Former Attorney-General, Ayikoi Otoo, has explained the Accra High Court’s handling of the recent ruling involving the Office of the Special Prosecutor (OSP) and the Attorney-General over prosecutorial powers, insisting that the court acted within its jurisdiction based on the nature of the application before it.

His comments come amid public debate over whether the High Court had the authority to pronounce on issues relating to constitutional interpretation; whether the OSP has power to independently prosecute criminal cases.

Mr Ayikoi Otoo explained that a key legal distinction must be made between constitutional interpretation and judicial review proceedings, particularly quo warranto actions.

“That’s an excellent question to ask. But the more important thing is what the nature of the matter was that was before the judge. There is a distinction between what we call an issue of interpretation and a judicial review relief called quo warranto,” he explained.

According to him, if the application before the court was essentially questioning the legal authority of the OSP to prosecute, then the High Court was entitled to examine the issue.

“If the person intends a judicial review application before a High Court, asking the authority by which the person prosecuting is prosecuting this, then it allows the judge to look at the law, the constitution, and whatever, and come to the conclusion whether or not that person has authority to do what he is doing,” he stated.

He argued that the case may therefore have been one of quo warranto (by what authority/warrant) rather than a pure constitutional interpretation matter reserved exclusively for the Supreme Court.

“So this might not be a case of constitutional interpretation, but a case of quo warranto,” he said.

The former Attorney-General further explained that under Ghana’s legal framework, the Attorney-General holds primary prosecutorial authority unless delegated.

He added that certain state agencies and officers are permitted to prosecute only when they have clear legal backing, such as executive instruments or formal delegation.

“There are police prosecutors everywhere who prosecute, but there is an executive instrument that permits them to do that. Once we give them authorisation, then they can do it.

“It appears that maybe the OSP was not able to produce any authorisation. So the judge could say, I have looked at the constitution and the authority, and it’s only the Attorney-General who can do that unless authorised,” he stated.

He concluded that in such circumstances, the High Court could properly assess whether prosecutorial authority had been lawfully delegated, rather than engaging in constitutional interpretation.

Background

An Accra High Court has ruled that the Office of the Special Prosecutor (OSP) does not have independent authority to prosecute criminal cases, directing that all matters initiated by the anti-corruption body be referred to the Attorney-General’s Department.

The decision, delivered on Wednesday, has created uncertainty over ongoing prosecutions handled by the OSP, placing them effectively in abeyance pending further legal direction.

Presiding judge, Justice John Eugene Nyadu Nyante, held that although the OSP is empowered to investigate corruption-related offences, it lacks the constitutional mandate to independently initiate prosecutions.

The court based its ruling on Article 88 of the 1992 Constitution, which vests prosecutorial authority in the Attorney-General.

The ruling followed an application for quo warranto filed by Peter Achibold Hyde, who challenged the legal authority of the OSP to undertake prosecutions.