Legal Practitioner Questions High Court’s Authority in OSP Prosecution Ruling
A private legal practitioner, Nicholas Osei Darkwa, has questioned the authority of the High Court to make determinations on the prosecutorial powers of the Office of the Special Prosecutor (OSP), insisting that such matters fall within the exclusive jurisdiction of the Supreme Court.
Speaking in an interview with Kofi Boakye on Opemsuo Radio, Mr. Osei Darkwa explained that the powers of the Special Prosecutor are derived from an Act of Parliament, and any challenge to that authority must be addressed at the appropriate constitutional forum.
“The power of the Special Prosecutor to prosecute comes from an Act of Parliament, and the question is whether a High Court can strike down that Act. The answer is no,” he stated.
He pointed out that, any person who believes that an enactment is inconsistent with the Constitution must bring the matter before the Supreme Court.
Mr. Osei Darkwa further disclosed that there is already a pending case before the Supreme Court challenging Section 4 of the Office of the Special Prosecutor Act, which grants prosecutorial powers to the Office, on grounds that it may be inconsistent with Article 88 of the Constitution.
“I am surprised that a High Court would make a ruling on this matter when the same issue is already before the Supreme Court,” he said.
Mr. Osei Darkwa noted that the case before the High Court may have originated from a quo warranto proceeding, although he indicated that he was not fully privy to the details of the case.
He emphasised that the Constitution remains the supreme law of Ghana, and any law found to be inconsistent with it can only be declared null and void by the Supreme Court.
“If you believe the powers given to the Special Prosecutor are unconstitutional, then you are essentially challenging Parliament, not the Office itself, and only the Supreme Court can make that determination,” he explained.
Touching on the broader constitutional implications, Mr. Osei Darkwa suggested that Parliament could have avoided such legal controversies by amending Article 88 to explicitly allow for prosecutorial powers to be extended to independent bodies like the OSP.
He, however, noted that constitutional interpretation is not always straightforward, as the Supreme Court often considers both the letter and the spirit of the law.
According to him, while some may argue that the Special Prosecutor’s powers conflict with Article 88, the Supreme Court may also interpret the Constitution in a way that supports efforts to promote accountability and fight corruption.
He added that the establishment of the OSP could be justified as a necessary step to ensure independent prosecution, particularly in a system where the Attorney-General’s office may be influenced by political considerations.
Mr. Osei Darkwa therefore stressed the need for clarity and adherence to constitutional processes in addressing the matter, urging that all such disputes be properly resolved at the Supreme Court.
