Whether this is merely perception or grounded in fact, the old saying still holds: actions speak louder than words. As Scripture says, “We speak of what we know, and we testify to what we have seen” (John 3:11, adapted).

Since its establishment, the OSP has consistently come under heavy criticism from the Ghanaian public for what many consider its ineffective delivery on its core mandate of investigating, prosecuting and curbing corruption and related offences.

Just about a week ago, there were renewed calls from the first Special Prosecutor, Mr. Martin Amidu, and private legal practitioner, Mr. Martin Kpebu, among others, for the current Special Prosecutor, Kissi Agyebeng, to resign.

This article seeks to unpack these perceptions, situate them in practical developments, and examine the OSP Act in light of the constitutional powers of the Attorney-General.

The central argument is that, in legal and practical terms, the relationship between the two offices resembles that of a master and a servant. 

The conclusion is that the OSP can only succeed if it consciously acknowledges the Attorney-General as the “soul” of its prosecutorial mandate and actively seeks alignment, guidance and collaboration.

What the law says about the OSP

A brief look at the governing statute is useful at this stage.

Section 2 of the Office of the Special Prosecutor Act, 2017 (Act 959) sets out the object of the Office as follows:

a. to investigate and prosecute specific cases of alleged or suspected corruption and corruption-related offences;

b. to recover the proceeds of corruption and corruption-related offences; and

c. to take steps to prevent corruption.

The OSP is therefore specifically tasked with prosecuting corruption and corruption-related cases, preventing corruption and recovering proceeds from such conduct.

Section 4 of the same Act, which deals with the mandate of the Office, provides that:

1.    Except as otherwise provided in the Constitution, the Office is not subject to the direction or control of any person or authority in the performance of the functions of the Office.

2.    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.

3.    Subsection (2) does not preclude Parliament, in the public interest, from requesting the Office to investigate alleged or suspected cases of corruption or corruption-related offences involving public officers, politically exposed persons or persons in the private sector.

A careful reading shows that subsection (1) seeks to insulate the OSP from control by any person or authority in performing its functions. 

On the other hand, subsection (2) makes its core prosecutorial function subject to authorisation by the Attorney-General, and it does so using the mandatory word “shall”.

The power of the Attorney-General in this regard is grounded in Article 88(4) of the 1992 Constitution, which states:

“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.”

The Attorney-General is the principal legal adviser to the Government and is responsible for the initiation and conduct of all prosecutions of criminal offences. Under section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the Attorney-General may delegate this power to other prosecutors to act on his or her behalf.

The OSP, though established as an independent office by statute, operates in a constitutional environment in which the Attorney-General’s authority over prosecutions is supreme. While section 4(1) of Act 959 appears to make the OSP “its own boss”, section 4(2) in the same breath subjects it to the Attorney-General’s constitutional role under Article 88, the hierarchy of laws becomes clear: the Constitution prevails.

In that sense, the OSP may be described as a “body” whose prosecutorial “soul” is, in law, the Attorney-General.

Independence or illusion? The dbate

There has been considerable disagreement on this point. Some have at times denied that the Office is subject to the authority of the Attorney-General. They may be approaching the issue from an intentionalist perspective, focusing on the supposed intention behind the creation of the OSP rather than the clear text of the law.

Historically, the OSP was created under former President Nana Addo Dankwa Akufo-Addo, in fulfilment of a campaign promise to establish a prosecution office that would be completely independent of the Attorney-General. This office, in the public imagination, was expected to have the courage to prosecute even sitting government officials without fear or favour.

This promise drew strength from longstanding calls for the decoupling of the Ministry of Justice from the Office of the Attorney-General, to enable the latter to function more like an independent prosecutor. The OSP was seen as a concrete step towards answering those calls.

It therefore came as a surprise to many experts and commentators when, on reading the OSP Act for the first time, they encountered section 4(2), which clearly subjects the supposedly independent office to the political office of the Attorney-General. Yet, “it is what it is.” We can only confront the legal reality and, if dissatisfied, advocate reform.

Disaffection with the OSP

The Office of the Special Prosecutor, under the leadership of Kissi Agyebeng, has undertaken commendable work in investigating and preparing cases for court against persons alleged to be involved in corruption and corruption-related offences. However, many Ghanaians, including the writer, feel that its output still falls short of expectations.

Whenever the OSP comes up in public discourse, some critics are quick to describe it as ineffective and dismiss its work as limited to press conferences and media engagement.

On that point, I disagree. Those engagements are part of its statutory obligation under section 3(3) of Act 959 to promote transparency and public education.

That said, it does appear that the OSP has struggled, in part because it initially failed to fully accept the legal reality that it is not equal to the Attorney-General in terms of constitutional authority, even though it is independent in performing its internal functions.

By long-standing tradition and practice, the Attorney-General and that office are accorded a certain reverence and deference in court.

That may not automatically extend to the OSP, even though, in my view, the OSP deserves similar professional respect given the gravity of the cases it handles in the national interest.

One senses that the Special Prosecutor himself feels challenged by what he perceives as a lack of such consideration in court.

History offers an illustration. In November 2023, the Special Prosecutor publicly complained about what he described as the “dismissive” conduct of some judges towards his office, suggesting that some were even engaged in a “gang” war against the OSP.

Whether or not that assessment was fair is not my focus here. The question I pose instead is: has this situation improved, or does it still have a debilitating impact on the OSP’s effectiveness and results?

Calls for the Special Prosecutor’s resignation

Against the background of public disappointment with the OSP’s performance, there have been renewed calls for the resignation of Mr. Kissi Agyebeng. These calls have been led by the first and former Special Prosecutor, Mr. Martin Amidu, and legal practitioner, Mr. Martin Kpebu, who has also been very critical of the Office in recent times.

Whether these calls are justified or not is ultimately a matter for the law and the appointing authority. The OSP Act clearly set out the grounds and procedure for the removal of a Special Prosecutor. It is to those provisions that we must defer.

The way forward: Recognising the “soul”

I am not privy to any correspondence, nor do I have insider knowledge of the detailed communications and collaborations between the Attorney-General’s Office and the OSP.

However, it is reasonable to conclude that stronger collaboration and partnership between the two would significantly enhance the OSP’s effectiveness.

Whether we like it or not, the Attorney-General is the primary constitutional office for prosecutions in Ghana. The OSP, though described as independent, operates in a space that the law has ultimately placed under the umbrella of the Attorney-General’s prosecutorial authority.

The first strategic step towards boosting the OSP’s impact and speed, therefore, is for the OSP to fully acknowledge that the Attorney-General is, in law, its “soul” when it comes to initiating and conducting prosecutions in the name of the Republic. It must then give this reality practical expression through deliberate, respectful and structured collaboration, as envisaged under Act 959.

Such an approach would help avoid duplication of prosecutions, reduce confusion and unnecessary turf battles, and foster a more seamless exchange of information, expertise, skills and personnel. The Attorney-General’s Office, with its institutional memory and experience, can sharpen and strengthen the OSP for a more successful execution of its mandate and a higher success rate in court, irrespective of the many negatives which I reserve for another day.

After all, as the Good Book reminds us in Proverbs 27:17: “Iron sharpeneth iron.”