The Executive Director of the Centre for Democratic Development (CDD-Ghana), Professor H. Kwasi Prempeh, has criticised the Supreme Court’s handling of a constitutional case challenging the legal basis of the Office of the Special Prosecutor (OSP), warning that recent procedural decisions risk undermining Ghana’s adversarial system of justice.
In a Facebook post reacting to proceedings in the case of Adamtey v Attorney-General, Prof. Prempeh argued that the court’s refusal to allow the OSP to defend the suit effectively denies the “real party in interest” the opportunity to protect its statutory existence, while leaving the Attorney-General (AG) as the nominal defendant despite sharing a similar position with the plaintiff.
The ongoing Supreme Court case, brought by private citizen Noah Ephraem Tetteh Adamtey, seeks to determine whether key provisions of the Office of the Special Prosecutor Act, 2017 (Act 959), are consistent with Article 88 of the 1992 Constitution, which vests prosecutorial authority in the Attorney-General.
The OSP had earlier applied to be joined as a party to the suit, citing its direct interest in the outcome, particularly regarding its independent mandate to investigate and prosecute corruption cases. However, the Supreme Court dismissed the application, ruling that the issues could be adequately determined between the plaintiff and the Attorney-General without the OSP’s direct participation.
Prof. Prempeh described the arrangement as problematic, noting that the Attorney-General’s recent filings appear to support the plaintiff’s position that certain aspects of the OSP Act, especially those granting independent prosecutorial powers, may be inconsistent with the Constitution.
“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 cautioned that such an approach could open the door to “collusive suits” or “sham cases,” where the nominal defendant and the plaintiff essentially advance the same arguments, depriving the court of robust, opposing viewpoints.
“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,” Prof. Prempeh stated.
He emphasised that the adversarial nature of Ghana’s justice system relies on genuinely opposing parties presenting balanced arguments to aid the court in arriving at well-reasoned decisions.
“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 concluded.