A Constitutional Settlement With Unresolved Governance Tensions
Ghana’s Supreme Court has delivered a unanimous ruling upholding the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), while simultaneously affirming that the Attorney-General retains the constitutional authority to discontinue any prosecution initiated by the OSP. The decision resolves a direct legal challenge to the OSP’s mandate, but it opens a more consequential governance question: how does Ghana maintain credible, independent anti-corruption prosecution when the executive branch holds a formal override mechanism?
That question carries weight well beyond Accra. As ECOWAS member states grapple with aligning their anti-corruption frameworks to the African Union Convention on Preventing and Combating Corruption, Ghana’s institutional design choices serve as a reference point for the region. A weakened OSP would not simply be a domestic setback; it would signal to regional peers and investors that anti-corruption mandates can be structurally neutralised without amending a single statute.
The Constitutional Architecture at Stake
The case originated with a challenge filed by private legal practitioner Noah Adamtey, who argued that Parliament had overstepped its authority by granting the OSP independent prosecutorial powers under Act 959. His argument rested on Article 88 of Ghana’s 1992 Constitution, which vests prosecutorial authority exclusively in the Attorney-General. Adamtey contended that creating a parallel prosecutorial body through ordinary legislation, without a constitutional amendment, was fundamentally incompatible with that provision.
The Attorney-General’s office supported the challenge in a significant respect, arguing that while prosecutorial powers can be delegated, such delegation must remain under active supervision and cannot be permanently vested in an independent institution. The Court’s ruling threaded that needle: it validated the OSP’s existence and its statutory powers, including its authority to enter a nolle prosequi under Act 959, but confirmed that the Attorney-General’s constitutional authority sits above it.
Critically, the Court also ruled that the OSP could not join the proceedings as an interested party, holding that the constitutional questions could be resolved between the original plaintiff and the Attorney-General. Civil society organisations were admitted as participants, a procedural acknowledgment of their institutional role in Ghana’s anti-corruption architecture.
Political Cost as an Institutional Check
Dr. Kojo Asante, Director of Policy Engagement and Partnerships at the Centre for Democratic Development Ghana (CDD-Ghana), argues that the Attorney-General’s formal override power is constrained in practice by political accountability. “I don’t envisage a situation where the Attorney-General, maybe through its supervisory activities, will be entering nolle prosequi to stop the OSP. Then, that will also invoke a certain political cost,” he told Channel One TV’s The Point of View on 29 July.
Dr. Asante’s framing is analytically significant because it locates the real check on executive overreach not in statute but in public accountability. “Lots of people will ask questions on why the Attorney-General is withdrawing cases by the OSP,” he noted, adding that all such actions “must be done in accordance with the law, and done properly, so that it doesn’t cause disruptions to these institutions.”
This argument has force, but it also exposes a structural vulnerability. Political cost is a deterrent that varies with electoral cycles, public attention, and media freedom. It is not a justiciable constraint. Governance frameworks that rely primarily on reputational deterrence, rather than procedural safeguards, tend to erode under sustained political pressure, a pattern documented across multiple West African jurisdictions where anti-corruption bodies have been progressively hollowed out through administrative rather than legislative means.
The Nolle Prosequi Mechanism and Its Dual Edge
One of the more technically significant aspects of the ruling concerns the nolle prosequi power, the legal instrument by which a prosecution can be discontinued. Act 959 grants the OSP this power directly. Dr. Asante argues that the Court’s affirmation of the statute’s constitutionality necessarily covers that provision. “The current OSP law gives the OSP the power of nolle prosequi, so if the court is affirming the constitutionality of the statute, with all the terms the OSP can operate, I think that affirmation also covers the nolle prosequi,” he said.
The Court’s position, as Dr. Asante reads it, is that the Attorney-General can reclaim those powers only by returning to Parliament to amend or repeal Act 959. “If you want to trigger that process, then you have to change the terms within which you are asking the OSP to operate,” he explained. That procedural requirement is not trivial: legislative amendment requires parliamentary debate, public scrutiny, and political capital, all of which function as friction against arbitrary executive action.
Yet the same mechanism that protects the OSP’s prosecutorial autonomy also creates a potential tool for obstruction. An Attorney-General who chooses to exercise the constitutional override, even once, on a high-profile case would effectively signal to investigators, prosecutors, and witnesses that OSP proceedings carry executive-level political risk. The chilling effect on institutional behavior could be substantial, regardless of whether the power is used repeatedly.
Regional Benchmarks and Comparative Institutional Design
Ghana’s OSP was established in 2017 partly in response to persistent criticism that the country’s existing prosecutorial institutions lacked the independence and specialisation to pursue complex corruption cases effectively. The model drew on comparable bodies in other jurisdictions, including Nigeria’s Economic and Financial Crimes Commission (EFCC) and Senegal’s Office National Anti-Fraude et Anti-Corruption (OFNAC), though each operates under distinct constitutional arrangements.
The critical comparative variable is the degree to which these bodies are insulated from executive discretion. Nigeria’s EFCC, for instance, has faced documented interference through politically motivated leadership changes, a pattern that has periodically undermined its credibility with international investors and multilateral partners. Senegal’s OFNAC has operated with greater procedural insulation but more limited prosecutorial reach. Ivory Coast has pursued anti-corruption mandates largely through executive-directed mechanisms, which have drawn scrutiny from governance observers for their selective application.
Against this regional backdrop, Ghana’s OSP represents a more ambitious institutional design. The Supreme Court’s ruling preserves that design while introducing a formally acknowledged vulnerability. Whether Ghana’s governance environment can sustain that balance depends on the durability of the political accountability mechanisms Dr. Asante references, and on Parliament’s willingness to defend the OSP’s statutory mandate against executive encroachment.
Investor Confidence, AfCFTA Alignment, and the Governance Dividend
The OSP’s institutional credibility has direct implications for Ghana’s investment environment and its positioning within the AfCFTA framework. Foreign direct investment flows to West Africa are demonstrably sensitive to anti-corruption governance quality: the World Bank’s 2023 Doing Business indicators and the Ibrahim Index of African Governance both weight rule-of-law and anti-corruption enforcement as primary determinants of investment climate ratings.
Ghana has historically traded on a governance premium relative to regional peers, attracting capital in sectors from oil and gas to financial services partly on the basis of its institutional reputation. A perception that the OSP’s prosecutorial independence is structurally compromised, whether through active executive interference or the mere visibility of the override mechanism, would erode that premium at a moment when Ghana is competing for AfCFTA-linked investment and regional hub status against Abidjan and Lagos.
The Parliament of Ghana now holds the decisive institutional lever. The Court has clarified that amending Act 959 is the only legitimate path through which the Attorney-General can formally reclaim prosecutorial authority over the OSP. Parliament should treat any such amendment proposal as a governance stress test requiring transparent public deliberation, independent legal analysis, and explicit alignment with Ghana’s AU anti-corruption treaty obligations. The OSP’s value to Ghana’s institutional architecture, and to West Africa’s broader governance credibility, rests on that legislative firewall holding.
