Prof. Henry Kwasi Prempeh, Executive Director of the Centre for Democratic Development (CDD-Ghana), says the legal and constitutional foundation of the Office of the Special Prosecutor (OSP) was problematic from the very beginning.
Speaking on Channel One TV’s The Point of View with Bernard Avle on Monday, December 8, Prof. Prempeh recounted the events leading to the passage of the OSP Act, noting that extensive discussions were held with Parliament’s Legal Affairs Committee during a retreat in Koforidua before the bill was approved.
He revealed that the question of the OSP’s independence sparked some of the most difficult debates, given Ghana’s long-standing legal and constitutional traditions.
Prof. Prempeh explained that the OSP was designed to exercise prosecutorial powers that the Constitution assigns exclusively to the Attorney-General—an arrangement he described as legally “not very neat.”
According to him, while the intention behind creating the OSP was understandable, the structure presents real constitutional challenges, particularly in relation to Article 88, which places prosecutorial authority under the Attorney-General’s supervision.
He acknowledged that the current setup contains inherent constitutional difficulties and noted that removing the Attorney-General’s supervisory role entirely would almost certainly conflict with the Constitution.
“I understand the argument around the constitutionality of the Office. We had an engagement with the Legal Affairs Committee of Parliament, and it was a tough conversation. It’s not very neat,” he recalled.
“We are fairly conservative in legal tradition. And this is actually quite radical: trying to parcel off a position of power that belongs by constitutional fiat, exclusive to an Attorney General, and saying that you are going to loan or donate some of that to a third party who will normally be under the AG’s supervision.”
He added, “I mean, the independence issue was a tough one. And so I concede that it was not neat. And that there was very little one could do. I concede that if you’re looking at it strictly, there are difficulties with this arrangement. But there’s no way to take the Attorney-General’s supervision out, without infringing Article 88.”
Prof. Prempeh’s comments come amid renewed calls by Majority Leader Mahama Ayariga and some Members of Parliament for the abolition of the OSP, with its functions returned to the Attorney-General’s Department.
Addressing Parliament on Wednesday, December 4, Mr Ayariga questioned why the Attorney-General’s Department continues to face severe resource constraints while substantial funds are allocated to the OSP, which he argued has not delivered expected results.
The future of the OSP remains at the centre of public and parliamentary debate as stakeholders weigh potential reforms to Ghana’s anti-corruption framework.
