The Executive Director of the Centre for Democratic Development (CDD-Ghana), H. Kwasi Prempeh, has raised concerns over the handling of a Supreme Court case challenging the constitutional basis of the Office of the Special Prosecutor (OSP), warning that recent procedural decisions could undermine Ghana’s adversarial justice system.
In a Facebook post reacting to proceedings in the case of Adamtey v Attorney General, Prof. Prempeh argued that the court’s approach effectively prevents the OSP—widely seen as the “real party in interest”—from defending the legality of its establishment, while allowing the Attorney General’s Department to remain the nominal defendant despite not taking an opposing position.
The case 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 Attorney General.
Prof. Prempeh argued that excluding the OSP from defending the suit risks prioritising procedural form over substantive justice.
“So the Supreme Court will not allow the ‘real party in interest,’ the OSP, to defend against a lawsuit challenging its existence, but will allow the ‘nominal defendant,’ the Attorney General, whose position is not adverse to that of the plaintiff,” he noted.
He cautioned that such an arrangement could encourage what he described as “collusive suits” or “sham cases,” where both the Attorney General and the private plaintiff advance similar legal positions.
“The Court is essentially privileging form over substance and encouraging collusive suits… This is not how litigation in the common law tradition is supposed to work,” he stated.
According to him, adversarial proceedings require genuinely opposing parties to ensure courts benefit from balanced legal arguments before making determinations.
“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 urged.
The case, brought by private citizen Noah Ephraem Tetteh Adamtey, has sparked broader legal debate over the constitutionality of the OSP’s independent prosecutorial powers.
Earlier filings by the Attorney General have reportedly argued that aspects of the Office of the Special Prosecutor Act may be inconsistent with the Constitution, particularly Article 88, which vests prosecutorial authority in the Attorney General, subject to limited delegation.
