Ghana's Parliament Cannot Transfer Attorney-General's Powers: Constitutional Mandate

• The Attorney-General's prosecutorial powers are constitutionally mandated, making it impossible for Parliament to transfer them through legislation.
• The Office of the Special Prosecutor's powers are derived from Parliament, but they cannot alter constitutional allocations of power.
• Any attempt to interpret the OSP Act as transferring prosecutorial authority to the Special Prosecutor would amount to an indirect amendment of the Constitution without following the prescribed constitutional procedure.

Parliament has no power to prosecute, and if you have no power to prosecute, you cannot delegate that power to anybody.

The Attorney-General's prosecutorial powers are constitutionally mandated, meaning Parliament cannot transfer them through legislation. This is because the Constitution explicitly vests authority to conduct public prosecutions in the Attorney-General, rendering any attempt by Parliament to reassign or delegate that authority unconstitutional. The Deputy Attorney-General and Minister for Justice, Dr Justice Srem-Sai, emphasized this point during a recent discussion on JoyNews. He stated that arguments suggesting Parliament had delegated the Attorney-General's prosecutorial powers to the Special Prosecutor through legislation were fundamentally flawed. This is because the Constitution does not confer the power to prosecute on Parliament, making it impossible for them to delegate such authority.

The Office of the Special Prosecutor (OSP) was established to strengthen the fight against corruption and ensure that public officials are held accountable. However, the OSP's powers are derived from Parliament, which means they cannot alter constitutional allocations of power. The Deputy Attorney-General highlighted this distinction between the OSP's role and the Attorney-General's constitutionally mandated prosecutorial powers. He explained that while the OSP can investigate and prosecute corruption cases independently, it must operate within the bounds set by the Constitution. Any attempt to interpret the OSP Act as transferring prosecutorial authority to the Special Prosecutor would amount to an indirect amendment of the Constitution without following the prescribed constitutional procedure.

The Deputy Attorney-General's stance has significant implications for constitutional governance in Ghana. It underscores the importance of respecting the separation of powers between Parliament, the Executive, and the Judiciary. The Constitution is clear on the roles and responsibilities of each branch, and any attempt to circumvent these allocations can have far-reaching consequences. Dr Srem-Sai emphasized that while the objective of strengthening the OSP was widely supported, constitutional safeguards must not be compromised in pursuit of this goal. The Supreme Court is scheduled to deliver judgment on July 29, 2026, in the case challenging the prosecutorial powers of the OSP, which will provide clarity on whether Parliament's attempts to transfer prosecutorial authority were constitutional.

Lawyers should be aware that any attempts to transfer the Attorney-General's prosecutorial powers through legislation are unconstitutional and may lead to a challenge in court, as seen in the ongoing Supreme Court case.

Source: Original reporting via JoyNews