The Executive Director of the Centre for Democratic Development (CDD-Ghana), Prof. H. Kwasi Prempeh, has criticised the handling of a Supreme Court case challenging the constitutional basis of the Office of the Special Prosecutor (OSP), warning that recent procedural decisions risk undermining Ghana’s adversarial justice system.
In a Facebook post reacting to ongoing proceedings in the case of Adamtey v Attorney General, Prof. Prempeh argued that the court’s approach effectively denies the OSP the opportunity to defend the legality of its own statutory establishment, while allowing the Attorney General (AG) to act as nominal defendant despite not holding an adverse position.
The case, which is before the Supreme Court of Ghana, seeks to determine whether the Office of the Special Prosecutor Act, 2017 is consistent with Article 88 of the 1992 Constitution, which vests prosecutorial authority in the AG.
The OSP has been widely understood to have a direct interest in defending its statutory independence. However, Prof. Prempeh argued that excluding it from directly defending the suit risks privileging “form over substance”.
“So the Supreme Court of Ghana will not allow the ‘real party in interest,’ the OSP in this case, to defend against a lawsuit challenging the constitutionality of its statutory establishment and existence… but will allow the ‘nominal defendant,’ the AG, whose position and interest in the suit is not adverse to that of the plaintiff,” he wrote.
He further warned that the arrangement could encourage what he described as “collusive suits” or “sham cases”, where both the AG and the private plaintiff effectively advance the same legal position before the court.
“The Court is essentially privileging ‘form over substance’ and encouraging collusive suits or ‘sham cases’… This is not how litigation or adjudication in the common law tradition is supposed to work,” he stated.
Prof. Prempeh added that adversarial proceedings require genuinely opposing sides to allow the court to benefit from robust legal argumentation before reaching a decision.
“Refusing to allow the OSP to defend this suit… makes a mockery of our adversarial system of justice. Let the OSP defend this suit,” he said.
The post comes amid heightened legal debate over the constitutionality of the OSP’s independent prosecutorial powers, an issue currently before the Supreme Court in a case brought by private citizen Noah Ephraem Tetteh Adamtey.
Earlier filings by the Attorney General have argued that the OSP Act may be inconsistent with the 1992 Constitution, specifically Article 88, which vests prosecutorial authority solely in the AG, subject to limited delegation.
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