Cutting noses to spite faces - Yaw Boadu Ayeboafoh writes

The 1992 Constitution of Ghana is certain without ambiguity.

The Attorney General has been provided for under Article 88. Clause (1) states that "there shall be an Attorney General of Ghana who shall be a Minister of State and the principal legal adviser to the Government”, while Clause (2) provides that "the Attorney General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President or imposed on him by this Constitution or any other law".

Furthermore, Clause (3) insists that "the Attorney General shall be responsible for the initiation and conduct of all prosecutions of criminal offences".

Article 88(4) constraints bodies with the power to prosecute, except those imposed by law or with the expressed permission or authority of the Attorney General.

It states that “all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney General or any other person authorised by him in accordance with any law".

Here is where the matter of the authority of the Office of the Special Prosecutor comes into play in the face of the ruling of an Accra High Court that the OSP has no power to prosecute, except with the expressed authority of the Attorney General.

Act

The preamble to the Office of Special Prosecutor Act 2017, (Act 959) provides pointedly that it is "An Act to establish the Office of the Special Prosecutor as a specialised agency to investigate specific cases of alleged or suspected corruption and corruption-related offences involving public officers and politically exposed persons in the performance of their functions, as well as other persons in the private sector involved in the commission of alleged or suspected corruption and corruption-related offences, prosecute these offences on the authority of the Attorney General and provide for related matters".

Sections 1, 2 and 3 of Act 959 are unequivocal that the OSP has the power to investigate and prosecute. Indeed, Section 3 (1) (h) empowers the OSP to act on referrals from Parliament, the Auditor General, the Commission on Human Rights and Administrative Justice, the Economic and Organised Crime Office and any other public body.

Even if rebuttable, the understanding of Article 88(2) and the preamble and Sections 1, 2 and 3 of Act 959 is that there is an automatic grant of authority from the Attorney General to the OSP to undertake prosecutions provided for in instruments under the OSP law.

Thus, if there is a problem, the relevant instruments must be reviewed in order not to obfuscate the intention of Act 959 to insulate such prosecutions from political interference, which the law was established to cure.

In any case, Ghanaians have decried the combination of the AG office and the Minister of Justice and continuously called for the decoupling of the two offices to avoid any politically partisan mischief.

But the issue goes beyond whether the authority has been granted by default under Act 959, to whether the AG can abandon the interests of the state by teaming up with an individual to undermine the interests of the state by equipping the OSP with the mandate to prosecute offenders.

For the law is clear about the role of the AG in defending the interests and cause of the state at all times. 

The Attorney General is the principal legal officer to the government, the principal prosecutor for criminal offences and the officer or person with overall responsibility for all civil litigation by and against the state.

Article 88(5) commits the Attorney General thus: "The Attorney General shall be responsible for the institution and conduct of all civil cases on behalf of the State and all civil proceedings against the State shall be instituted against the Attorney General", for which reason, the Attorney General is granted permission in every court in the country thus, "the Attorney General shall have audience in all courts in Ghana” Article 88(6).

How much and how long will it take, under the Act 959, for the AG to grant the OSP authority to prosecute, to effect the necessary remedy, of insulating such prosecutions from real, constructive or perceived politically partisan overtures.

In a similar situation, when Mr Tsatsu Tsikata sought to challenge the legitimacy of the Fast Track High Court, the AG did not abandon the state to join the claimant even when the Supreme Court, by a 5:4 majority, upheld the claim.

The application for review where the court overturned its earlier verdict by a 6:5 vote against one of the arguments presented by the AG, Nana Addo Dankwa Akufo-Addo, was about exceptional circumstances that if the decision was allowed to stand, it could imperil hundreds of civil and criminal cases determined by the Fast Track High Courts and the fact that Supreme Court justices participated in processes leading to the establishment of the court.

OSP

The matter of the OSP is not about Mr Kissi Adjabeng. It is a matter of the State, the nullification of a law passed by Parliament, which has been applied against some Ghanaians.

The AG has, since assuming office in January 2025, collaborated with or constructively supported the OSP in prosecutions from its investigations.

Is it now that some public officials within the current administration have been enmeshed in the web of the OSP that the AG is turning his back towards the OSP, or is it because he cannot enter a nolle prosequi to acquit the suspects?

How can the chief legal officer of the nation file a motion to support an individual against the state and expect to be paid a salary?

At worst, he could advise against pursuing the matter by stating that the state does not have a case or brief a private counsel to represent the state.

The AG can decide that there is no need to contest or recommend a settlement.

In defending the interests of the State, he can suggest not contesting, settling or discontinuing a case. But that is different from filing a motion to support a claimant against the state.

Thus, the exercise of the discretion must be lawful, not based on ill will and bad faith. 

While President John Dramani Mahama continues to applaud the values of the OSP and the need not to beguile it, the AG is bent on the path of eroding the mandate of the OSP through the judicial process, such that the executive could escape accusations of manipulation.