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 290. (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 General, Suit No. J1/14/2022, judgment delivered on 31st May 2023, for the proposition that where Parliament has by ordinary legislation sought to vary a provision of the Constitution, this Court will declare the legislation unconstitutional. 23) On whether an authorisation may be given to a juridical person, he submits that Article 88(4) contemplates the authorisation of natural persons only. According to this argument, Act 959 did not make the Special Prosecutor, who is a human being, the recipient of the prosecutorial power. It made the OSP, an artificial pe rson, the recipient. He relies on Prohibitions Del Roy (1607) 77 ER 1342 for the proposition that a function requiring the exercise of legal judgment cannot be committed to one who does not possess the artificial reason of the law. From that he submits that prosecutorial functions must be exercised through natural persons and not through offices, departments or institutions. He submits that only human beings are enrolled as lawyers, and that the practice of law entails an inseparable mix of long learning and experience, the application of reason and the exercise of judgment. The power to initiate and conduct pros ecutions is therefore given, he says, to a human being and not to an office. He relies also on section 3 of the Legal Profession Act, 1930 (Act 32), by which only a natural person may be enrolled as a lawyer. 24) On the constitutional history of the office of Attorney -General, he traces the office of Attorney-General from the 1957 Constitution, through the 1969 and 1979 Constitutions, to the present, and submits that the deliberate introduction of the word “all”, which now finds expression in Article 88(3), “leaves no doubt tha t no prosecutorial power is left for another person to exercise”. He submits that the jurisprudence of this Court has consistently affirmed that exclusive vesting. 25) On the relief he asks of this Court, the Attorney-General asks that sections 3 and 4 of Act 959 be declared inconsistent with the Constitution and struck down. In the Page 13 of 98 alternative, and in the course of oral argument, he invited us to restore what he described as the traditional route of authorisation by Executive Instrument under the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). He asked for a consequential order directing him to issue such an instrument to the OSP within one week. The Amici’s Arguments 26) The amici oppose the writ and ask this Court to hold Act 959 consistent with the Constitution. Their case is developed under seven heads. 27) On the distinction between the responsibility clause and the machinery clause, the amici submit that Article 88(3) is a responsibility clause and Article 88(4) is a machinery clause, and that the two must be read together and not collapsed into one another. The framers, having imposed on the Attorney -General exclusive responsibility for the initiation and conduct of all criminal prosecutions, provided in the very next clause for the exercise of that function by any other person authorised by him in accordance with any law. They add that Article 88(4) speaks of a person authorised and not of a person to whom power is delegated, and that the difference is not merely verbal. One who is authorised acts in the name and on behalf of the person who authorised him, so that his act is in law the act of the authoriser, who remains the constitutional locus of the decision. The constitutional design is one of exclusive responsibility coupl ed with permissive devolution of function. They accept the Attorney -General’s tracing of the history of Article 88(3), but submit that it does not track the development of Article 88(4), so that his historical argument, however accurate as to the responsib ility clause, says nothing about the machinery clause. 28) On the internal contrast between clause (4) and clause (5) of Article 88, in criminal matters, the amici submit, the framers of the Constitution included express words Page 14 of 98 permitting prosecution at the suit of a person the Attorney -General authorises. In civil matters they included no such words. Within a single article the framers showed that they knew how to vest a function without qualification when they meant to, and they did not do so in clause (4). 29) On whether section 4(2) of Act 959 compels the Attorney-General to authorise the OSP to prosecute, and on how the language of section 78 and section 81(1) of the same Act shows that section 4(2) of Act 959 does not, the amici argue as follows. Section 4(2) of Act 959 does not compel the Attorney -General to authorise the OSP to prosecute. The provision opens with the words “Subject to clause (4) of article 88 of the Constitution”, and it is cast in the passive voice. They contrast two other provi sions of the same Act. Section 78 uses the active commanding voice: “The Minister shall, within ninety days upon the assumption of office of the Special Prosecutor, in consultation with the Board, by legislative instrument, make Regulations.” Section 81(1) uses the discretionary voice: “The Attorney-General may, on the coming into force of this Act, authorise the Office of the Special Prosecutor to handle any investigation or prosecution … being handled by…” the Economic and Organised Crime Office, the Pros ecutions Division of the Attorney - General’s Office, or public prosecutors appointed under section 56 of Act 30. In sum, the amici point to three drafting choices in one Act, by one drafter. From that contrast the amici conclude that section 4(2) of Act 959 was never meant to command. 30) On the legislative record of Act 959, the amici submit that the plaintiff and the defendant have failed to engage the whole of the legislative record. The passage of the explanatory memorandum on which the Attorney -General relies explains Clause (4) of the Bill in its original form, as laid by the then Attorney-General in July 2017. It does not explain what Parliament enacted. The Hansard for 1st and 2nd November 2017 records that Parliament was troubled that the original clause was inconsistent with Article 88(4), and that it re - Page 15 of 98 stated and re -worded the clause to bring it into conformity, producing the express subordination now found in section 4(2). They submit that the memorandum, which under Article 106(2)(b) explains the Bill at the moment of laying, is not amended when the Bill is amended, and that in respect of provisions altered on the floor it is the record of a discarded text. 31) On the mode by which authorisation may be given, the amici submit that the words “any law” in Article 88(4) means any law within Article 11(1) of the Constitution, and that no particular mode is prescribed. Where legislation prescribes a mode, that mode governs. Where it does not, reference is had to th e general body of laws. They point to a settled pattern of Ghanaian legislative practice since 1993, comprising at least nine distinct drafting models by which the authorisation of persons other than the Attorney - General to prosecute offences has been prov ided for. The pattern runs across the police, the Economic and Organised Crime Office, the Narcotics Control Commission, the Securities and Exchange Commission, the Bank of Ghana, the Customs Division of the Ghana Revenue Authority, the Food and Drugs Auth ority, the National Pensions Regulatory Authority, the Environmental Protection Authority, the revenue and tax statutes, and the Metropolitan, Municipal and District Assemblies. 32) On authorisation to juridical persons and on institutional continuity, the amici submit that Prohibitions Del Roy decided only that a judicial function could not be discharged by the King in his own person, because he was not learned in the artificial reason of the law. It did not decide that institutional bodies may not exercise executive functions. They point to section 46 of the Interpretation Act and to Article 295 of the Constitution, both of which give “person” a meaning which includes a body corporate. They submit that the fact that an officeholder has discretion in the exercise of an institutional power does n ot make the power personal to him. A Minister who has discretion to make regulations does Page 16 of 98 not by that discretion cause her regulations to lapse when she leaves office, and a judge does not cause his orders to cease to have effect on his retirement. They illustrate the point by reference to the appointment of Justices of this Court, who are appo inted by the President under Article 144(2) on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament. No one suggests that the President is thereby the source of the judicial power vested in the J udiciary by Article 125. Appointment fills an office; it does not supply the source of the function. 33) On the consequences of accepting the plaintiff's and the defendant’s readings of Article 88 and Act 959, the amici submit that the readings advanced by the plaintiff and by the defendant, if accepted, would produce a cascade of consequences destructive of the constitutional and administrative life of the Republic and which the framers cannot have intended. Th ey set the consequences out in detail, and we return to them at paragraph 98. They submit, finally, that any defect in Act 959, if one were found, could be cured by reading down or by severance, and that wholesale invalidation is a remedy of last resort available only where no less intrusive remedy can cure the defect. PART THREE: ISSUES AND ANALYSES The Questions for Decision 34) The critical questions on which this case turn stand in a sequence, and each of them depends upon the answers to those before it. Whether the OSP holds a valid authorisation cannot be determined until it is settled whether the prosecutorial function may be exercised by any person other than the Attorney-General, by whom it may be exercised, Page 17 of 98 and in what form his authorisation must be given. We therefore take the questions in the order of their logical priority, and not in the manner or order in which the parties framed them in the Memorandum of Issues. We ask, in turn: i) Issue 1: whether prosecutorial authority under the Constitution is exclusive to and personal to the Attorney-General; ii) Issue 2: whether Article 88(4) permits the exercise of the prosecutorial function by a body corporate; iii) Issue 3: whether Article 88(4) mandates a particular mode, instrument or form by which the Attorney-General must authorise another person to prosecute; iv) Issue 4: whether the Attorney-General has in fact authorised the OSP to prosecute, and whether that authorisation is in accordance with law; v) Issue 5: whether the Attorney -General’s discretion to authorise prosecution is subject to Article 296; vi) Issue 6: whether sections 3 and 4 of Act 959 compel the Attorney -General to authorise the OSP to prosecute, vary his powers, or otherwise exceed the legislative competence of Parliament; vii) Issue 7: whether the Attorney-General retains control over prosecutions conducted by the OSP; Page 18 of 98 viii) Issue 8: whether authorisation to prosecute, once given, lapses when the Attorney- General who gave it leaves office; and ix) Issue 9: the validity of prosecutions conducted by the OSP since its inception. 35) As indicated, these questions reframe the memorandum of issues. i) Issue (a) of the memorandum of issues, whether prosecutorial powers vest in the Attorney-General alone, is answered in the new Issue 1. ii) Issues (b) and (c) of the memorandum of issues, whether the Act compels the Attorney-General to authorise the OSP to prosecute and whether Parliament may compel him to do so, are answered in the new Issue 6. iii) Issues (d) and (e) of the memorandum of issues, whether the Act varies his prosecutorial powers and whether Parliament may vary them by ordinary legislation, are answered in the new Issue 6 and Issue 7. iv) Issue (f) of the memorandum of issues, whether prosecutorial power may be delegated to a juridical person, is answered in the new Issue 2. v) Issue (g) of the memorandum of issues leaves open any other issue which this Court may deem necessary. The further questions we find necessary to decide are the new Issues 3, 4, 5, 8 and 9. None of those questions was framed by the parties, and none can be avoided. The reliefs sought cannot be disposed of without deciding in what form an authorisation must be given, whether one has been given to the OSP, what standards govern the exercise of the discretion to give it, whether it survives a change of Attorney -General, and what becomes of the prosecutions the OSP has already initiated. The consequential orders which those answers require fall within relief (h) endorsed on the writ. Page 19 of 98 The Approach to Interpretation 36) In the jurisprudence of this Court the approach to the interpretation of enactments is purposive. It is a conscious and deliberate approach directed at giving effect to the object of the enactment. Words take their meaning from their context and from the c ompany they keep. We therefore proceed from the text, read in its context, to the object or purpose for which the provision was established. We do not ascertain the meaning of words and clauses in isolation. In this jurisdiction, words take their colour and their effect from their context and from the design and aim of the enactment in which they occur. 37) In respect of the Constitution we are guided by principles fashioned through decades of jurisprudence in this Court, both before and after the coming into force of the present Constitution. The foundation is section 10(4) of the Interpretation Act, 2009 (A ct 792), which requires that a provision of the Constitution or of any other law be construed or interpreted in a manner (a) that promotes the rule of law and the values of good governance; (b) that advances human rights and fundamental freedoms; (c) that permits the creative development of the provisions of the Constitution and the laws of Ghana; and (d) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana. 38) On that foundation, we have recognised the unique character of the Constitution as a living organism which must be nurtured progressively for the development of the country. We do not approach its interpretation and enforcement in a mechanical fashion. In Benneth v. The Republic [1974] 2 GLR 47, Apaloo JA, as he then was, admonished against a narrow and strict interpretation of constitutional provisions which may not reflect the Page 20 of 98 policy reasons behind them. What he there counselled was given statutory form thirty - five years later in section 10(4) of Act 792. 39) This Court has since held consistently that the Constitution is a dynamic document which encompasses our very essence, and that its meaning and application require an approach which is sensitive to context and open to development. The classic statement is that of Sowah JSC in Tuffour v. Attorney-General [1980] GLR 637 at 647: A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it th eir aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. 40) The approach has been restated and reaffirmed in a long line of decisions of this Court. In Kuenyehia v. Archer [1993-1994] GLR 525 this Court held: A constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily Page 21 of 98 according to the ordinary rules and presumptions of statutory interpretation. It appears that the overwhelming imperatives are the spirit and objectives of the Constitution itself, keeping an eye always on the aspirations of the future and not overlooking the receding footsteps of the past. It allows for a liberal and generous interpretation rather than a narrow legalistic one. 41) In Asare v. Attorney -General, Civil Appeal No. J1/15/2014, judgment delivered on 14 th October 2015, Gbadegbe JSC carried the theme further: It is important to remind ourselves that we are dealing with our national Constitution, not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons and imposes obligations as much as it confers privileges and powers. All these privileges and powers must be exercised and enforced not only in accordance with the letter, but also with the spir it, of the Constitution. Accordingly, in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent fram ework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards achieving the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other. 42) That last passage from Asare v. Attorney-General governs the central question in this suit. It requires that the provisions of the Constitution work together as parts of a functioning whole, that they fit together logically, and that each provision be capable of operating Page 22 of 98 without coming into conflict with any other. The plaintiff invites us to read Article 88(3) in a way which would deprive Article 88(4) of any operation or effect. Such a reading would set one clause of a single article against the clause which immediately follows it. That is a construction of Article 88 we will not accept. 43) We employ the same purposive and contextual approach, and not a literalist one, in the interpretation of other enactments. Section 10(4) of Act 792 requires us to do so. The remaining subsections of section 10, together with section 13, prescribe the aids to interpretation. They include (a) a report of a Commission, committee or other body appointed by the Government or authorised by Parliament which has been presented to the Government or laid before Parliament, together with any Government White Paper; (b) a relevant treaty, agreement, convention or other international instrument ratified by Parliament or referred to in the enactment, and the preparatory work relating to it; and (c) an agreement declared by the enactment to be a relevant document for its purposes. 44) Where the language of an enactment is considered ambiguous or obscure, the court is required to take cognisance of (a) the legislative antecedents of the enactment; (b) the explanatory memorandum of the Bill and the arrangement of sections which accompanied the Bill; (c) pre-parliamentary materials relating to the enactment; Page 23 of 98 (d) a textbook or other work of reference, a report or a memorandum published by authority in reference to the enactment, and the papers laid before Parliament in reference to the enactment; and (e) the parliamentary debates prior to the passing of the Bill in Parliament, where the legislative intent behind the ambiguous or obscure words is clearly disclosed in the parliamentary debate. 45) Section 13 of Act 792 further provides that the long title and the preamble form part of an Act and are intended to assist in explaining its intent and object. We shall have occasion to rely upon the long title of Act 959, which states that the OSP is to prosecute corruption and corruption-related offences on the authority of the Attorney-General. 46) Therefore, where this Court is called upon to decide whether an enactment of Parliament is consistent with the Constitution, we examine the meaning and purpose of the relevant provisions of the Constitution and the meaning and effect of the provisions of t he enactment said to violate them. We then adopt an interpretation which gives effect to every beneficial purpose the Constitution was designed to serve and which conforms with the purpose the statute was enacted to achieve. In that way the statute is harmonised with the objects of the Constitution wherever that is possible. Where the two cannot be reconciled, the statute must yield. 47) The presumption of constitutionality attaches to every enactment of Parliament, and the burden lies upon the party who challenges it to displace that presumption. In Amegatcher v. Attorney-General (No. 2) [2012] 2 SCGLR 933, Atuguba JSC put it thus, that “until the contrary is proved legislation is presumed to be constitutional, and that it is a sound principle of constitutional construction that, if possible, legislation should receive such a Page 24 of 98 construction as will make it operative and not inoperative.” We now apply that approach to the nine questions, taking them in the order set out above. Issue 1: whether prosecutorial authority under the Constitution is exclusive to and personal to the Attorney-General 48) Article 88 establishes the office of Attorney -General and prescribes the functions which its holder is to discharge. By clause (1) he is a Minister of State and the principal legal adviser to the Government. By clause (2) he discharges such other duties of a legal nature as the President may refer or assign to him, or as this Constitution or any other law may impose. Clauses (3) to (6) set out his functions in the prosecution of criminal offences, in civil proceedings on behalf of and against the State, and his right of audience in all courts. Clauses (3), (4) and (5) are central to this suit. We set the article out in full. (1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government. (2) The Attorney-General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President, or imposed on him by this Constitution or any other law. (3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. (4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney -General or any other person authorised by him in accordance with any law. (5) The Attorney -General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney -General as defendant. Page 25 of 98 (6) The Attorney-General shall have audience in all courts in Ghana. 49) The words upon which this suit turns are few. In clause (3), that the Attorney -General “shall be responsible for the initiation and conduct of all prosecutions of criminal offences”. In clause (4), that offences prosecuted in the name of the Republic shall be at his suit “or any other person authorised by him in accordance with any law”. What those two provisions do, and how they relate to one another, is the question we must decide. 50) The plaintiff reads clause (3) as the provision which vests the prosecutorial function, and treats clause (4) as no more than a direction identifying at whose suit a prosecution may be brought. On that reading clause (3) would have already conferred the wh ole of the prosecutorial function on the Attorney-General alone, and the words of clause (4) which permit prosecution at the suit of a person he authorises would have no operation or effect. We do not accept that reading. The two clauses do different work, and we now identify what each of them does. 51) The two clauses are differently worded because they do different things. Clause (3) does not provide that the Attorney -General shall initiate and conduct all prosecutions. It provides that he shall be responsible for their initiation and conduct. To be res ponsible for a thing is to answer for it, and a person may answer for what is done by others as readily as for what he does himself. Clause (3) is therefore the responsibility clause of Article 88. It fixes upon the Attorney -General an exclusive constituti onal accountability for every prosecution brought in the name of the Republic, and he bears that accountability whether he conducts the prosecution himself or another conducts it on his authority. Clause (4) supplies the machinery by which the prosecutoria l function is exercised. It provides that prosecutions in the name of the Republic proceed at the suit of the Attorney-General or of any other person authorised by him in accordance with any Page 26 of 98 law. Read so, each clause has work of its own and neither conflicts with the other. That is what Asare v. Attorney-General requires of us, that the parts fit together logically and that each provision be capable of operating without coming into conflict with any other. The responsibility does not move. The function may be exercised by any other person the Attorney-General authorises in accordance with any law. 52) The structure of Article 88 puts the matter beyond doubt, and here we accept the submission of the amici. In clause (4), which deals with criminal prosecutions, the framers included express words permitting proceedings at the suit of a person authorised by the Attorney-General. In clause (5), which deals with civil cases, they included no such words. The two clauses stand side by side in a single article. Where words appear in the one and are absent from the other, both the inclusion and the omission are deliberate. The plaintiff’s reading requires us to treat the words in clause (4) as though the framers had never written them. 53) Clause (5) points the same way, and more strongly. That clause contains no words permitting any person other than the Attorney -General to sue on behalf of the State, yet constitutional commissions and other statutory bodies have since 1993 sued and been sued in their own names. It could not be otherwise, for on a stricter construction no such body could come before a court in its own name at all. Amegatcher v. Attorney -General shows it of the independent commissions established under the Constitution, and Afenyo- Markin v. Speaker of Parliament and Attorney -General, 29th November 2024, shows it of the other branches of government in matters of their own internal governance. If clause (5) bears that construction without any permissive words, clause (4), which contains them, must bear the construction we have given it. Page 27 of 98 54) The plaintiff urges that “shall” in clause (3), read with “all”, makes the mandate exclusive and personal. We agree that it is exclusive. We do not agree that it is personal. Article 88 creates an office, and the holder of an office discharges its function s through those who serve in it. On the plaintiff’s reading the Attorney -General would have to sign every charge sheet laid in the Republic and appear at every criminal trial. No Attorney-General has ever done so, and none could. 55) The Attorney-General’s argument from constitutional history does not assist him. He is right that the word “all” entered the responsibility provision in 1969 and has remained there since. But the provision permitting prosecution at the suit of an authorise d person has stood alongside it throughout the same period. The history he relies on is the history of both provisions, not of one. It shows successive framers retaining the two together, which is the opposite of what he must establish. 56) We accordingly hold that responsibility for the initiation and conduct of all prosecutions of criminal offences lies exclusively with the Attorney -General under Article 88(3), and that the function of initiating and conducting a prosecution may under Artic le 88(4) be exercised by any other person he authorises in accordance with any law. Issue 2: whether Article 88(4) permits the exercise of the prosecutorial function by a body corporate 57) The defendant submits that only a natural person may be authorised under Article 88(4). He puts it in two ways. First, on the authority of Prohibitions Del Roy (1607) 77 ER 1342, that a function calling for legal learning and judgment cannot be committed to an artificial person. Second, on section 3 of the Legal Profession Act, 1930 (Act 32), that only a natural Page 28 of 98 person may be enrolled as a lawyer, and therefore that only a natural person can conduct a prosecution. 58) Prohibitions Del Roy arose in the reign of King James. The Archbishop of Canterbury asked the King what matters the ecclesiastical judges might decide, and in particular what was to happen where the law gave no express authority. The King answered that he might decide such ma tters in his own royal person, that the judges were no more than his delegates, and that he could take from them any case he chose to determine himself. 59) Lord Coke, Chief Justice of the Court of Common Pleas, held otherwise. The King in his own person could not adjudge any case, criminal or civil. Cases were to be determined in a court of justice by judges sworn to execute justice according to the law and c ustom of England. The King had his own court in the Upper House of Parliament, to which appeals lay from the Common Pleas through the King’s Bench. Though he might sit in the King’s Bench, he could not take a case out of any of his courts and give judgment upon it himself. Were he to give judgment, the party aggrieved would have no remedy against him. And the King was not learned in the laws of England, which are not decided by natural reason but by the artificial reason and judgment of law, requiring long study and experience. 60) The decision in Prohibitions Del Roy offended the King, as it was bound to. It has endured because of what it settled: that adjudication belongs to the courts and not to the executive, that a judge must be qualified to judge, and that no man is beyond the reach of a remedy. Those are the fou ndations of judicial independence and of the separation of powers. Prohibitions Del Roy says nothing about who may prosecute. The court was never asked whether a prosecution may be brought in the name of an institution, and it did not answer that question. The defendant asks us to take a decision about the King’s claim to sit as a Page 29 of 98 judge and make it govern the capacity of a statutory office to bring a criminal charge. A holding about who may judge, does not decide who may prosecute; a decision on the first, says nothing about the second. 61) The argument from the Legal Profession Act fares no better. Section 3 of Act 32 provides who may be enrolled as a lawyer. It does not provide who may be authorised under Article 88(4), and no question of enrolment arises when an authorisation is given. The premise is sound but the conclusion does not follow from it. Only a human being can be enrolled, and only a human being can stand in court and address a judge. It does not follow that the authority under which that human being appears must have been given to him personally rather than to the office in which he serves. 62) The question is in any event answered by the ordinary meaning of the word the framers used. Article 295 of the Constitution defines “person” to include a body corporate. Section 46 of the Interpretation Act, 2009 (Act 792) is to the same effect. Nothing in Article 88(4) displaces those definitions, and the defendant points to nothing in the article which would. His objection is not drawn from the text of the Constitution at all. It rests on a 17th Century English decision and on an enactment about enrolment at the Bar. 63) At any rate, the defendant’s argument does not conform to practice. The Attorney - General’s own Department is not a natural person. Neither is the Ghana Police Service, nor the Economic and Organised Crime Office. Each prosecutes at the suit of the Republic through lawyers and officers holding rank within it. In the case of the OSP those are the prosecutorial ranks created by L.I. 2373, which we describe at paragraph 74 below. What is committed to the institution is the function. What is exercised within it is the judgment of the individual conducting the case. On the defendant’s reading, none of those prosecutions could have been brought, and the Republic would have been with out a Page 30 of 98 prosecuting service since 1993. It may be answered that the officers who prosecute for those institutions are themselves authorised, and are named individually in the instrument authorising them. That is true of some and not of others, and it does not assist the defendant. Section 56 of Act 30, which we set out at paragraph 70 below, and whose provision embodies the practice the defendant invokes, permits the Attorney-General to appoint public officers to be public prosecutors generally, or for any specified class of criminal cause or matter, or for any specified area, and permits him separately to appoint a named legal practitioner for a particular cause. Parliament thus provided for appointment by class as well as by name. Were authorisation confined to a person identified by name, the first of those limbs could never be used. The ranks created by the third schedule of L.I. 2373 are that same model applied to the OSP. 64) We hold that “person” in Article 88(4) bears its ordinary meaning and includes a body corporate. The Office is a body corporate under section 1 of Act 959 and is capable of receiving an authorisation. Whether it has received one is a different question, which we answer at Issue 4. Issue 3: whether Article 88(4) mandates a particular mode, instrument or form by which the Attorney-General must authorise another person to prosecute 65) The plaintiff submits, in reliance on Article 296(c), that authorisation must be effected by a Constitutional Instrument. The defendant submits that the mode is an Executive Instrument, and invites us to direct that one be issued within a week. 66) Article 88(4) requires that the person be “authorised by him in accordance with any law”. The phrase is general by design. It names no form and no instrument. It requires that whatever vehicle is chosen be law, within the meaning of Article 11(1). Article 11(1) recognises as sources of law the Constitution itself, enactments made by or under the Page 31 of 98 authority of Parliament, orders, rules and regulations made by a person or authority under a power conferred by the Constitution or any other law, the existing law, and the common law. Any of these will satisfy Article 88(4). Where a specific law prescribe s a specific mode, that mode governs. Where none does, reference is had to the general body of laws. 67) That reading is confirmed by the legislative record. During the passage of the Bill, Dr. Dominic Ayine, a Member of Parliament (now the Attorney -General) proposed that the instrument by which the authorisation was to be given be prescribed. Parliament did not adopt the proposal. Parliament therefore had the question of mode before it, and declined to fix one. It is not for this Court to supply what Parliament deliberately withheld. 68) The plaintiff’s reliance on Article 296(c) does not overcome the generality of “any law”. Article 296(c) requires that regulations be published, by constitutional or statutory instrument, to govern the exercise of a discretionary power vested in a person o r authority which is not a judge or other judicial officer. Whether the discretion under Article 88(4) is one within the reach of Article 296 is a question we answer at Issue 5. But even if it were, clause (c) would prescribe the form of the regulations governing the exercise of the discretion. It would not prescribe the form in which the discretion is exercised, and it would not convert “in accordance with any law” into “by a Constitutional Instrument”. 69) The defendant’s invitation to direct the issue of an Executive Instrument fails on grounds of its own, and we set them out because the invitation was pressed with force. Page 32 of 98 70) First, we cannot both hold that no mode is prescribed and then prescribe one. Second, a direction to authorise the OSP presupposes that no authorisation exists, and, as we hold at Issue 4, that is not the position. Third, a direction requiring the Attorney -General to authorise the OSP within a stated time would do by judicial order the very thing we hold at Issue 6 that Parliament may not do by statute. If the legislature may not command the exercise of that discretion, neither may we. Fourth, and decisivel y as a matter of constitutional machinery, Article 297(d) provides that where a power is conferred to make a constitutional or statutory instrument, regulation, rule, resolution or direction, the power includes the power, exercisable in the same manner, to amend or revoke it. What has been created by legislative instrument, laid before Parliament and subject to annulment under Article 11(7), may be amended or replaced only by a like legislative instrument. To substitute an executive instrument would not be to proceed “in the same manner”. The principle is established in the reasoning of this Court in Stephen Nii Bortey Okane and Others v. Electoral Commission of Ghana and Attorney-General, Writ No. J1/2/2011, judgment delivered on 23rd June 2011, which adopts the analysis of Kpegah JSC in Philip Kwaku Apaloo v. Electoral Commission [2001-2002] SCGLR 1 at 34 to 35. 71) It follows that the Attorney-General remains free to issue an executive instrument, a fiat or a directive to supplement or particularise the authorisation now in force, and free to amend or revoke that authorisation by a further legislative instrument. What he may not do is displace a legislative instrument by an executive instrument, and what we may not do is direct him to attempt it. 72) We add a word about section 56 of Act 30, because the consequences of this judgment for other public prosecutors must be plain. Section 56 provides that the Attorney -General may appoint by executive instrument, generally or for any specified class of crimi nal cause or matter or for any specified area, public officers to be public prosecutors, and may Page 33 of 98 appoint any legal practitioner in writing to be a public prosecutor in a particular cause or matter. That is the general and long -established statutory machinery through which the Attorney-General has authorised, and continues to authorise, police prosecutors, revenue and customs prosecutors and a great range of other prosecutors of the State. Nothing in this judgment disturbs it. Where Parliament has provided an authorising framework of its own, as it has for the OSP, that framework operates in its own field. Where it has not, section 56 continues to supply the ordinary machinery, and it does so consistently with Article 88(4). The one does not exclude the other. We hold, for the avoidance of any doubt, that this judgment does not impugn the authority of an y prosecutor authorised under section 56 or under any other statutory provision. 73) Article 88(4) prescribes no particular mode of authorisation. Any law within Article 11(1) will serve that purpose. Issue 4: whether the Attorney -General has in fact authorised the OSP to prosecute, and whether that authorisation is in accordance with law 74) The OSP has been authorised to prosecute. The authorisation does not rest on any single instrument. It is cumulative and it is complete. It rests on Act 959, on the two legislative instruments the former Attorney -General made under that Act, and on the con tinuing engagement which the Act requires of him. 75) Act 959, the enabling Act of Parliament, is the law in accordance with which the authorisation has been given. We are careful about how we put this, because Parliament cannot itself authorise under Article 88(4). What Parliament may do, and what it did, is to enact the law in accordance with which the Attorney -General authorises. Act 959 identifies the Attorney-General as the source of the authorisation. It defines its scope by Page 34 of 98 reference to corruption and corruption-related offences. Its long title states that the OSP is to prosecute those offences “on the authority of the Attorney -General”. Section 4(2) subordinates the authorisation expressly to Article 88(4). Act 959 is a law within Article 11(1)(b). It received the assent of the President on 2nd January 2018 and was published in the Gazette on 3rd January 2018. 76) The first instrument, the Office of the Special Prosecutor Regulations, 2018 (L.I. 2373), that the Attorney-General made in exercise of the power conferred by section 78 of Act 959, was published in the Gazette on 26 th November 2018 and entered into force on 22 nd December 2018. The Third Schedule establishes a corps of prosecutorial ranks running from Assistant Prosecutor through Prosecutor, Senior Prosecutor and Principal Prosecutor to Chief of Special Prosecutors, with equivalences to police ranks from Assistant Superintendent to Deputy Commissioner. Regulation 15 provides that the OSP shall have the ranks specified in the Third Schedule. The holder of such an office exercises the function when the Special Prosecutor assigns responsibility to him under section 14(3) of the Act, which permits that assignment but leaves the Special Prosecutor answerable for how the responsibility assigned is exercised. 77) The second instrument, the Office of the Special Prosecutor (Operations) Regulations, 2018 (L.I. 2374), was made by the Attorney -General on 23 rd November 2018, in exercise of the power conferred by section 78 of Act 959. It was published and came into force on the same dates as L.I. 2373. Regulation 11, headed “Decision to prosecute”, provides that the Special Prosecutor or an authorised officer s hall, upon considering the facts and evidence gathered from an investigation, take a decision whether or not to prosecute. By that instrument the Attorney -General committed the prosecutorial judgment to the holders of the offices she had created by L.I. 2373. Page 35 of 98 78) The continuing statutory engagement of the Attorney-General with the OSP, solidifies our position that prosecutorial authority was donated by the former to the latter. He nominates the Special Prosecutor for appointment by the President, subject to the approval of a majority of all the members of Parliament, under section 13(3). He nominates the Deputy Special Prosecutor under section 16(2). He receives from the OSP, within thirty days of the conclusion of every prosecution and of every confiscation or realisation of property, a written report on the outcome, under section 3(2). Ten percent of every amount realised under a confiscation or pecuniary penalty order is paid to his Office under section 66(2). The OSP does not stand outside the constitutional sphere of the Attorney-General. It stands within it, in a relationship the Act itself prescribes. 79) Taken together, Act 959, the two instruments and that continuing engagement constitute an authorisation given by the Attorney -General, in accordance with laws within the meaning of Article 11(1), to the OSP and to the officers holding the prosecutorial ran ks created by L.I. 2373, to initiate and conduct prosecutions of corruption and corruption - related offences at the suit of the Republic. 80) We now deal with a subsidiary question about the vires of the two instruments. Section 78 of Act 959 obliges the Attorney -General to make Regulations and lists in paragraphs (a) to (j) ten specific subjects. Paragraph (k) is a residual power to provide “generally for the effective implementation of this Act”. Neither the creation of prosecutorial ranks nor the decision to prosecute appears among the ten specific subjects. It may therefore be said that regulation 15 of L.I. 2373 and regulation 11 of L.I. 2374 lie outside the enabling power. We do not accept the argument. 81) Both provisions fall within paragraph (k) of section 78 of Act 959. In that sense, the object of the OSP Act, stated in section 2, includes the prosecution of specific cases of alleged or Page 36 of 98 suspected corruption. Section 3(1) is expressed throughout in the language of investigation and prosecution. Regulations which establish the ranks by which an Office prosecutes, and which provide for the taking of the decision to prosecute, are regulations providing for the effective implementation of such an Act. Nor can paragraph (k) be confined by construction to matters of the same character as those in paragraphs (a) to (j), for those paragraphs are not of one character. They range from the tracing of t ainted property, through the procedure for the submission of complaints, to reporting to the public on convictions secured. There is no genus by which the residual power may be limited, and since section 78 is the only power of subordinate legislation in t he Act, paragraph (k) must carry whatever else the working of the Act requires. 82) The breadth of paragraph (k) does not revive the contention that Parliament compelled the Attorney-General to authorise the OSP to prosecute. Section 78 imposes a duty to make Regulations. It imposes no duty as to what those Regulations must contain in the matter of authorisation. Paragraphs (a) to (j) fix the subjects on which she must make provision. Paragraph (k) leaves to her own judgment what the effective implementation of the Act requires. She could have regulated the ten specified subjects and gone no further and she would have discharged the section 78 duty in full. That she went further, and created the prosecutorial ranks and provided for the decision to prosecute, was her own choice. That choice is the exercise of the discretion which Article 88( 4) requires of her. Section 78 mandates the Attorney -General to legislate. It does not compel any Attorney-General to authorise the OSP to prosecute. 83) In any event, the question of vires does not arise. Neither instrument confers prosecutorial power on the OSP. The power to authorise is conferred on the Attorney - General by Article 88(4) and requires no enabling statute. The Constitution supplied the authority. Section 78 supplied the vehicle. Even if either Regulations were treated as Page 37 of 98 exceeding section 78, the instrument would remain her own, made in writing, published in the Gazette and laid before Parliament, and it would still evidence her authorisation under Article 88(4). Issue 5: whether the Attorney -General’s discretion to authorise prosecution is subject to Article 296 84) Article 296 applies where a discretionary power is vested in a person or authority. Clauses (a) and (b) require that the discretion be exercised fairly and candidly and not arbitrarily, capriciously or in bad faith or by resort to bias. Clause (c) requires that regulations be published, by constitutional or statutory instrument, to govern the exercise of the power where it is vested in a person or authority which is not a judge or other judicial officer. 85) Clause (c) does not apply to the discretion to authorise another person under Article 88(4). This Court so held, in relation to the cognate discretion to enter a nolle prosequi, in Gregory Afoko v. Attorney-General, Writ No. J1/8/2019, judgment delivered on 19 th June 2019. The Court held that the discretion is executive in character rather than quasi-judicial, and that Article 296(c) is restricted to discretion that is quasi -judicial in nature. That reasoning applies with equal force to the discretion to authoris e another person to prosecute. The decision to authorise is executive. It entrusts prosecutorial work. It is not the determination of a case between parties. It falls outside Article 296(c). 86) Clauses (a) and (b) are another matter. This Court held in Gregory Afoko v. Attorney - General, following Date -Bah JSC in Ransford France (No 3) v. Electoral Commission and Attorney-General [2012] 1 SCGLR 705 at 723, that although clause (c) does not apply, the person affected retains the right to subject the exercise of the discretion to the standards Page 38 of 98 of fairness, candour, impartiality and freedom from arbitrariness and caprice imposed by clauses (a) and (b). Those clauses, read with Article 23, assure fairness and impartiality in administrative processes. A decision of the Attorney -General to grant, to withhold, to vary or to revoke the authorisation of the OSP is the exercise of a discretionary power vested by the Constitution. It must satisfy those standards and it is amenable to review on that footing. 87) We add, for completeness, that a claim founded on Article 23 standing alone lies to the High Court under Article 33 and not to this Court, as Gregory Afoko v. Attorney -General also confirms. Issue 6: whether sections 3 and 4 of Act 959 compel the Attorney-General to authorise the OSP to prosecute, vary his powers, or otherwise exceed the legislative competence of Parliament 88) The plaintiff and the defendant read section 4(2) as an act of compulsion by Parliament directed at the Attorney-General. We are of a different view. 89) Section 4(2) provides: “Subject to clause (4) of article 88 of the Constitution, 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.” Four features of the drafting are decisive. 90) First, the subsection opens with an express subordination to Article 88(4). A Parliament intending to compel the Attorney -General to authorise the OSP would not begin the compelling provision by subordinating it to the Attorney -General’s own constitutional discretion. Page 39 of 98 91) Second, the subsection is in the passive voice. It does not say “the Attorney-General shall authorise”. It says “the Office shall be authorised”. The active commanding voice is present elsewhere in the Act, and Parliament used it where it meant it, in section 78. The discretionary voice is also present, in section 81(1), where Parliament wrote that the Attorney-General “may” authorise the OSP to handle matters then being handled by the Economic and Organised Crime Office, by the Prosecutions Division of the Attorney- General’s Office, or by public prosecutors appointed under section 56 of Act 30. Three drafting choices, one Act, one drafter. Parliament compelled where it meant to compel, permitted where it meant to permit, and in section 4(2) did neither. Section 4(2) identifies the source and the scope of the authorisation. It does not command it. 92) Third, section 42 of the Interpretation Act presumes that “shall” is imperative, but the presumption yields to context. The defendant himself concedes the point by his citation of Liverpool Borough Bank v. Turner. Section 4(2) speaks of a state of affairs which the Act contemplates and for which it provides the framework. It does not direct the Attorney - General to do anything. 93) Fourth, the defendant’s reliance on the explanatory memorandum addresses a text which Parliament rejected. The memorandum described Clause (4) of the Bill as laid in July 2017. The Hansard for 1 st and 2 nd November 2017 records the concern of Parliament that the clause was inconsistent with Article 88(4) and records its re -drafting to produce the express subordination now found in section 4(2). A memorandum tendered under Article 106(2)(b) explains the Bill at the moment of its laying. It is not amended when the Bill is amended on the floor. In respect of provisions so altered its evidentiary value falls away and it becomes the record of a discarded text. We are invited to construe an ena cted provision by reference to language describing a rejected clause. We decline the invitation. Page 40 of 98 94) We turn to the contention that the Act varies the Attorney -General’s prosecutorial powers, which is issue (d) of the joint memorandum. It does not. Section 3 is a functions provision. It states what the OSP is to do, within the framework of authorisation established by section 4. It does not confer prosecutorial power. It presupposes it. As for section 14(2), the plaintiff and the defendant have read it out of its setting. It provides that “despite subsection (1)” the Special Prosecutor shall have full auth ority and control over the investigation, initiation and conduct of proceedings under section 3(1). Subsection (1) provides that the Special Prosecutor is accountable to the Board in the performance of his functions under the Act. Section 14(2) is therefor e addressed to the Board and not to the Attorney-General. What it secures is that the Board, which governs the OSP and to which the Special Prosecutor is otherwise accountable, shall not direct him in the conduct of a particular case. Section 6(2), which forbids the Board to interfere in the day to day functions of the OSP, is to the same effect. Not a word of section 14(2) touches the Attorney-General, and the subsection cannot be made to carry a meaning which its own opening words exclude. 95) Section 4 situates the OSP in relation to the Attorney-General rather than apart from him. Subsection (1) opens with the words “Except as otherwise provided in the Constitution”. Subsection (2) opens with the words “Subject to clause (4) of article 88 of t he Constitution”. Each subsection carries a constitutional saving in its own opening words. Where the plaintiff and the defendant read section 4 as expelling the Attorney -General, its text keeps him in. 96) Nor is the Attorney-General required to abandon responsibility for the offences the OSP prosecutes. He retains the responsibility imposed by Article 88(3) over every prosecution in the Republic, including every prosecution brought by the OSP. He retains th e power of termination which we describe under Issue 7. To authorise is not to abdicate. Since