One Rule, Many Prosecutors — Why the High Court Singled Out the OSP While Police, EOCO, and Others Still Prosecute
When the High Court ruled this month that the Office of the Special Prosecutor cannot prosecute without the Attorney-General’s express authorisation, one question echoed through legal WhatsApp groups and Parliament’s lobbies: Why the OSP?
After all, the list of non-Attorney-General prosecutors in Ghana is long:
1. Ghana Police Service – prosecutes daily in district courts
2. OSP – Act 959
3. SSNIT – various enactments
4. Nuclear Regulatory Authority Inspectors – Act 328
5. Civil Aviation Authority – Act 1120
6. GRA – Act 915
7. SEC – Act 929
8. Narcotics Control Commission – Act 1019
9. CEPS/Customs Division of GRA – under Act 891
10. District Assemblies – under Act 936
11. FDA – under Act 851
12. Bank of Ghana – under Acts 930 & 1032
13. EOCO – under Act 804
14. Immigration Service – Act 573
If all these bodies prosecute, why did the High Court in Peter Archibold Hyde v. The Republic declare only the OSP’s prosecutions unconstitutional without A-G authorisation? The answer lies not in politics, but in punctuation — the specific words Parliament used in each Act, and how they square with Article 88 of the Constitution.
### 1. What Article 88 Actually Requires
Article 88(3) makes the Attorney-General “responsible for the initiation and conduct of all prosecutions of criminal offences.” Article 88(4) adds: “All offences prosecuted in the name of the Republic shall be at the suit of the Attorney-General _or any other person authorised by him in accordance with any law.”
Translation: Anyone else can prosecute, but only if two conditions are met:
A. There is a law, and B. That law shows the A-G has authorised them.
The High Court’s test in the OSP case was simple: Does Act 959 contain clear authorisation from the A-G, or a clear delegation mechanism? The Court said no. The Act says the OSP shall “investigate and prosecute on the authority of the Attorney-General,” but the Court read that as requiring a further act of authorisation, not granting it automatically.
### 2. Why Other Agencies Survived — The Wording Matters
Check the language Parliament used for other bodies. The differences are subtle but decisive:
The Agency, Act, Key Prosecution Clause, Why It’s Different from OSP
**Police- Criminal Procedure Code, s. 56 “A police officer may conduct a prosecution” Long-standing pre-1992 practice; courts have held it’s implied delegation under Article 88. Also limited to lower courts.
**EOCO- Act 804, s. 3(1)(d) “The Office shall… prosecute offences… on the authority of the Attorney-General” Same phrase as OSP, but EOCO has since 2010 operated under a general authorisation instrument signed by successive A-Gs. OSP could not show one.
**CEPS/GRA -Act 891, s. 74 “An officer of the Authority may prosecute… with the consent of the Commissioner-General” Delegation is from Commissioner-General, who is himself appointed by President with A-G input. Courts have treated it as indirect A-G authorisation.
**FDA- Act 851, s. 111 “The Authority may prosecute… or authorise an officer to prosecute” Act 851 expressly says prosecution is “subject to Article 88.” Courts read that as acknowledging A-G’s overriding power.
**Bank of Ghana- Act 930, s. 77 “The Bank may prosecute… without prejudice to the powers of the Attorney-General”
“Without prejudice” clause = Parliament recognised A-G’s supremacy and carved a limited exception.
**District Assemblies- Act 936, s. 152 “An Assembly may prosecute offences under its by-laws” Limited to by-laws, not Criminal Offences Act. Courts treat by-law prosecution as quasi-criminal, not “prosecution of criminal offences” under Article 88.
**OSP- Act 959, s. 3(1)(a) “The Office shall… investigate and prosecute… on the authority of the Attorney-General”
No “without prejudice” clause. No separate A-G instrument tendered. No carve-out for by-laws. Court said “on the authority of” = after getting authority, not with inherent authority.
In short: Most other Acts either (1) contain express words showing Parliament intended to delegate A-G power, (2) operate under long-standing instruments of delegation, or (3) are limited to regulatory or by-law offences that courts don’t classify as full “criminal offences” under Article 88.
Act 959 had none of those saving phrases, and the OSP had no delegation letter to show.
### 3. ‘Authorised by Parliament’ vs. ‘Authorised by the A-G’
Some agencies — like the Police — were created before 1992. Their prosecutorial role was “saved” by the transitional provisions and decades of case law. Courts have held that their power is a delegated one under Article 88, even if the delegation is old and implied.
Newer bodies like EOCO, FDA, and BOG were created after 1992, but their Acts were drafted with Article 88 in mind. Drafters inserted “without prejudice to the powers of the Attorney-General” or required “consent of” a superior who answers to the A-G.
The OSP Act was also post-1992. But its drafters chose the phrase “on the authority of the Attorney-General” without defining how that authority is conferred. The High Court interpreted that as a condition precedent, not a grant. One word — “on” instead of “with” or “having” — changed the outcome.
### 4. Why This Isn’t an Attack on Anti-Corruption
The judgment does not say the OSP is illegal. It says the OSP’s mode of prosecution is incomplete. The fix is administrative: get a general authorisation from the A-G under Article 88(4), gazette it, and continue. EOCO did this in 2012. GRA does it annually. The OSP had not.
The Court was enforcing process, not policy. If Parliament wants the OSP to have automatic power, it must amend Act 959 to say: “The Special Prosecutor is hereby authorised by the Attorney-General for the purposes of Article 88(4) to prosecute all offences under this Act.” Five lines. No referendum needed.
###5. The Real Risk: Selective Enforcement
The danger is not legal; it is political. If the A-G now has to sign off on every OSP case, critics fear a future A-G could block politically sensitive prosecutions. Supporters argue that’s exactly the accountability Article 88 intended — the A-G is answerable to Parliament; the OSP is not.
But that debate is for Parliament, not the High Court. The Court’s job was to read Article 88 and Act 959 together. It did. The words did not match.
### 6. What Happens to the Other 13 Agencies?
Nothing, yet. Their powers rest on different wording or existing instruments. But the _Hyde_ judgment is a warning. Any defence lawyer can now ask EOCO, FDA, or SEC: “Where is your A-G authorisation?” If they have one, case continues. If not, they’ll scramble like the OSP.
The Attorney-General’s Department, anticipating this, is reportedly compiling all delegation instruments dating back to 1993. Agencies without one will be asked to apply. The era of implied powers is ending. Express delegation is the new standard.
### The Constitution Has a Gatekeeper
Ghana has 14+ bodies that prosecute because the state is vast and crime is specialised. The Constitution lets that happen, but it insists on one gatekeeper: the Attorney-General.
The OSP wasn’t singled out because it fights corruption. It was singled out because its Act was drafted without the magic words “hereby authorised,” and it went to court without a letter. The Police have 100 years of practice. EOCO has a 2012 instrument. The FDA has “subject to Article 88.” The OSP had a comma.
So the High Court didn’t declare the OSP unconstitutional. It declared its current method unconstitutional. The difference is a signature.
For the rule of law, that signature matters. For the fight against corruption, it should take 24 hours to get. If it takes longer, the problem isn’t the judgment. It’s the politics.
And that, too, is exactly what Article 88 was written to expose.