In one breath, Parliament guaranteed the Office of the Special Prosecutor’s independence. In the next, it took it back. That is poor legislation. That is why Parliament should be blamed for the gap between policy — an independent OSP to investigate and prosecute corruption without political interference — and law, which now forces the OSP to beg the Attorney-General for permission.
Read Clause 4(1) of the Office of the Special Prosecutor Act, 2017: “The Office shall be independent of the direction or control of any person or authority in the performance of its functions.” Clear. Unqualified. It matches the policy promise sold to Ghanaians: a prosecutor who answers to evidence, not to Cabinet.
Now read Clause 4(2): “The Special Prosecutor shall, in the performance of functions under this Act, be subject to the authority of the Attorney-General.”
That is a clawback. It is a contradiction written into the same section. Clause 4(1) builds an independent office. Clause 4(2) puts a politician’s leash on it. The word is “shall.” Not “may.” Not “in consultation with.” Shall. The Special Prosecutor must submit to the Attorney-General’s authority before initiating investigation and prosecution.
1. Policy Said Independence. Law Said Permission.
The policy was simple. Create a body to chase politically exposed corruption. Make it free from political control. Let it prosecute ministers, MPs, and party financiers without asking Cabinet. Parliament wrote that policy into Clause 4(1).
Then Parliament killed it with Clause 4(2). No prosecutor is independent if he must obtain authorization from a Cabinet minister to start a case. No investigation is free from interference if the Attorney-General can withhold authority, delay it, or attach conditions. The High Court in Peter Archibold Hyde v. The Republic did not misinterpret the Act. It read Clause 4(2) and applied Article 88 of the Constitution. The court cannot ignore “shall.”
This is poor legislative drafting. It is not a technical slip. It is a structural defect. You cannot legislate independence and dependence in the same section and expect the courts to pretend Clause 4(2) is invisible.
2. Was It Deliberate? Look at Who Benefits
Parliament knew Article 88 gives the Attorney-General a monopoly over prosecutions. Every MP, every member of the Constitutional, Legal and Parliamentary Affairs Committee, and every lawyer at the Attorney-General’s Department knew it. They still passed Clause 4(2).
If it was a mistake, it is an incompetent mistake. If it was deliberate, it is a dishonest one. Either way, Parliament should be blamed.
Who benefits from Clause 4(2)? The Attorney-General, a political appointee. Cabinet, whose members are the usual suspects in corruption dockets. The ruling party, which gets veto power over which of its own goes to court. Who loses? The public, which was promised an independent prosecutor and got a subordinate instead.
When a law’s effect is to protect politicians from prosecution, and that effect was foreseeable, “drafting error” is not a defence. It is an indictment.
3. The Cost of Contradictory Clauses
The OSP has dockets. It has evidence. It has suspects. It does not have Clause 4(1) power because Clause 4(2) cancels it. So files sit. GH¢52.5 billion is queried by the Audit Service. Assets are not frozen in time. Witnesses do not wait forever. Every month the OSP spends seeking “authorization” is a month the money moves and the case weakens.
That is financial loss caused by legislative drafting. Parliament wrote a law that cannot do what Parliament said it would do. The gap between policy and law is not a loophole. It is a garage door, and corruption is driving through it.
4. Parliament Had the Tools to Get It Right
Parliament could have done one of three things:
1. Amend Article 88 first*, then give the OSP full prosecutorial power.
2. Draft Clause 4(2) differently: “The Special Prosecutor shall consult the Attorney-General” instead of “be subject to the authority of.” Consultation is not control.
3. Admit the limit: Tell Ghanaians the OSP can only investigate and must hand files to the A-G. At least the policy would match the law.
It did none. It chose language that promised independence and delivered dependence. That is poor legislation. That is why Parliament should be blamed.
5. The Supreme Court Cannot Fix Parliament’s Job
Hopefully the Supreme Court will settle this matter soon. But the Court cannot delete Clause 4(2). It cannot rewrite “shall” to “may.” It cannot amend Article 88. It can only say what the text means. The text means the OSP is subject to the Attorney-General. If that defeats the policy, the fault lies with the people who wrote the text.
Courts interpret law. Parliament writes law. When law fails, the writer is responsible, not the reader. Asking the Supreme Court to save the OSP from Parliament is asking the judiciary to do legislation. That is not its job.
My Take: It Was Foreseeable, So It Was Deliberate
You do not put Clause 4(1) and Clause 4(2) side by side by accident. You do not use “shall” by accident. You do not ignore Article 88 by accident when the A-G’s own lawyers vet the bill.
The only reasonable conclusion is that Clause 4(2) was deliberate. Parliament wanted to tell the public it created an independent prosecutor while telling Cabinet it kept the key to the courtroom. That is why the OSP must now ask permission to do its work.
That is why Parliament should be blamed. Poor legislative drafting is the polite term. The accurate term is legislative sabotage.
Own the Mess, Then Fix It
Parliament gave Ghana a Special Prosecutor and then gave the Attorney-General veto power over him. That is not a gap between policy and law. That is a contradiction inside the law.
The Supreme Court may clarify. It cannot correct. Correction requires Parliament to admit it wrote a bad law, repeal Clause 4(2), and — if it is serious — amend Article 88.
Until then, every corruption case that stalls for “authorization” is on the Hansard. The votes are recorded. The assent is gazetted. Parliament must be held accountable for the mess. No one else wrote Clause 4(2).