The Supreme Court has upheld the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), but underlined that the Attorney-General (A-G) retains the final say over all criminal prosecutions brought in the name of the Republic.
In its decision delivered on Wednesday, the court ruled that the Act sits squarely within the framework of the 1992 Constitution, dismissing claims that its core provisions were unconstitutional.
At the heart of the challenge were Sections 3 and 4 of Act 959, which set out the mandate and powers of the Office of the Special Prosecutor (OSP). The court held that both sections are consistent with the Constitution and therefore remain fully in force.
The case was brought by Legal Officer Noah E. Adamtey, who had argued that these provisions conflicted with the Constitution and should be struck down. The Supreme Court rejected his arguments and declined to declare any part of those sections invalid.
Attorney-General’s exclusive prosecutorial authority
While endorsing the legal foundation of the OSP, the justices were explicit that the Attorney-General continues to hold the exclusive constitutional authority to conduct prosecutions on behalf of the Republic.
The court explained that any person or body that undertakes prosecutions in the name of the Republic does so only because the Attorney-General has authorised that action. The prosecutorial powers exercised by the OSP therefore flow from an authorisation granted by the Attorney-General under the law.
That authorisation, the court made clear, remains effective unless formally altered. In other words, although the OSP may initiate and pursue cases, it does so under a continuing delegation of power from the Attorney-General rather than in its own independent constitutional right.
Power to discontinue OSP cases preserved
The Supreme Court further clarified that the Attorney-General’s power to enter a nolle prosequi – the decision to discontinue a criminal case – extends to prosecutions initiated by the OSP.
By confirming that the A-G may terminate proceedings started by the OSP where necessary, the court reinforced the principle that the Attorney-General remains the ultimate prosecutorial authority, even in matters handled by the Special Prosecutor.
Existing OSP cases and orders remain valid
In its judgment, the court also addressed the status of past and ongoing actions taken under the OSP framework. It ruled that all prosecutions, convictions and freezing orders made pursuant to Section 71 of Act 959 are legally valid and unaffected by the constitutional challenge.
The justices stressed that nothing in their ruling should be read as undermining or casting doubt on the authority of prosecutors who have been properly authorised by the Attorney-General to act on behalf of the Republic.
By confirming both the constitutionality of Act 959 and the primacy of the Attorney-General’s prosecutorial powers, the Supreme Court has effectively endorsed the current legal architecture under which the OSP operates, while drawing a clear line that ultimate control over state prosecutions remains with the Attorney-General.
