The Attorney General and Minister of Justice, Dr Dominic Ayine, through his deputy, Dr Justice Srem Sia, has pointed out that Parliament in 2017 erred when it vested prosecutorial powers in the Office of the Special Prosecutor (OSP) when it passed the Office of the Special Prosecutor Act, 2017 (Act 959).
The position of the Attorney General is contained in a draft statement of Defence in response to suit number J1/3/2026, entitled Noah Ephraem Tetteh Adamtey versus Attorney General, filed at the Supreme Court registry on 8 December 2025, which involved the original jurisdiction of the Apex Court of the land.
Reliefs Sought
Among others, the plaintiff (Noah Ephraem Tetteh Adamtey) in his action is seeking eight forms of relief from the highest court in the country. First is “a declaration that on a true and proper interpretation of Articles 1(2), 88, 93(2), and 296 of the 1992 Constitution, prosecutorial authority in Ghana is vested exclusively in the Attorney-General and cannot be exercised independently of, or in parallel with, the Attorney-General.”
Second, “a declaration that the Office of the Special Prosecutor Act, 2017 (Act 959), to the extent that it purports to confer original autonomous, or insulated prosecutorial authority on the Office of the Special Prosecutor, is inconsistent with and in contravention of Articles 1(2), 88(3) – (4), 93(2), and 296 of the Constitution and is therefore null, void and of no effect.”
Third, “a declaration that Sections 3(3) and (4) of Act 959, in purporting to make the Office of the Special Prosecutor independent of the Attorney-General in the initiation, conduct, and termination of prosecutions, violate the Constitution.”
Fourth, “a declaration that Parliament lacks the authority to enact legislation creating a prosecutorial body with powers equivalent to, or independent of, the Attorney-General, absent a constitutional amendment in accordance with Articles 289 – 290.”
Fifth, “a declaration that Parliament acted ultra vires its legislative authority under Article 93(2) in purporting, through Act 959, to compel a permanent delegation of the Attorney-General’s prosecutorial powers to the Office of the Special Prosecutor.”
Sixth, “a declaration that any statutory delegation of the prosecutorial authority made pursuant to Act 959 does not bind subsequent Attorneys-General unless re-authorized by that Attorney-General,”
Seventh, “An order striking down or severing the provisions of Act 959 that confer autonomous prosecutorial authority on the Office of the Special Prosecutor or insulate it from the Attorney-General’s constitutional control.”
Lastly, “any further orders or directions that [the] honourable Court considers just, equitable, and necessary to preserve the integrity of the Constitution and the prosecutorial architecture established under Article 88.”
AG Position
The Attorney General, after 36 paragraphs of argument in his draft statement of defence dated 1 April 2026 and signed by the Deputy Attorney General, Dr. Justice Srem Sai, pointed out that “the prosecutorial power of the Republic is created by the Constitution. The Constitution gave all that power to the Attorney-General alone.
“It, however, allows the Attorney General to authorize natural persons (not juridical persons) to exercise the power on behalf of the Attorney-General. This, like all authority, by law, creates a principal-agent relationship between the Attorney General and the person he so authorizes.”
Prayer of AG
The Attorney General further argued that “like all authority, therefore, the principal retains control over the agent’s exercise of the power. In the case before your Lordships, Parliament has enacted the Act as ordinary legislation.
“It has purported, without amending the Constitution to vary this significant constitutional power in a way that purports to devest some essential components of the power – the controls – from the Attorney-General to the Office (a juridical, rather than a natural, person).
“We submit that, by this conduct, Parliament has, without doubt, acted in excess of the power conferred on it by the Constitution. Your Lordships’ position on such conduct is well established in a long line of cases culminating in Prof Appiagyei-Atua versus Attorney-General.
“In that case, Amegatcher, JSC, spoke for your Lordships in the following hallowed words; It is well-settled that any legislation made in excess of the powers conferred on the legislature by the Constitution, 1992, which is inconsistent with any provision of the Constitution, would be declared null and void by the Supreme Court in the exercise of its power of judicial review under Article 130(1)(b) of the Constitution.
“As already hinted, it is an accepted principle that the rule of law constitutes the core of our Constitution, and it is the essence of the rule of law that the exercise of Parliament’s power to make laws should be within constitutional limitations.”
“Accordingly, we pray your Lordships to adjudge and declare that Parliament has, to the extent of purporting to vary the prosecutorial power of the Attorney-General, acted in excess of its powers,” the Attorney General’s argument concluded.
Request for time
The Attorney General is expected to move a motion on notice seeking leave from the Supreme Court to file his statement of defence out of time. The motion will be moved on Thursday, 16 April 2026.
If the Supreme Court grants the Attorney General leave, he will file the draft statement of case as his formal response to the action by entitled Noah Ephraem Tetteh Adamtey versus the Attorney General.
