The recent High Court ruling involving the Office of the Special Prosecutor (OSP) has been described as lawful and factually grounded. According to legal interpretation, the decision was correct, and the judge did not err in delivering the judgment.
Under Ghanaian law, the OSP operates under the authority of the Attorney-General (AG), who holds all prosecutorial powers. As such, the OSP can only initiate prosecutions with prior authorisation from the Attorney-General’s office. Without this approval, the OSP lacks the legal mandate to prosecute cases.
Legal practitioner and constitutional lawyer Kwame Addofo shared this view during the Adekyee Mu Nsem morning show on Ahotor 92.3 FM, hosted by Kofi Owusu in Accra.
He reiterated that there is no legal basis for the OSP to independently carry out prosecutions. According to him, the office derives its authority from the Attorney-General and must formally seek permission before initiating any legal action.
Kwame Addofo further stated that, in his opinion, the judge demonstrated fairness in the ruling and acted within the bounds of the law. He explained that while the Attorney-General’s office is constitutionally established with prosecutorial authority, the OSP is not independent in that regard and must rely on the AG for such powers.
In a related development, former Deputy Attorney-General Joseph Kpemka has also defended the High Court’s decision, which effectively stripped the OSP of its prosecutorial powers.
His comments follow the ruling by the High Court in Accra, which declared all ongoing prosecutions initiated by the OSP null and void. The court further directed that such cases be transferred to the Attorney-General pending formal authorisation and imposed costs of GH₵15,000 against the OSP.
The case in question involves four individuals, including officials from the National Insurance Commission and the Office of the Vice President, accused of conspiring to fraudulently seize containers using forged documents.
Kpemka clarified that the court’s decision was not an interpretation of the law but rather a determination based on the OSP’s failure to comply with statutory requirements.
“Let me state clearly that the High Court, from what I read, did not interpret the Act. That is not what the High Court set out to do. If it had attempted to interpret the law, that would have been a nullity from the outset, as the High Court does not have the constitutional authority to interpret legislation,” he said.
He explained that the ruling was based on the absence of the required authorisation from the Attorney-General before the OSP initiated prosecutions.
“In simple terms, the law requires the OSP to operate within its limits by obtaining authorisation from the Attorney-General. Since that authorisation was not granted following the passage of Act 959, the court found that the OSP had not complied with the law and therefore lacked the power to prosecute,” he stated.
Kpemka further suggested that the issue reflects earlier administrative oversights following the establishment of the OSP.
“At the time, the passage of Act 959 was met with widespread enthusiasm, and any attempt to regulate or guide the Special Prosecutor’s actions was often perceived as interference. As a result, the necessary authorisation was not properly secured,” he explained.
He added that it was the responsibility of the OSP to formally request or legally compel the Attorney-General to grant the required approval.
“It was incumbent upon the Special Prosecutor, once the office was established, to formally request authorisation from the Attorney-General. If that was not forthcoming, the office could have sought a court order to compel compliance. While the failure to grant authorisation may have been an oversight, the OSP was expected to take the necessary steps to secure it,” he concluded.
