Deputy Attorney-General and Minister for Justice, Dr Justice Srem-Sai, has maintained that Parliament cannot transfer the Attorney-General's constitutionally mandated prosecutorial powers to the Office of the Special Prosecutor (OSP) through ordinary legislation.

According to him, the Constitution expressly vests the authority to conduct public prosecutions in the Attorney-General, meaning Parliament lacks the constitutional power to reassign or delegate that authority through an Act of Parliament or a Legislative Instrument (L.I.).

Discussing the powers of the OSP on The Law with Samson Lardy Anyenini on JoyNews on Sunday, July 26, Dr Srem-Sai said arguments suggesting that Parliament had delegated the Attorney-General's prosecutorial powers to the Special Prosecutor through legislation were fundamentally flawed.

"The argument is that the person whom the Constitution gives authority to is the only person who can delegate. You cannot say someone can delegate the power that belongs to another person," he said.

The Deputy Attorney-General was responding to claims that the Office of the Special Prosecutor Act and the Office of the Special Prosecutor Operations Regulations, 2018 (L.I. 2374), effectively authorise the Special Prosecutor to exercise prosecutorial powers independently of the Attorney-General.

Some legal experts have argued that Parliament "statutorily authorised" the Attorney-General's prosecutorial powers to the Special Prosecutor, thereby eliminating the need for further executive authorisation.

However, Dr Srem-Sai rejected that interpretation, insisting Parliament could not delegate powers that the Constitution does not confer on it.

"Parliament has no power to prosecute, and if you have no power to prosecute, you cannot delegate that power to anybody."

He explained that both the OSP Act and its accompanying Legislative Instrument derive their authority from Parliament and therefore cannot alter constitutional allocations of power.

"Anything that we have seen from the L.I., the L.I. is not an executive instrument; it is also by Parliament. The Act is legislation, so anything in either the L.I. or the Act is by Parliament."

Distinguishing the constitutional roles of Parliament and the Attorney-General, Dr Srem-Sai argued that each institution must operate within the powers assigned to it by the Constitution.

"Just as the Attorney-General cannot go and be legislating on behalf of Parliament, the same way Parliament cannot go and be delegating the power that the Constitution expressly allocates to the Attorney-General."

He maintained that attempts to interpret the OSP Act as transferring prosecutorial authority to the Special Prosecutor amounted to an indirect amendment of the Constitution without following the prescribed constitutional procedure.

"That argument has a very big flaw. The flaw is that it is seeking to use the backdoor to amend Article 88 without using the constitutional procedure."

The Deputy Attorney-General said while the objective of strengthening the Office of the Special Prosecutor was widely supported, constitutional safeguards must not be circumvented to achieve that goal.

"I've listened to all these arguments, but I think they have very big flaws," he stated.

Supreme Court sets July 29 for verdict on powers of OSP

The Supreme Court will on July 29, 2026, deliver judgment in a suit challenging the prosecutorial powers of the Office of the Special Prosecutor (OSP).

A seven-member panel, chaired by Chief Justice Paul Baffoe-Bonnie, fixed the date after parties concluded arguments in the case brought by private legal practitioner, Noah Adamtey.

Mr Adamtey is challenging the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), arguing that it unlawfully grants the OSP independent prosecutorial authority.

He is seeking a declaration that provisions of the Act conferring original and insulated prosecutorial powers on the OSP are inconsistent with Articles 1 (2), 88 (3) and (4), 93 (2) and 296 of the 1992 Constitution and are, therefore, null and void.

He further contends that Sections 3 (3) and 4 of Act 959, which make the OSP independent of the Attorney-General in initiating, conducting and terminating prosecutions, violate the Constitution.

In January this year, the Supreme  Court unanimously rejected an application by the OSP to join the case as an interested party. The  court held that the constitutional issues raised could be fully determined between the plaintiff and the Attorney-General without the OSP’s direct participation.

However, the court accepted an application by 14 civil society organisations to join the proceedings. Their lawyer, Kizito Beyuo, argued that the groups played a key role in the establishment of the OSP and possess expertise that could assist the court.

The organisations, including Transparency International Ghana, CDD-Ghana, IMANI Africa and Ghana Anti-Corruption Coalition, say their intervention is motivated by a commitment to constitutionalism, accountability, anti-corruption and the preservation of independent public institutions.