Private legal practitioner Kwame Adofo has challenged the constitutional basis for ongoing investigations by the Office of the Special Prosecutor (OSP), arguing the anti corruption agency may be operating beyond its legal mandate without prior authorization from the Attorney General.
Speaking November 3 on The Forum program on Asaase Radio, Adofo contended that Section 4(2) of the Office of the Special Prosecutor Act, 2017 (Act 959) requires the OSP to obtain clearance from the Attorney General before proceeding with investigations and prosecutions. The provision states the Office “shall for the purposes of this Act be authorised by the Attorney General to initiate and conduct the prosecution of corruption and corruption related offences,” subject to Article 88 of the 1992 Constitution.
“I am just surprised nobody has challenged him in all the cases that he has conducted, whether he has been authorised by the Attorney General or whether Parliament has referred it to him,” Adofo stated. “Otherwise, he doesn’t have the mandate, and that is also taken out from Article 88.”
Article 88 of Ghana’s Constitution vests prosecutorial power exclusively in the Attorney General, who serves as the government’s principal legal advisor and head of the public prosecution system. The Attorney General currently is Dr. Dominic Akuritinga Ayine, appointed by President John Dramani Mahama in January 2025 and confirmed by Parliament following vetting.
Adofo rejected characterizations of the relationship between the OSP and Attorney General as collaborative equals. “This should explain to you clearly that the Attorney General is the boss of the OSP,” he said. “During the press conference, you could hear him say they are collaborating with the Attorney General. You cannot collaborate with your boss. After your investigation, you go back to your bosses and seek counsel on the next step to take.”
The remarks come amid intensified OSP activity under Special Prosecutor Kissi Agyebeng, who assumed office in August 2021 following unanimous parliamentary approval. Agyebeng holds teaching credentials from the University of Ghana School of Law, where he lectured for 15 years in criminal law and international humanitarian law before his appointment.
The OSP recently completed investigations into Strategic Mobilisation Ghana Limited (SML), concluding in an October 30 press conference that contracts valued at 1.4 billion cedis were secured through false claims and procedural violations. Agyebeng announced plans to formally charge former Finance Minister Ken Ofori Atta and several officials by late November 2025, following evidence of financial irregularities.
Ofori Atta was declared a fugitive in February 2025 after failing to honor multiple OSP summonses, with his status reinstated in June following continued absence despite legal assurances of return. An Interpol Red Notice remains active to facilitate extradition from the United States, where he reportedly remains for medical treatment.
At the October briefing, Agyebeng emphasized cooperation with the Attorney General’s office, stating “there is no tension or misunderstanding between the two institutions regarding the ongoing extradition and prosecution processes.” He dismissed speculation about friction as baseless, asserting both offices share commitment to due process.
However, Adofo interpreted the operational relationship differently, arguing that Act 959 establishes the Attorney General’s supervisory authority over OSP prosecutions. Section 4(3) of the statute specifies that Parliament may request OSP investigations independently, suggesting dual authorization pathways beyond Attorney General control.
“If you read the mandate, it says once he has been referred nobody can dictate to him,” Adofo acknowledged. “But until the precondition is met, it should be authorised by the Attorney General, and we need to get it interpreted.”
The OSP was established in 2017 as part of Ghana’s anti corruption reforms, designed to reduce political interference in prosecuting graft cases. The enabling legislation created operational independence for investigations once matters are formally referred, while maintaining constitutional alignment with the Attorney General’s prosecutorial monopoly.
Justice Yaw Appau of the Supreme Court of Ghana addressed this tension during a May 2021 Leadership Dialogue, observing that the OSP “is not as independent as ordinary Ghanaian walking on the street perceive it to be.” Appau noted Section 4(2) of Act 959 subjects the Special Prosecutor to Attorney General control, potentially preventing autonomous operation despite the office’s anticorruption mandate.
Martin Amidu, the first Special Prosecutor who served from 2018 to 2020, resigned citing interference with his independence. Amidu’s November 2020 departure followed conflicts with the presidency over corruption risk assessments, highlighting institutional tensions between operational autonomy and constitutional subordination.
Adofo further questioned Agyebeng’s public statements during active investigations, suggesting such commentary prejudices legal proceedings and violates constitutional presumption of innocence. “The way he was making categorical statements about people under investigation is creating a big problem for the lawyers who must defend their clients,” Adofo said. “Holding press conferences as if these people are guilty already is a breach of the constitution.”
Legal experts note the constitutional ambiguity stems from balancing two objectives: creating an independent anti corruption prosecutor insulated from political pressure while preserving the Attorney General’s constitutional authority over state prosecutions. The framework attempts operational independence within structural accountability, producing ongoing interpretation questions.
The Attorney General’s office has not issued public statements addressing authorization protocols for OSP investigations. Dr. Ayine’s Operation Recover All Loots (ORAL) initiative, launched to prosecute financial misconduct and recover misappropriated funds, operates through conventional Attorney General prosecution channels rather than OSP mechanisms.
Agyebeng has advocated embedding the OSP within the Constitution to clarify its status. Speaking at the March 2025 Constitution Day Public Lecture, he argued the current legal framework under Act 959 creates ambiguity and complexity. “We must transform the constitution by integrating anti corruption concepts and institutions into its structure,” Agyebeng stated.
The Special Prosecutor called for specialized anti corruption courts, unexplained wealth investigations extending beyond public officials, and lifestyle audits enshrined constitutionally. These proposals reflect frustration with prosecutorial challenges including proving corruption cases and navigating relationships between lawful and unlawful conduct.
Adofo cited the OSP’s handling of former Sanitation Minister Cecilia Dapaah’s case as illustrative of institutional shortcomings. The OSP transferred that investigation to the Economic and Organised Crime Office (EOCO) after initial proceedings, with courts subsequently dismissing aspects of the case. “He came into office in 2021, and we are in 2025. Can he account for his stewardship? Has he secured a single conviction in four years?” Adofo asked.
The debate highlights tensions inherent in Ghana’s anti corruption architecture, where institutional independence must reconcile with constitutional prosecution frameworks. Whether the OSP operates with sufficient Attorney General authorization for its investigations remains subject to legal interpretation, potentially requiring judicial clarification or legislative amendment to resolve structural ambiguities.
Source: newsghana.com.gh
