The Deputy Attorney-General and Deputy Minister for Justice, Justice Srem-Sai, has argued that Parliament does not have the constitutional authority to prosecute criminal cases and therefore cannot delegate such powers to any institution, including the Office of the Special Prosecutor (OSP).
His comments come in the wake of a recent High Court ruling that raised questions about the prosecutorial powers of the Office of the Special Prosecutor, sparking renewed public and legal debate over the scope of its mandate.
Speaking on The Law, Samson Lardy Anyenini on Sunday, April 19, Mr. Srem-Sai said the 1992 Constitution clearly vests prosecutorial authority in the Attorney-General, making any attempt by Parliament to transfer that power through ordinary legislation legally untenable.
“Parliament has no power to prosecute, and once it has no power to prosecute, it cannot delegate that power to anybody,” he said.
He anchored his argument in Article 88 of the Constitution, which designates the Attorney-General as the principal legal adviser to the state and the official responsible for initiating and conducting criminal prosecutions.
According to him, while the Attorney-General may delegate prosecutorial powers, such delegation must follow recognised legal procedures, including executive instruments for public officers or fiats for private individuals.
He maintained that reliance on provisions within the OSP’s enabling law does not satisfy this constitutional requirement.
“The person whom the Constitution gives authority to is the only person who can delegate it,” he stressed, adding that Acts of Parliament or legislative instruments cannot replace that authority.
Mr. Srem-Sai said the High Court ruling was based on the OSP’s inability to show that it had obtained proper authorisation from the Attorney-General before initiating prosecutions. He explained that the court interpreted Section 4 of the OSP Act as requiring such authorisation through recognised legal means.
Without that, he warned, prosecutions conducted by the OSP risk being declared invalid.
He further noted that the court’s directive for the Attorney-General to take over ongoing cases should be seen as a way of regularising proceedings, rather than a full reassignment of prosecutions to a new legal team.
Parliament cannot alter constitutional powers by statute
Mr. Srem-Sai also argued that creating an independent prosecutorial authority would require a constitutional amendment, not ordinary legislation.
“If you want to create an independent prosecutorial authority in Ghana, you must amend the Constitution,” he said.
He described any attempt to achieve such a change through the OSP Act or related instruments as a “backdoor” approach that could undermine constitutional governance and the rule of law.
Addressing arguments that the OSP was designed to operate independently, he said the law itself is explicit that the office prosecutes “on the authority of the Attorney-General.”
He added that in cases of conflict between legislative memoranda and the actual law, the written law prevails.
“When there is a conflict between what is stated in the law and what is in the memorandum, what prevails is what is stated in the law,” he said.
Mr. Srem-Sai cautioned that bypassing constitutional procedures in pursuit of policy goals could set a dangerous precedent for governance.
“In public law, the procedure matters as much as the outcome,” he said. “If you don’t follow the prescribed process, whatever you achieve can be struck down.”
He indicated that the Attorney-General’s office would comply with the court’s directives and take steps to regularise affected prosecutions.
While acknowledging concerns that the ruling could affect anti-corruption efforts, he insisted that constitutional compliance must remain the priority.
“No one wished for this outcome,” he said. “But it is something many legal minds anticipated. The solution is to follow the Constitution.”