Ghana's legal and governance landscape is currently embroiled in a significant debate concerning the prosecutorial powers of the Office of the Special Prosecutor (OSP) and its relationship with the Attorney-General (AG), particularly in light of Article 88(4) of the 1992 Constitution and the OSP Act, 2017 (Act 959). This complex issue has been exacerbated by recent High Court rulings, leading to calls for clarity and a unified government position on the future of anti-corruption efforts.

A central point of contention revolves around the interpretation of Article 88(4) of the 1992 Constitution, which states that prosecutions may be conducted by the Attorney-General or 'any other person authorised by him in accordance with any law'. Member of Parliament for Mpraeso, Davis Opoku Ansah, argues that this provision unambiguously empowers the OSP to prosecute corruption-related offences without requiring case-by-case authorisation from the AG. He asserts that Parliament, in establishing the OSP through Act 959, acted within its constitutional remit, creating the 'statutory framework envisioned under Article 88(4)' that provides a standing, institutional framework for prosecutorial authority. Opoku Ansah warns that judicial inconsistencies risk undermining the fight against corruption and emphasizes that the OSP remains lawfully empowered until the Supreme Court rules otherwise.

This view is strongly supported by an unnamed legal expert, who further elaborates on the intent behind Act 959. The expert highlights that the OSP Act's preamble explicitly states the OSP will prosecute 'on the authority of the Attorney-General', and Section 4 of the Act clarifies, 'Subject to clause (4) of article 88 of the Constitution, the Office shall, for this Act, be authorised by the Attorney-General to initiate and conduct the prosecution of corruption and corruption-related offences.' This, they argue, constitutes an express, durable, and institutional authorisation, not a requirement for case-by-case delegation. The expert points out that the Act was laid before Parliament by the then Attorney-General, Gloria Akuffo, which should bind successive occupants of the AG’s office, ensuring government continuity. The argument against case-by-case authorization is further strengthened by the impracticality of such a system, questioning what happens if an AG leaves office mid-prosecution. Section 4(1) of the OSP Act also reinforces this by stating the OSP shall not be subject to the direction or control of anyone in the discharge of its duties, implying operational independence once authorised.

However, the stance of the Attorney-General's Department and recent High Court rulings present a contrasting interpretation. Deputy Attorney-General and Minister for Justice, Dr. Justice Srem Sai, confirmed that the AG's office would assume control of cases currently being prosecuted by the OSP. This follows a High Court order prompted by a legal challenge from an accused person, Peter Archiblod Hyde, who questioned the OSP's authority without prior AG authorization. The High Court, presided over by Justice John Eugene Nyadu Nyante, ruled that the OSP could not demonstrate it had obtained the necessary authorisation, thus ordering affected cases to be handled by the AG. Dr. Srem Sai stressed the AG's commitment to upholding judicial authority.

This judicial position echoes arguments made years ago by Haruna Iddrisu, current Minister for Education and former Minority Leader. In 2017, during parliamentary deliberations on the OSP bill, Mr. Iddrisu cautioned that the proposed law was 'pregnant with constitutional flaws,' arguing that it risked creating an 'illegal child' by infringing on the AG's constitutionally vested prosecutorial authority. He questioned the necessity of an independent Special Prosecutor when the AG already held the mandate and highlighted potential overlaps with other investigative bodies. The recent High Court ruling has been seen by many, including Mr. Iddrisu, as a vindication of his earlier concerns.

Concerns about the High Court's jurisdiction have also been raised. Frank Davies, a member of the legal team for former Finance Minister Ken Ofori-Atta, expressed disappointment at the 'hurried' manner in which the High Court judge handled the matter, especially since a related constitutional issue is pending before the Supreme Court. He argued that lower courts should exercise restraint when constitutional interpretation matters are before the apex court, which is the sole body mandated to interpret the Constitution.

The contradictions and uncertainties have prompted strong reactions from civil society. Dr. Kojo Pumpuni Asante, Director of Public Engagement and Partnerships at the Centre for Democratic Development (CDD-Ghana), urged the government to provide clear direction on the OSP's future. He warned that mixed signals from the Presidency and the Attorney General are creating confusion, undermining Ghana’s anti-corruption efforts, and weakening public trust. Dr. Asante questioned why the government would allow the matter to remain in legal and political limbo, describing it as 'wasting public money and dwindling trust in the state.' He highlighted a long history of debates on anti-corruption institutional design in Ghana, leading to the OSP's establishment in 2017 to ensure greater independence in corruption investigations and prosecutions.

Similarly, Sulemana Braimah, Executive Director of the Media Foundation for West Africa (MFWA), questioned the consistency of the government's anti-corruption posture. He noted that earlier parliamentary attempts to scrap the OSP were reportedly halted by presidential intervention, making the AG's current legal challenge puzzling. Braimah argued that dissatisfaction with an institution's performance should lead to reform and strengthening, not abolition. He reiterated that the OSP was created precisely to address the limitations of an Attorney-General, as a political appointee, prosecuting corruption cases involving members of the same government. Both civil society leaders stressed that the ongoing uncertainty is unhelpful, potentially making it easier for accused persons to escape accountability, and called for greater coherence and a definitive position from the government.

The debate underscores the critical need for a clear and unified legal framework for anti-corruption institutions in Ghana. While the Attorney-General maintains its commitment to judicial respect, and the OSP's proponents assert its constitutional grounding and operational independence, the differing interpretations and judicial directives create significant instability. Until the Supreme Court provides a definitive interpretation, the effectiveness and credibility of Ghana's fight against corruption remain under considerable scrutiny, risking public confidence in governance and accountability.