I’m sorry but I don’t understand what my brother, Justice Sai, who is also the Deputy AG, is saying.
He states that the High Court has ordered his office to take over all OSP prosecutions until the OSP demonstrates it has the required authorisation. The order arose from a challenge by an accused person, and he indicates he will comply and begin steps to implement the ruling.
Let’s analyze what my brother is saying.
First, let’s assume, for the sake of argument, that the High Court is right and that the Office of the Special Prosecutor (OSP) requires express authorisation from the AG before prosecuting.
Even on that assumption, my bother’s present posture is difficult to defend.
If “authorisation” is all that is lacking, then the most faithful response to the statutory scheme is straightforward: issue the authorisation.
The law cannot reasonably be read to create an anti-corruption prosecutor whose work can be halted indefinitely by administrative omission. A curable defect calls for a curative response, not institutional displacement.
Second, the logic of the Court’s order sits uneasily with the AG’s own position.
If the prosecutions were indeed unlawful for want of authorisation, then on what basis does the AG now seek to inherit and continue those same prosecutions?
One cannot simultaneously condemn a process as unauthorized and then adopt its fruits. That is not merely inconsistent; it raises the classic concern of proceeding on the fruit of a poisoned tree.
Third, the deeper structural point cannot be ignored. The OSP did not emerge in a vacuum:
It was the AG who sponsored the OSP Act;
The AG was responsible for the regulatory framework, including LI 2374, which operationalizes investigations and prosecutions;
Regulation 11 of L.I. 2374, made by the AG provides that the Special Prosecutor “shall…take a decision whether or not to prosecute” upon considering the evidence.
And it was the AG who nominated the Special Prosecutor, leading to presidential appointment and parliamentary approval.
It is therefore difficult to sustain a reading under which the AG constitutes the Office, equips it to investigate and prosecute, and yet retains a latent veto over its core function.
LI 2374, promulgated by the AG, vests prosecutorial judgment within the Office itself and doesn’t require any further authorization. To now insist on prior authorisation is to contradict the very structure the AG promulgated.
Fourth, the remedy ordered by the High Court raises serious jurisdictional and constitutional concerns. A High Court may interpret statutes and determine the legality of proceedings before it.
But directing the AG to take over all prosecutions of a constitutionally created office is not a mere case-specific order. It is a structural reallocation of prosecutorial power.
That raises the question that my brother should concern himself with:
Does a High Court, in resolving a challenge by an accused person, have the jurisdiction to effectively reconfigure the operational control of a statutory anti-corruption body across all cases?
Such an order goes beyond adjudication and approaches institutional redesign, a function ordinarily reserved for Parliament or, at the very least, for appellate constitutional clarification.
Fifth, and critically, this development cannot be viewed in isolation. There is a pending challenge before the Supreme Court of Ghana in which the AG has sided with a plaintiff questioning the constitutionality of the OSP itself.
While that case does not determine the High Court’s ruling, it provides essential context.
The AG is simultaneously supporting the curtailment of the OSP’s powers in one forum and its invalidation in another.
That convergence raises serious concerns about the AG’s consistency, institutional role, and commitment to the integrity of the anti-corruption framework.
It begins, I’m afraid to say, to look less like interpretation and more like institutional attrition through parallel processes.
GOGO’s final take is that even if the Court’s construction of “authorisation” were accepted:
- The rational response is to issue the authorisation, not disable the institution;
- The AG cannot coherently both disavow and adopt the same prosecutions;
- The breadth of the Court’s remedy raises serious questions about jurisdiction and constitutional propriety; and
- The parallel posture of the AG in ongoing litigation raises deeper concerns about the systematic weakening of the OSP.
What is at stake is not a technical defect. It is whether a statutory mechanism designed to fight corruption will be enabled or quietly neutralized through procedure.
We have come too far to be complicit in the quiet dismantling of our anti-corruption architecture.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!.
Source: Prof Azar’s Facebook page
Editor’s note: Views expressed in this article do not represent that of The Chronicle
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