Kwame Akuffo: Transferring AG Powers to OSP Without Amendment is Unconstitutional

Private legal practitioner Kwame Akuffo has asserted that attempts to grant the Office of the Special Prosecutor (OSP) prosecutorial powers currently vested in the Attorney-General without a constitutional amendment are legally unsound.

Speaking on JoyNews’ Newsfile on Saturday, Mr Akuffo explained that while the OSP was established to independently investigate and prosecute corruption, its authority cannot supersede the constitutional mandate of the Attorney-General.

He argued that Article 88 of the 1992 Constitution explicitly assigns prosecutorial power to the Attorney-General, making any attempt to transfer this authority through subsidiary legislation unconstitutional. “The idea that the OSP can work entirely on its own, without any direction or intervention from the Attorney-General, for me, is not proper law,” he stated. “Constitutionally, the Attorney-General is the only person mentioned and authorised with prosecutorial power. A subsidiary legislation cannot hive off constitutional powers and give them to the OSP.”

Mr Akuffo clarified that the OSP’s independence, as outlined in its establishing Act, must be interpreted within the framework of the Constitution. He believes any transfer of the Attorney-General’s prosecutorial authority to the OSP without amending the Constitution is fundamentally flawed.

“I was one of those who said it was unconstitutional to the extent that it sought to hive off Article 88 powers,” he reiterated. “You cannot take part of the Constitution and give it to a third party through a subordinate law.”

He emphasized that the Attorney-General retains the constitutional power to supervise prosecutions and discontinue cases (nolle prosequi), powers that remain applicable even to cases initiated by the OSP. The Attorney-General’s ability to issue legal directives, oversee prosecutions, and intervene in legal proceedings, he added, underscores the AG’s constitutional seniority.

“The law should be interpreted in such a way that the Attorney-General supports the OSP, but the OSP is not on the same constitutional level as the Attorney-General,” Mr Akuffo said. “The OSP is a working tool—an appendage of the Attorney-General’s office.”

The Office of the Special Prosecutor was created in 2017 as a key component of Ghana’s anti-corruption strategy, tasked with investigating and prosecuting corruption and related offenses involving public officials. The extent of its independence and its relationship with the Attorney-General have been subjects of ongoing legal and public discussion, particularly concerning the potential for political interference in prosecutions.

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