The Executive Director of the Centre for Democratic Development (CDD-Ghana), Prof. H. Kwasi Prempeh, has criticised the handling of a Supreme Court case challenging the constitutional basis of the Office of the Special Prosecutor (OSP), warning that recent procedural decisions could undermine Ghana’s adversarial justice system.

In a Facebook post reacting to proceedings in the case of Adamtey v Attorney General, Prof. Prempeh argued that the court’s approach effectively denies the OSP the opportunity to defend the legality of its statutory establishment, while allowing the Attorney General (AG) to remain the nominal defendant despite not holding an adverse position.

The case before the Supreme Court seeks to determine whether the Office of the Special Prosecutor Act, 2017, is consistent with Article 88 of the 1992 Constitution, which vests prosecutorial authority in the Attorney General.

The OSP is widely regarded as having a direct interest in defending its statutory independence. However, Prof. Prempeh argued that excluding the office from defending the suit risks prioritising procedural form over substantive justice.

“So the Supreme Court of Ghana will not allow the ‘real party in interest,’ the OSP in this case, to defend against a lawsuit challenging the constitutionality of its statutory establishment and existence… but will allow the ‘nominal defendant,’ the AG, whose position and interest in the suit is not adverse to that of the plaintiff,” he wrote.

He further cautioned that the arrangement could encourage what he described as “collusive suits” or “sham cases”, where both the Attorney General and the private plaintiff effectively advance the same legal position.

“The Court is essentially privileging ‘form over substance’ and encouraging collusive suits or ‘sham cases’… This is not how litigation or adjudication in the common law tradition is supposed to work,” he stated.

Prof. Prempeh added that adversarial proceedings require genuinely opposing parties to enable courts to benefit from balanced legal arguments before reaching decisions.

“Refusing to allow the OSP to defend this suit… makes a mockery of our adversarial system of justice. Let the OSP defend this suit,” he said.

The comments come amid growing legal debate over the constitutionality of the OSP’s independent prosecutorial powers, an issue currently before the Supreme Court in a case brought by private citizen Noah Ephraem Tetteh Adamtey.

Earlier filings by the Attorney General have argued that the Office of the Special Prosecutor Act may be inconsistent with the 1992 Constitution, particularly Article 88, which vests prosecutorial authority solely in the Attorney General, subject to limited delegation.