The Supreme Court of Ghana has dismissed the Office of the Special Prosecutor’s (OSP) bid to join a constitutional lawsuit that challenges the office’s core powers. The ruling prevents the OSP from participating in proceedings that could determine how its mandate is interpreted and enforced.
In a unanimous decision, the court held that the OSP is not a necessary party in the lawsuit filed by legal scholar and private citizen Noah Ephraim Tetteh Adamtey, effectively excluding the office from the case. The court added that issues surrounding the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959), can be fully addressed between the plaintiff and the Attorney-General, without the OSP’s direct involvement.
The OSP, represented by its Director of Prosecutions, Dr. Isidore Tufuor, argued that it could not remain a bystander while its foundational mandate was under challenge. Sections 4 and 33 of Act 959, which grant the OSP its independent mandate and the power to search for and seize suspected tainted property, are the specific provisions targeted by Mr. Adamtey’s suit. Dr. Tufuor maintained that, although the case appears to target the State, it fundamentally questions the constitutionality of the OSP’s powers, adding that “the reliefs sought in the substantive action directly affect the OSP.”
In a notable turn, Deputy Attorney-General Dr. Justice Srem-Sai, recently appointed by President Mahama to lead the Operation Recover All Loot (ORAL) initiative, opposed the OSP’s participation. He argued that, as a creation of the Legislature, the OSP has no independent proprietary interest in defending the law that established it, stating: “The OSP has no independent interest in the matter… It is Parliament, as the creator of the office, that must answer for the constitutionality of the law establishing it.”
Echoing this position, plaintiff Mr. Adamtey, known for his recent constitutional challenges against the Electoral Commission, asserted that the OSP’s role in the litigation had been misconceived. He added that the office lacks the private or proprietary interest required to justify its participation as a party to the suit.
The ruling leaves the Attorney-General as the sole defender of the OSP’s independence, a decision coming at a sensitive time as the office handles high-profile cases, including the prosecution of former Finance Minister Ken Ofori-Atta.
