The Attorney-General (A-G) has thrown his weight behind a suit pending before the Supreme Court that seeks to declare the prosecutorial powers of the Office of the Special Prosecutor (OSP) unconstitutional.
Although the A-G is named as the defendant in the action, a draft statement of case attached to a motion for extension of time reveals that the government’s chief legal advisor will argue that the OSP Act, 2017 (Act 959), illegally divests the A-G of exclusive constitutional authority over criminal prosecutions.
The motion, filed on April 8, 2026, seeks leave to file the statement of case outside the stipulated time in order to properly respond to the suit initiated in 2025 by private legal practitioner Noah Ephraem Tetteh Adamtey.
In the draft statement of case, the A-G contends that Article 88(3) of the 1992 Constitution vests sole prosecutorial power in the A-G, stating that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal cases.” Additionally, Article 88(4) provides that all criminal offences prosecuted in the name of the Republic shall be at the suit of the A-G or any person authorised by him.
According to the A-G, Parliament overstepped its constitutional mandate by enacting Act 959, which makes it compulsory for the A-G to delegate prosecutorial powers to the OSP and removes the A-G’s oversight.
“First, it compels the Attorney-General to abandon its constitutional duty to be responsible for the prosecution of all criminal offences—he is, by the terms of the Act, now only responsible for the prosecution of offences which the OSP is not prosecuting,” the A-G argued. “This effectively converts what was intended by the framers to be a delegation into a donation.”
The A-G further argued that the OSP Act strips the A-G of essential control tools such as plea bargaining and the entry of nolle prosequi (the power to discontinue a prosecution). “The donation of the powers to the OSP also divests the Attorney-General of his control over the Office’s use of the power,” the draft statement read.
The A-G concluded that Parliament acted unconstitutionally by passing an ordinary statute that varies a significant constitutional power without first amending the Constitution itself. “We submit that, by this conduct, Parliament has, without doubt, acted in excess of the power conferred on it by the Constitution,” the A-G stated.
The Plaintiff’s Case
Mr. Adamtey, who initiated the suit on December 12, 2025, has invoked the Supreme Court’s exclusive original jurisdiction to interpret the Constitution. He is seeking several declarations, including:
- A declaration that Act 959 is unconstitutional to the extent that it confers “original or insulated prosecutorial authority” on the OSP, contravening Articles 1(2), 88(3), (4), 93(2), and 296 of the Constitution.
- A declaration that sections 3(3) and 4 of Act 959, which purport to make the OSP independent of the A-G in the initiation, conduct, and termination of prosecutions, violate the Constitution.
The Supreme Court is yet to set a date for hearing the matter.
