department cannot today argue that the OSP Act was not their doing, or that the authorisation therein provided does not bind their office.

Two questions need to be answered to end this matter once and for all. The first question, which I preemptively answer in the affirmative, is whether the AG’s prosecutorial powers were properly and constitutionally delegated when the OSP Act was passed.  This is straightforward because Article 88(4) of the Constitution realises the inherent danger in expecting discretionary and arbitrary authorisations.

The only way Article 88 envisions such delegation is in accordance with law, not administrative fiat, not government policy. We are referring to law as it means in the context of Article 11 of the 1992 Constitution. Where, therefore, an Act of Parliament enables a special person, natural or institutional, to prosecute, it must be deemed that such an Act is exactly in line with the requirement of the law.

The second question, whose resolution obliterates the arguments of those who appear to advance a rather unworkable understanding of the law, is whether Article 88(4) expects a case-by-case delegation of the AG’s powers.

Put differently, where the AG purports to delegate powers pursuant to Article 88(4), can the enabling Act of parliament provide a durable/institutional authorisation such that the body sanctioned to exercise those powers does not need recurring authorisation to do the same thing every time?

I am of the learned opinion that the OSP Act, in Section 4(2), read together with the preamble of the legislation, was meant to provide durable institutional authorisation for the OSP to conduct defined cases. These powers are fairly rigid. The OSP does not have the power to prosecute sexual offences; similarly, the OSP cannot, under the current legislative framework, set out to prosecute homicide offences.

What the law set out to do, which should be clear to all of us, is to enable a special body to prosecute corruption and corruption-related offences. Section 4(1) of the OSP Act also clearly indicates that the OSP shall not be subject to the direction or control of anyone in the discharge of its duties.

This is further evidence that the powers so vested by the express authorisation in Section 4(2) are meant to be exercised as if exercised by the AG. When the AG prosecutes cases on behalf of the Republic, it is expected that they do so with utmost fidelity to the law and without fear or pressure from anyone else. How then do we expect an office, whose authority stems from the same powers the AG exercises, to be subject to the control of the AG? The OSP was not set up to have the AG’s department second-guess their judgment on which cases to prosecute or how to conduct those cases.

What we did with the OSP Act was to enable an institution by expressly authorising it to exercise Article 88 powers in a very restricted context. 

Very few countries operate a similar model, and even fewer face the unique circumstances of our nation. Corruption has robbed this country of so much over the last couple of decades that we decided we needed a specialised investigative/prosecutorial body to address the rot. The Constitutional Court of Indonesia, when faced with a similar question regarding the constitutionality of the nation’s Commission for the Eradication of the Criminal Act of Corruption (CEC), a specialised body similarly situated to Ghana’s OSP, as well as aspects of Indonesia’s Anti-Corruption Law No. 30 of 2002, categorically upheld the anti-corruption body’s establishment and powers as constitutional. The justification was winding yet straightforward, with the widespread nature of corruption and its inimical effect on accountable governance, the establishment of such bodies under a clearly defined legal framework should be encouraged. 

Before I sign off here, I am aware of the case of Noah Ephraem Tetteh Adamtey v. The Attorney-General.

That case is without merit for the reasons discussed above. A few things should be abundantly clear from a reading of the Constitution and the OSP Act; firstly, the AG’s argument, which substantially aligns with the plaintiff’s reasoning, while legally creative, is untenable because the clear language of Article 88 contemplates delegation of prosecutorial power by the AG.

The Constitution also clearly spells out that such delegation shall be in accordance with any law, not a constitutional amendment. 

All parties should agree on one point: the AG is responsible for prosecuting all crimes. That responsibility can be delegated by law, not by word of mouth or administrative fiat. Where the AG seeks to withdraw such authority, the enabling law through which the AG authorised the prosecution should be repealed. The facts as we know them (or should know them) now are as follows:

• The OSP was established under an Act of Parliament, laid by the AG of the day, expressly authorising the OSP to exercise Article 88 functions.
• The express authorisation which some parties demand was clearly provided in Section 4(2) of the Act. That authorisation is durable and institutional and can only be withdrawn by repealing the enactment. 
• Expecting case-by-case authorisation for a very niche category of offences is an impractical request. The additional expectation that the AG used in Article 88 should refer to a person and not the institution is also unworkable because if Dr Dominic Ayine authorises the OSP to prosecute me on a charge of Willfully Causing Financial Loss to the State, what happens in the circumstance where Dr Ayine leaves the office while my prosecution is sub judice? Does that imply a new authorisation should be sought from the new AG? This question exposes the flaw in that logic. 

In conclusion, I believe in the OSP, not the person, the office. I believe we need an institution to hold our politicians in check.

I believe the only way to do that, as experience has taught us, is to put the prosecution of corruption and corruption-related offences beyond the reach of politicians; it is they who are most likely to be bitten by the OSP.

Why put it in their reach? I believe Ghana can work if institutions are protected. The OSP is fine as is.