Parliament erred in Using an Ordinary Legislation to alter the Attorney-General's Prosecutorial Powers - Srem-Sai tells Supreme Court

In a high-stakes constitutional matter which will determine the survival of the Office of the Special Prosecutor (OSP), the Attorney-General (AG) has mounted a vigorous challenge against the legislative framework of the Office of the Special Prosecutor (OSP), arguing that Parliament overstepped its bounds by using ordinary legislation to diminish constitutional prosecutorial authority.

Represented by the Honourable Deputy Attorney-General, Dr. Justice Srem-Sai, the government has filed a motion for leave for an extension of time to formally submit its statement of case in the matter of Noah Ephraem Tetteh Adamtey v. The Attorney-General. The AG’s office noted that the slight delay in filing was necessitated by "unavoidable administrative procedures and internal consultations" and was not a result of bad faith.

The crux of the AG’s argument, detailed in a draft statement of case attached to the application, is that the Office of the Special Prosecutor Act, 2017 (Act 959) represents an unconstitutional attempt by Parliament to vary the exclusive powers of the Attorney-General.

Dr. Srem-Sai contends that Article 88(3) of the 1992 Constitution vests the initiation and conduct of all criminal prosecutions exclusively in the Attorney-General. The AG argues that the use of the word "all" by the framers of the Constitution was a deliberate choice to create a prosecutorial monopoly, intended to centralize this state power within a single office.

The AG further asserts that while the Constitution allows the AG to authorise other persons to prosecute, this is a discretionary power. According to the statement of case, Act 959 unconstitutionally compels the AG to delegate these powers to the OSP, effectively converting a constitutional discretion into a mandatory "donation" of power.

A primary pillar of the AG’s case is that Parliament lacks the authority to alter the constitutional architecture of prosecution through ordinary legislation. Dr. Srem-Sai argues that any attempt to "break" the AG’s monopoly or insulate a new prosecutorial body from the AG’s control requires a formal constitutional amendment under Articles 289 and 290, rather than a mere Act of Parliament.

The AG points out that Act 959 divests the office of essential tools for the control of prosecution, such as the power to enter a nolle prosequi or conclude plea bargains without the AG's recourse—powers which the state argues are constitutionally reserved for the Attorney-General alone.

In a novel legal argument, the AG also contends that prosecutorial power can only be delegated to natural persons (human beings) who are enrolled as lawyers, rather than to a juridical person or "Office". The AG argues that the "Office" of the Special Prosecutor is an artificial person and, as such, is an improper recipient of delegated prosecutorial authority under the current constitutional framework.

The Deputy AG is therefore praying the Supreme Court to declare that Parliament acted in excess of its powers and to strike down the provisions of Act 959 that purport to grant the OSP autonomous or insulated prosecutorial authority.

The motion for extension of time is expected to be moved on April 16, 2026, as the state seeks to formally bring these substantial constitutional arguments before the Justices of the apex court.