OSP Act lawful but AG can end any prosecution – Supreme Court rules

The Supreme Court has upheld the constitutionality of the Office of the Special Prosecutor Act while affirming the Attorney-General’s authority to halt any prosecution.

In a judgment delivered on Wednesday, the apex court ruled that the Office of the Special Prosecutor Act, 2017 (Act 959) is constitutional, dismissing claims that key provisions of the law violate the 1992 Constitution.

The court specifically held that Sections 3 and 4 of Act 959 are not inconsistent with, or in contravention of, the Constitution, and are therefore valid. The challenge had been brought by Legal Officer Noah E. Adamtey, who argued that the provisions were unconstitutional.

The ruling clarified that the constitutional responsibility for all criminal prosecutions rests exclusively with the Attorney-General. According to the court, any individual or institution prosecuting cases in the name of the Republic does so only with the Attorney-General’s authority.

The Supreme Court further held that the Office of the Special Prosecutor currently exercises prosecutorial powers based on authorisation granted by the Attorney-General in accordance with the law. That authorisation, the court said, remains valid unless it is amended.

Despite recognising the OSP’s authority to prosecute cases, the court stressed that the Attorney-General retains the constitutional power to discontinue any prosecution through a nolle prosequi.

The judgment also upheld the validity of all prosecutions, convictions and freezing orders secured under Section 71 of Act 959. It ruled that nothing in its decision undermines the authority of prosecutors who have been authorised by the Attorney-General to act on behalf of the Republic.

The decision settles the constitutional challenge against the law establishing the Office of the Special Prosecutor while reaffirming the Attorney-General’s overarching supervisory role over criminal prosecutions in Ghana.