Deputy Attorney-General and Minister for Justice, Dr Justice Srem-Sai, has defended the High Court’s ruling that the Office of the Special Prosecutor (OSP) Act cannot override the constitutional powers of the Attorney-General.
According to him, the Office of the Special Prosecutor Act, 2017 (Act 959) is an ordinary Act of Parliament and therefore cannot amend or alter provisions of the 1992 Constitution without following the constitutionally prescribed amendment process.
Dr Srem-Sai argued that Article 88 of the Constitution vests prosecutorial authority in the Attorney-General, and Parliament cannot transfer or modify that constitutional mandate through ordinary legislation.
“The OSP Act is an ordinary legislation passed under Article 106, not under the constitutional amendment procedures. So, it is difficult for me to say or to accept the view that the OSP Act has changed the provision of the Constitution,” he said.
Dr Srem-Sai maintained that the Constitution clearly sets out the procedure for amending its provisions, and that no ordinary legislation can be used to bypass that process.
He said the various constitutional review commissions and committees established over the years were based on the understanding that constitutional provisions could only be changed through the amendment procedures stipulated by the Constitution.
The Deputy Attorney-General also referred to previous Supreme Court decisions, saying the apex court had consistently held that Parliament could not amend constitutional provisions through ordinary legislation.
“There have been several cases where Parliament sought to make changes to things that were in the Constitution, and the Supreme Court has been emphatic that you cannot do so without using the special procedures for amendment,” he stated.
Dr Srem-Sai further rejected suggestions that the High Court erred in concluding that the OSP Act could not supersede the Constitution.
“It is difficult for me to say that the judge’s conclusion is not correct. I don’t know how else anyone could have concluded, considering that the OSP Act is not an amendment of the Constitution,” he said.
The debate follows a constitutional challenge to the prosecutorial powers of the OSP, with legal practitioners and governance experts divided over the extent of the Office’s independence and its relationship with the Attorney-General.
Supreme Court to Rule on OSP’s Prosecutorial Powers
Meanwhile, the Supreme Court is expected to deliver its judgment on July 29, 2026, in a case challenging the prosecutorial powers of the OSP.
The case was filed by private legal practitioner Noah Adamtey, who is challenging provisions of the OSP Act that grant the Special Prosecutor independent powers to initiate, conduct and terminate criminal prosecutions.
Mr Adamtey argues that those provisions are inconsistent with Articles 1(2), 88(3) and (4), 93(2) and 296 of the 1992 Constitution and should therefore be declared null and void.
The Attorney-General, represented by Dr Srem-Sai, maintains that Article 88(3) places prosecutorial authority exclusively in the hands of the Attorney-General and that Parliament acted unconstitutionally by requiring the Attorney-General to delegate part of those powers to the OSP.
In January, the Supreme Court rejected an application by the OSP to join the case as an interested party, ruling that the constitutional issues could be determined between the plaintiff and the Attorney-General.
However, the Court allowed 14 civil society organisations to join the proceedings. The organisations, including Transparency International Ghana, CDD-Ghana, IMANI Africa and the Ghana Anti-Corruption Coalition, say their intervention is aimed at supporting constitutionalism, accountability, the fight against corruption and the protection of independent public institutions.
Story by Freedom Etsey Lavoe