The first person to have been appointed Special Prosecutor upon the passage of Act 2017 (Act 959), Martin Amidu, has waded into the debate on the constitutionality or otherwise of the institution.
In an opinion piece dated April 16, Mr Amidu said he pointed out the shortcomings in the law that established the Office of the Special Prosecutor (OSP).
“Indeed, when former President Akufo-Addo invited me on 9 January 2018 to convince me to be the first Special Prosecutor to the OSP, I discussed with him the constitutional shortcomings of Act 959 including the fact that I was 66 years at the time and a likely objection to my nomination for appointment,” he wrote.
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One Noah Ephraem Tetteh Adamtey has succeeded in raising the question of the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) for interpretation and declaratory reliefs before the Supreme Court in an action he commenced against the Attorney-General on 8 December 2025.
An earlier attempt by Mr. Ken Agyei Kuranchie in 2023 challenging the constitutionality of Act 959 was discontinued in July 2024 by the Supreme Court for lack of prosecution and without liberty to bring a further action by him against the Attorney-General.
The Defendant in the Adamtey action, the Attorney-General, failed to timeously file a defence to the action as required by the Rules of the Supreme Court despite the fact that the Deputy Attorney-General was the source of leakage of the fact that the Plaintiff had commenced the action against the constitutionality of Act 959.
Exactly four months after the commencement of the action by the Plaintiff against the Republic of Ghana with the Attorney-General as the Defendant, the Defendant filed an application on 8 April 2026 in the Supreme Court praying for leave for extension of time to file the Statement of the Defendant’s Case and fixed for hearing on 16 April 2025.
The Statement of the Defendant’s Case as required by the Rules of the Supreme Court was exhibited to the application for leave for extension of time as “Exhibit AG1” and contains the Attorney-General’s case which substantially agrees with the Plaintiff’s case. (The Court just granted the extension of time).
Between 8 December 2025 when the Plaintiff filed his action and 8 April 2026 when the Defendant, the Attorney-General, filed his application for leave for extension of time to file the Statement of Case of the Defendant, the Office of the Special Prosecutor (OSP) sought by an application filed in the Supreme Court on 15 December 2025 and disposed off on 27 January 2026, to join the action as a Second Defendant.
The Supreme Court refused the joinder in a unanimous ruling stating that: “…We are of the view that the Office of the Special Prosecutor is not a necessary party to the action and that this suit may be properly adjudicated upon without their present (sic) as parties. This application for joinder is therefore refused.”
Noah Ephraem Tetteh Adamtey’s action against the Attorney-General was known and available to the public and the Anti-Corruption Civil Society Organizations since the case was filed in the Supreme Court on 8 December 2025.
The Rules of the Supreme Court allows for Interested Parties who take the view that a constitutional action raises issues which impacts them to apply to join that action. One cannot find any evidence that since the Plaintiff filed his action on 8 December 2025 any person or Civil Society Organization has applied to join the action as an Interested Party to make submissions contesting the action filed by the Plaintiff.
AN EXAMINATION OF THE REACTION TO DEFENDANT’S CASE
Nonetheless, immediately the Defendant, Attorney-General’s application for leave for extension of time became public, the Executive Director of the Civil Society Organization called CDD-Ghana took to social media to attack the ruling of the Supreme Court delivered on 27 January 2026 for refusing to adhere to adversarial contest in not allowing the OSP to join the action as Second Defendant.
The Anti-Corruption Civil Society Organizations which are organized under the umbrella of the CDD-Ghana have a stake in the existence of the OSP as it impacts their ability to source donations from donors in their anti-corruption campaigns.
Mr. H. Kwasi Prempeh, the Executive Director of the Centre for Democratic Development (CDD-Ghana) who played a central role with President Akufo-Addo and his Attorney General, Ms. Gloria Akuffo, in the drafting and submission of the Office of the Special Prosecutor Bill, 2017 to Parliament for enactment and assent into law as Act 959 now blames the Supreme Court for complying with the mandatory terms of Article 88 (5) of the Constitution in refusing the joinder application by the OSP.
Article 88 (5) of the 1992 Constitution states that “all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”
The unanimous decision of the Supreme Court dated 27 January 2026 refusing the OSP’s application for joinder is consistent with Article 88 (5) of the Constitution.
In any case, the post facto condemnation of the ruling of the Supreme Court is premised upon the false assumption that despite the wording of Article 88 (5) of the Constitution the Supreme Court’s ruling endorsed any conduct of Attorney-General that colludes with the substance of the Plaintiff’s action in the Statement of the Defendant’s Case.
Nothing under adversarial justice prevents the Defendant from admitting the case of the Plaintiff or part thereof as the Attorney-General’s draft Statement of Case proposes, however unethical it may seem.
Mr. H. Kwasi Prempeh is not qualified to hold himself out as a person qualified to practice law in Ghana let alone to qualify for appointment to any Court in Ghana and should not behave as though he understands the constitutional law of Ghana and the rules of practice of the Supreme Court of Ghana better than the Chief Justice and the four other justices of the Supreme Court who refused the joinder application of the OSP.
The fact that the Akufo-Addo government with whom he was associated appointed him to the Law Reform Commission does not qualify him to speak as though he is properly qualified as a legal practitioner in Ghana.
The proper thing for any person or body of persons who disagree with the position taken by the Attorney-General on the action filed by the Plaintiff on 8 December 2025 challenging the constitutionality of Act 959 to do is to apply to the Supreme Court as an Interested Party to join the action and submit arguments why the portions of Act 959 being challenged are constitutional.
The question of the constitutionality of the Office of the Special Prosecutor Bill, 2017 had been a subject of debate when the Akufo-Addo Government with the support of CDD-Ghana and other civil society organizations sought to actualize the electoral promise of the New Patriotic Party (NPP) into an institutional framework using the regime of law as an instrument to fight corruption.
On 6 September 2017 I submitted a twenty-three-page memorandum to Parliament in which I examined and analysed the Office of the Special Prosecutor Bill, 2017 that had been submitted and laid in Parliament by the Government acting by the Attorney-General for enactment into law.
The issues being raised in the action pending in the Supreme Court and the position taken by the current Attorney-General were raised and suggestions made on how to accommodate the provisions of Article 88(3) and (4) with the powers proposed to be entrusted to the Special Prosecutor.
Indeed, when former President Akufo-Addo invited me on 9 January 2018 to convince me to be the first Special Prosecutor to the OSP, I discussed with him the constitutional shortcomings of Act 959 including the fact that I was 66 years at the time and a likely objection to my nomination for appointment.
I agreed with the then President that the constitutionality of Act 959 was not our province to decide upon and that the courts were available to deal with any constitutional objections to Act 959.
Forner President Akufo-Addo and I were not surprised when an action was brought to the Supreme Court to challenge my qualification to be the first Special Prosecutor in which I was specifically named as the Second Defendant.
The Attorney-General applied to the Supreme Court to strike my name from the suit as a Defendant long after I had filed my Statement of Case, and Memorandum of Issues as the Second Defendant.
Mr. H. Kwasi Prempeh saw nothing wrong with my exclusion by the Supreme Court from arguing the case after the pleadings had crossed the Rubicon. I had expected a challenge to the Constitutionality of Act 959 when I was the Special Prosecutor.
I was happy none was made during my tenure. I was not surprised when Ken Agyei Kuranchie filed his challenge against the constitutionality of Act 959 and when he was thrown out of court by his delinquency.
I never read Noah Ephraem Tetteh Adamtey’s action against the Attorney-General until Mr. H Kwasi Prempeh’s criticism on 9 April 2026 against the unanimous decision of the Supreme Court after the Attorney-General filed his application for leave for extension of time to file the Statement of Case of the Defendant on 8 April 2026.
Any constitutional case is as good as the reliefs and the Statement of the Plaintiff’s Case constituting the action in the Supreme Court. This is why those like Mr. H. Kwasi Prempeh in his capacity as the Executive Director of the CDD-Ghana and his other anti-corruption civil society organizations who make a living by fighting corruption in return for donations from their foreign donors should concentrate their efforts in applying to the Supreme Court for leave to join as Interested Parties instead of seeking to use the media to criticize valid decisions of the Supreme Court in refusing to join the OSP in the action.
DEFECTS OF THE PLAINTIFF’S WRIT AND CAUSE OF ACTION
On 8 December 2025 one Noah Ephraem Tetteh Adamtey commenced an action in the Supreme Court of Ghana against the Attorney-General challenging the Constitutionality of portions of the Office of the Special Prosecutor, Act, 2017 (Act 959).
The Plaintiff sought eight reliefs. The main contention of the Plaintiff discernible from the first five reliefs he sought are that Sections 3 (3) and 4 of the Office of the Special Prosecutor Act, 2017 (Act 959) are inconsistent with and contravene Articles 88, 93 (2) and 296 of the 1992 Constitution and accordingly void.
Article 88 (3) and (4) delegates the hallowed executive authority and responsibility of the President under Article 58 of the Constitution to execute and enforce the laws of Ghana to the Attorney-General for the initiation and conduct of all prosecutions of criminal offences.
All criminal offences are to be prosecuted in the name of the Republic of Ghana at the suit of the Attorney-General or any other person authorised by him in accordance with any law.
The substance of the Plaintiff’s first five reliefs anchored on Section 3 (3) of Act 959 states that: (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, violates the Constitution.”
The problem which any experienced and erudite professional constitutional advocate in the Supreme Court will at once realize is that Sections 3 (3) and 4 of Act 959 do not confer upon the Special Prosecutor the powers the Plaintiff claims it does.
Section 3 of Act 959 deals with the functions of the OSP and not the powers of the Special Prosecutor. Section 4 of Act 959 deals with the mandate of the Office and subsection 2 thereof subjects the powers of the Special Prosecutor to Article 88 (4) of the Constitution and cannot be said to be void.
The Plaintiff makes an attempt in his reliefs (a) and (b) to rely on Article 296 of the Constitution dealing with the exercise of discretionary power as though it applies to the exercise of prosecutorial discretionary powers by the Attorney-General.
But experienced legal representation by an Interested Party can easily submit that the prosecutorial discretion of the Attorney-General derives from the common law as part of the existing law under Article 11 of the Constitution which forbids the courts from interfering in the exercise of prosecutorial discretionary power.
The sixth relief appears contradictory or at best is an alternative relief being sought in the same action when it seeks: “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 of a new Attorney-General unless re-authorized by that Attorney-General.”
The fact that the sixth relief cannot co-exist with the first five reliefs and cannot be argued as one cause of action must be obvious to any Interested Party with a good lawyer experienced in the practice of constitutional law in the Supreme Court of Ghana.
The Plaintiff’s alternative relief contained in his sixth relief is a clear admission that Act 959 is intra vires Article 88 of the Constitution except for the fact that it sought to bind succeeding Attorneys-General who did not nominate the Special Prosecutor for appointment.
The rules of practice do not allow a plaintiff to hedge his bets in litigation by making contradictory and alternative claims by the same Writ and Statement of Case.
Any Interested Party may wish to research the effects of such claims in terms of the rules on accrual causes of action and joinder of causes of action.
THE DEFECTS OF THE ATTORNEY-GENERAL’S PROPOSED CASE
The draft Statement of the Defendant’s Case exhibited to the application for leave for extension of time filed on 8 April 2026 also contains contradictory submissions, misrepresentations of facts, and the law which any experienced practitioner of constitutional law advocacy representing any Interested Party in the Supreme Court can bring out to aid the Court in impartially deciding the issues on the Constitutionality of Act 959.
The Attorney-General is at all times an officer of the Court available to assist the courts to do justice without fear or favour, affection, or ill will.
Consequently, one would have expected the Defendant’s Statement of Case to have objectively, neutrally and impartially addressed the implications of the nomination of the Special Prosecutor by the Attorney-General for appointment by the President on the prosecutorial powers conferred upon the Special Prosecutor under Section 14 (2) and (3) of Act 959.
One would also have expected the Defendant’s Statement of Case to have reconciled the powers of the President under Article 58, 76 and 78 over the Attorney-General under Article 88(1) and (2) with his powers under Article 88 (3) and (4) as this may affect how one may interpret Sections 13 (3) and (4) of Act 959.
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Who knows, the Supreme Court of Ghana may be persuaded by the grounds on which the US Supreme Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act, 1978 in Morrison v Olson, 487 U.S. 654 (1988).
In this regard, the Supreme Court may be assisted with the objective presentation that the Attorney-General identifies and nominates the person to be appointed the Special Prosecutor by the President for a term of only seven years.
Consequently, whatever prosecutorial authority his nomination and appointment gives him is subject to further authorization every seven years. The legal argument that the OSP is a juridical person for purpose of the exercise of delegated prosecutorial powers is wrong.
Section 14 of Act 959 makes it clear that the prosecutorial power is vested in the Special Prosecutor and not in the Office of the Special Prosecutor. The Attorney-General appointed under Article 88 of the Constitution is not a juridical person and in the same vein the Special Prosecutor appointed under Section 13 of Act 959 cannot be said to be a juridical person.
It is the Attorney-General who personifies the Office of the Attorney General just as it is the Special Prosecutor who personifies the Office of the Special Prosecutor.
CONCLUSION
The foregoing brief discourse about the action by the Plaintiff and the proposed Statement of the Defendant Case should not be interpreted to be an endorsement of the Constitutionality of Act 959.
I have stated already that I expected challenges to the Constitutionality of Act 959 when I was the Special Prosecutor and I was happy none was made during my tenure.
Indeed, there was no turf war between the Special Prosecutor and the Attorney-General during my tenure to warrant one.
It would have also been absurd for the Attorneys-General under the Akufo-Addo Government to have raised issues of the unconstitutionality of Act 959 in the Supreme Court in support of any Plaintiff without the prospect of termination of appointment as happened to me in 2012, Article 88 (3) and (4) notwithstanding.
The Attorney-General’s Statement of Case does not appear to me to objectively, neutrally and impartially present an ethical response to the Plaintiff’s Statement of Case that may assist the Supreme Court in the true tradition of the law as an officer of the Court in delivering justice in the controversy whether Act 959 is consistent with the Constitution.
On the contrary the Statement of Defendant’s Case is in the nature of an entire endorsement of the Plaintiff’s Writ and Statement of Case. The Attorney-General’s Statement of Case does not even hide his partisan interest in the Plaintiff’s Case when he fails to show which portion of the Plaintiff’s Case the Court should dismiss in part.
It looks unethical for the Attorney-General to use the occasion of the Plaintiff’s action to present a case that in substance agrees with the Plaintiff’s Case as though it is a collusive action.
I have no doubt that on the basis of the manner in which the Attorney-General proposes to join the Plaintiff’s action instead of assisting the Court to do justice, the Supreme Court will welcome an application by an Interested Party or Parties that raises some of the issues examined and analysed in this discourse.
Resorting to short social media posts to attack the Supreme Court is unhelpful to an enlightened debate on the Constitutionality of Act 959.
The Statement of the Defendant’s Case proposed to be filed by the Attorney-General makes one thing clear to me. The relationship between the Special Prosecutor and the Attorney-General under this Government has broken down beyond repair.
At the end of the day the Special Prosecutor and the Attorney-General cannot co-exist and cooperate in the fight against corruption.
By Martin A. B. K. Amidu 16 April 2026
Opinion Disclaimer
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of UBN Media Digital, Lovin Ghana News.com, or its associates. This content represents the author’s personal perspective and analysis.
