A legal analysis by anti-corruption advocate Emmanuel Wilson Jnr has reignited debate over the independence of Ghana’s Office of the Special Prosecutor (OSP), questioning whether the office can operate autonomously under the current constitutional and legal framework.

In the article titled “Is the Special Prosecutor Independent?”, Wilson argues that despite public perception, the OSP is not fully independent and remains legally subject to the authority of the Attorney-General.

Attorney-General’s Constitutional Authority

Wilson grounds his argument in Articles 88(3) and 88(4) of Ghana’s 1992 Constitution, which vest the power to initiate and conduct criminal prosecutions solely in the Attorney-General or a person designated by the Attorney-General.

He notes that the Attorney-General also serves as a minister of state and the government’s principal legal adviser, raising concerns about potential political influence in prosecutorial decisions involving public officials.

Act 959 and the Limits of the OSP

The Office of the Special Prosecutor was established under the Office of the Special Prosecutor Act, 2017 (Act 959) to investigate and prosecute corruption-related offences. However, Wilson highlights that Section 4(2) of Act 959 explicitly requires the Special Prosecutor to obtain authorization from the Attorney-General before initiating or conducting prosecutions.

According to the analysis, without this authorization, the Special Prosecutor cannot lawfully proceed with any corruption-related prosecution.

“This makes it clear that the Attorney-General has jurisdiction over the Office of the Special Prosecutor,” Wilson argues, describing the OSP’s independence as limited rather than absolute.

The Meaning of “Independence”

Wilson draws a comparison with the Electoral Commission, which the Constitution explicitly protects from the direction or control of “any person or authority.” In contrast, Act 959 uses the phrase “a person”, which Wilson interprets as evidence that the OSP is accountable to an overseeing authority — namely, the Attorney-General.

He further argues that the law’s drafters deliberately avoided granting the OSP the same level of constitutional independence enjoyed by the Electoral Commission.

Conflict and Public Confidence Concerns

A central concern raised in the article is whether a Special Prosecutor operating under the Attorney-General’s supervision can effectively prosecute powerful political figures, especially when the Attorney-General may face political constraints.

Wilson questions how the OSP can pursue cases involving influential members of the governing party if the Attorney-General is unwilling or unable to grant approval due to political considerations.

“It is a well-known legal truth that the Special Prosecutor cannot take any action without the Attorney-General’s approval,” he states.

Comparative Perspective and Call for Reform

The article notes that some countries, including Kenya, Uganda and Ireland, have constitutional arrangements that separate public prosecution from the Attorney-General’s office. Ghana, however, follows a model in which prosecutorial authority remains centralized.

Wilson concludes that only a constitutional amendment, particularly to Article 88(4), can grant the Office of the Special Prosecutor true independence.

Until then, he cautions the public against assuming the OSP operates independently in the way many believe.

Conclusion

The analysis underscores a critical legal reality: while the OSP plays a vital role in Ghana’s anti-corruption architecture, its powers remain legally constrained by the Constitution and Act 959. As debates over accountability and political interference continue, Wilson’s article adds fresh urgency to calls for constitutional reform.