Adamtey v Attorney-General (J1/3/2026) [2026] GHASC 60 (29 July 2026)

Page 1 of 98

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2026

Coram

BAFFOE-BONNIE CJ (PRESIDING) PWAMANG JSC LOVELACE-JOHNSON (MS.) JSC KULENDI JSC GAEWU JSC DZAMEFE JSC SUURBAAREH JSC

WRIT NO. J1/3/2026

29TH JULY, 2026

NOAH EPHRAEM TETTEH ADAMTEY ……………. PLAINTIFF

VRS

ATTORNEY-GENERAL ……………. DEFENDANT

1. GHANA CENTER FOR DEMOCRATIC DEVELOPMENT LBG

2. TRANSPARENCY INTERNATIONAL GHANA LBG

3. GHANA ANTI-CORRUPTION COALITION LBG

Page 2 of 98

4. DEMOCRACY HUB LBG

5. STAR-GHANA FOUNDATION LBG

6. NORSAAC

7. PEN PLUS BYTES LBG AMICI CURIAE

8. AFRICA CENTRE FOR ENERGY POLICY LBG

9. ODEKRO PMO FOUNDATION LBG

10. A ROCHA GHANA LBG

11. PARLIAMENTARY NETWORK AFRICA LBG

12. IMANI CENTRE FOR POLICY & EDUCATION

13. ONEGHANA MOVEMENT LBG

14. AFRICA EDUCATION WATCH LBG

Judgment

BAFFOE-BONNIE CJ:

PART ONE: THE SUIT

The Writ 1) By a writ filed on 8 th December 2025, the plaintiff, a legal practitioner and citizen of Ghana, invoked the original jurisdiction of this Court under Articles 2(1) and 130(1) of the 1992 Constitution. He seeks eight reliefs. In the form pleaded, they are:

(a) 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 Page 3 of 98

exclusively in the Attorney-General and cannot be exercised independently for, or in parallel with, the Attorney-General.

(b) A declaration that the Office of the Special Prosecutor Act, 2017 (Act 459), 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) and (4), 93(2) and 296 of the Constitution and is therefore null, void and of no effect.

(c) 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.

(d) 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 and

(e) 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.

(f) A declaration that any statutory delegation of prosecutorial authority made pursuant to Act 959 does not bind subsequent Attorneys -General and lapses upon the assumption of office by a new Attorney -General unless re-authorised by that Attorney-General. Page 4 of 98

(g) 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.

(h) Any further orders or directions that this Honourable Court considers just, equitable and necessary to preserve the integrity of the Constitution and the prosecutorial architecture established under Article 88.

2) Two matters of form require highlighting at the outset. First, in relief (b) the plaintiff cites the Act he impugns as “Act 459”. That is a typographical error for the Office of the Special Prosecutor Act, 2017 (Act 959), and we treat it as such. CHECK THA T THE ORIGINAL WRIT AS FILED HAS THIS TYPO.

3) The second matter is of substance: we return to it in Part Three. Under his third relief, the plaintiff cites section 3(3) of Act 959 as one of the two provisions which he says make the Office of the Special Prosecutor (which we will call “the OSP”) indepe ndent of the Attorney-General in initiating, conducting and terminating prosecutions, contrary to Article

88. Section 3(3) is the provision which requires the OSP to publish, twice yearly, in two daily newspapers of national circulation and on its website, a list of the corruption cases it has investigated and prosecuted. It must publish with that list the numbers of acquittals, convictions and pending cases, and the value of proceeds recovered. It is a transparency and reporting provision. On its face it has nothing to do with independence in initiating, conducting or terminating prosecutions. The provision which confers on the OSP the function of prosecution is subsection (1) of section 3, and in particular paragraphs (a), (b) and (c) of that subsection. The plaintiff’s argument, as developed in his statement Page 5 of 98

of case and in oral argument, was directed at the conferment of the function and not at the duty to publish. We deal with this matter further at paragraph 119 below.

The Parties 4) The plaintiff sues in his own name. The Attorney -General is the sole defendant, as the officer against whom civil proceedings against the State are instituted under Article 88(5) of the Constitution.

The OSP’s Application for Joinder 5) On 15th December 2025, the OSP applied to be joined as a defendant on the ground that the writ impugns its statutory foundation and that it was a necessary party. On 27 th January 2026, we dismissed the application. We held that the State, represented by the Attorney-General, was the only proper defendant under Article 88(5) of the Constitution, and that the OSP was not a necessary party.

The Defendant’s Position 6) The defendant, though the sole party against whom the writ is directed, does not oppose the plaintiff. He supports the plaintiff on his own separate grounds. On 8th April 2026, he obtained an extension of time and filed his statement of case, in which he asks this Court to declare that Parliament, through Act 959, acted ultra vires the Constitution in three respects. First, it compelled him to authorise the OSP to prosecute. Second, it varied his prosecutorial powers so as to divest him of control and oversight in respect of prosecutions mounted by the OSP. Third, it donated his prosecutorial power to the OSP, a juridical person, when the Constitution contemplates the authorisation only of natural persons.

Page 6 of 98

7) The consequence is that the writ, as filed, stood undefended. Both the plaintiff and the defendant sought the invalidation of provisions of an Act sponsored, drafted and laid before Parliament by a previous Attorney-General.

The Amici 8) On 5th May 2026, fourteen civil society organisations, jointly, applied for leave to file an amicus brief. They are the Ghana Center for Democratic Development, Transparency International Ghana, the Ghana Anti-Corruption Coalition, Democracy Hub, Star Ghana Foundation, NORSAAC, Pen Plus Bytes, the Africa Centre for Energy Policy, the Odekro PMO Foundation, A Rocha Ghana, Parliamentary Network Africa, IMANI Centre for Policy and Education, OneGhana Movement, and Africa Education Watch. On 19 th May 2026, we granted these CSOs leave to file the amicus.

9) The presence of the amici supplied the adversarial dimension which the alignment of the plaintiff and the defendant had removed, and we record our appreciation of the assistance we have received from their brief.

The Joint Memorandum of Issues 10) On 26th April 2026, the plaintiff and the defendant filed a Joint Memorandum of Issues. As they framed them, the issues were:

(a) Whether the prosecutorial powers of the Republic vest in the Attorney -General alone.

(b) Whether the Office of the Special Prosecutor Act compels the Attorney-General to authorise the OSP to prosecute an offence.

Page 7 of 98

(c) Whether Parliament may compel the Attorney -General to authorise a person to prosecute an offence.

(d) Whether the Office of the Special Prosecutor Act varies the Attorney -General’s prosecutorial powers.

(e) Whether Parliament may, by ordinary legislation, vary the Attorney -General’s prosecutorial powers.

(f) Whether prosecutorial power may be delegated to a juridical person.

(g) Any other issue which this Court may deem necessary.

11) We state the substance of those issues under a fuller set of questions set out at paragraph 33 below. We show at paragraph 34 how each of the issues in the Joint Memorandum is answered, so that no party is left in doubt that the whole of what was submitted for our decision has been decided.

PART TWO: THE ARGUMENTS OF THE PARTIES 12) We set out here, once and in full, the cases of the plaintiff, the defendant and the amici. Our purpose in gathering them in one place is that the analysis in Part Three is the reasoning of this Court, and not a recital of the arguments of the parties.

The Plaintiff’s Arguments 13) The plaintiff’s case may be grouped into four parts. They are: first, the character of the prosecutorial mandate; second, the mode by which another person may be authorised to Page 8 of 98

exercise it; third, the limits on the competence of Parliament; and fourth, the duration of any authorisation given.

14) On the character of the prosecutorial mandate, the plaintiff submits that Article 88(3) of the Constitution vests the prosecutorial mandate in the Attorney-General exclusively and personally. He points to the imperative “shall” and to the word “all” in the sentence “The Attorney-General shall be respo nsible for the initiation and conduct of all prosecutions of criminal offences”; and submits that the two words together establish an exclusive constitutional mandate operating on two levels. First, the Attorney -General is the sole officer in whom prosecutorial power is constituted. Second, as a matter of what he calls procedural constitutionalism, criminal prosecutions must commence in the manner prescribed by Article 88(3), that is, by or at the suit of the Attorney-General. He relies on the constitutional history from 1957 onward and on the deliberate introduction of the word “all” from 1969, and submits that the framers of the 1992 Constitution carried that language forward with a settled meaning. For that he cites J.H. Mensah v. Attorney-General [1996-97] SCGLR 320, and Martin Amidu v. President Kufuor and Attorney -General [2001- 2002] SCGLR

138. He submits that the office of Attorney -General is, in its constitutional design, personal to the officeholder, and that the authority which Article 88 confers attaches to the individual who holds the office at the material time.

15) On the mode by which the Attorney -General may authorise another person to prosecute, the plaintiff accepts that Article 88(4) permits the Attorney -General to authorise another person to prosecute at the suit of that person and in the name of the Republic. He submits, however, that any such ability derives solely from, and remains subordinate to, the discretionary authorisation of the Attorney-General. He submits that the discretion is a discretionary power within the meaning of Article 296, and that the words “in accordance with any law” in Article 88(4) must accordingly be read as Page 9 of 98

requiring a Constitutional Instrument laid before Parliament in terms of Article 296(c). He submits further that the authorisation must be case specific, so that the Attorney - General addresses his mind to the particular matter and the particular person, and that a standing or general authorisation is inconsistent with the personal character of the discretion. In the alternative, he submits that if “in accordance with any law” does accommodate an Act of Parliament, the Act must be one passed at the behest of an Attorney-General, and its effect must terminate when that Attorney-General leaves office.

16) On the competence of Parliament to enact Act 959, the plaintiff submits that Parliament could not, by ordinary legislation, create a prosecutorial authority independent of the Attorney-General and vest it with prosecutorial power. He submits that sections 3 and 4 of Act 959 do exactly that, and that they violate the constitutional design in three ways. They treat the Attorney -General’s constitutional mandate as a transferable commodity which Parliament may reassign. They convert a constitutionally permissible subordinate delegation into a parallel and ind ependent prosecutorial authority insulated from the Attorney-General. Further, they immunise the delegate, the Special Prosecutor, from the Attorney-General’s direction, supervision and revocation. To that end, sections 3 and 4 of Act 959 divest the Attorney-General of the essence of his constitutional mandate.

17) Put together, the plaintiff submits that Parliament has usurped the Attorney -General’s discretion and turned it into, in his words, “a compelled, irreversible and permanent statutory grant of authority”, with the consequence that “the office of the Special Prosecutor becomes a fully independent prosecutorial entity, exercising a portion of the Attorney-General’s constitutional mandate yet shielded from the Attorney -General’s control”. He cites Amegatcher v. Attorney-General [2012] 1 SCGLR 679 for the principle that where the Constitution commits a function to a particular officeholder, no other organ may interfere with, dilute or usurp it, and Stephen Kwaku Asare v. The Attorney -General, Page 10 of 98

Writ No. J1/6/2011, judgment delivered on 22 nd May 2012, for the proposition that Parliament cannot reassign or alter powers expressly vested by the Constitution without first amending it. He relies also on the American authorities of Panama Refining Co. v. Ryan 293 US 388 (1935) and A.L.A. Schechter Poultry Corp. v. United States 295 US 495 (1935). He contends that a change of this character could be effected only by amendment of the Constitution under Articles 289 and 290, and that Parliament acting under Article 93(2) had no competence to effect it.

18) On the lapse of an authorisation when the Attorney-General who gave it leaves office, the plaintiff submits that any authorisation given by a sitting Attorney -General under Article 88(4) lapses by constitutional implication upon the assumption of office by a new Attorney-General, unless and until the successor expressly renews or affirms i t. The premise is the same as that of his first submission, namely that the Article 88 authority attaches personally to the sitting Attorney-General and not to the office. He submits that in enacting Act 959, Parliament purported to bind all future Attorneys-General, and that it had no power so to do.

19) The plaintiff then prays for the reliefs set out at paragraph 1.

The Defendant’s Arguments 20) The defendant Attorney-General supports the outcome for which the plaintiff contends, but arrives at it by a different route. His case may be summed under four heads.

21) On whether Act 959 compels him to authorise the OSP to prosecute, he submits that the phrase in section 4(2) of Act 959, “the Office shall for the purposes of this Act be authorised by the Attorney-General”, shows that Parliament purports to compel him to Page 11 of 98

authorise the OSP to prosecute. He relies on section 42 of the Interpretation Act, 2009 (Act 792), by which “shall” in an enactment is to be construed as imperative and mandatory. He relies further on the explanatory memorandum which accompanied the Bill t hat became Act 959, and in particular on the passage which described the intention to confer independent prosecutorial power on the OSP. He submits that the true intention of Parliament, so gathered, was to make the delegation mandatory rather than permiss ive. He concedes, in reliance on Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379, and on the writing of V.C.R.A.C. Crabbe, that “shall” is not invariably imperative and may in some contexts be directory only, but he submits that the context here points the other way.

22) On whether Act 959 varies his constitutional powers under Article 88, he submits that section 4(2) compels him to abandon the constitutional duty imposed by Article 88(3) to be responsible for the prosecution of all criminal offences. He submits that by the terms of the Act he is now responsible only for the prosecution of those offences which the OSP is not prosecuting, and that Act 959 has thereby converted what the framers intended to be a delegation into a donation. He submits that a delegation leaves the delegate in control while a donation does not, and that the mark of the difference is the insulation of the OSP from his direction and supervision by section 4(1). He develops the theme. The essential tools by which a prosecution is controlled, he says, are the plea bargain and the entry of a nolle prosequi, and both belong to him alone. No other person he authorises may conclude a plea agreement without recourse to him, yet section 71 of Act 959 permits the OSP to do so, and section 80(2) also purports to hand OSP the power to enter nolle prosequi as well. He adds that the Special Prosecutor is appointed by the President under section 13, so that the President rather than he is the true donor of the power. And he observes that the OSP never took any step to obtain the traditional fiat or executive instrument from him before beginning to act. He relies on Appiagyei-Atua and Two Others v. Attorney- Page 12 of 98