Supreme Court Upholds Constitutionality of the Office of the Special Prosecutor: Firm Participates in Successful Civil Society Amicus Intervention

Merton & Everett LLP welcomes the unanimous judgment of the Supreme Court of Ghana delivered on Wednesday, 29 July 2026 in Noah Ephraem Tetteh Adamtey v The Attorney-General (Suit No. J1/3/2026), upholding the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) and affirming the prosecutorial mandate of the Office of the Special Prosecutor.

The firm was privileged to serve as part of the legal team representing fourteen civil society organisations including Ghana Center for Democratic Development (CDD-Ghana), Transparency International Ghana, the Ghana Anti-Corruption Coalition (GACC), Democracy Hub LBG, STAR-Ghana Foundation, NORSAAC, Penplusbytes, the Africa Center for Energy Policy (ACEP), Odekro Parliamentary Monitoring Organization, A Rocha Ghana, Parliamentary Network Africa (PN Africa), IMANI-Africa, the One Ghana Movement, and Africa Education Watch who intervened in the proceedings as amici curiae. The intervention was filed by Beyuo & Co, and the legal team was led by four of Ghana’s top lawyers: Samson Lardy Anyenini, Oliver Barker-Vormawor, Kizito Beyuo and Kojo Akapame.

The suit challenged the constitutionality of Sections 3(3) and 4 of Act 959, contending that the independent prosecutorial powers conferred on the OSP were inconsistent with Articles 1(2), 88(3) and (4), 93(2) and 296 of the 1992 Constitution. The intervention was rendered necessary by what the amici described in their Statement of Case as “an extraordinary circumstance”: the Attorney-General had filed a Statement of Case that accepted, in substance, every principal ground of the Plaintiff’s attack on the Act, such that “no party before the Court presented either a plausible alternative reading or defence of the impugned provisions, a reasoned articulation of the public interest in their continued operation, or a canvass of remedies short of the declarations of invalidity.” The amici therefore intervened “to supply a critical missing voice in the adversarial record.”

The amici’s Statement of Case, filed on 30 April 2026, ran to over 230 pages and advanced a carefully structured three-tier argument. Its primary case was that Sections 3(3) and 4 of Act 959, read together with L.I. 2374, are on their proper construction fully consistent with the Constitution, since Article 88(3) allocates responsibility for prosecutions to the Attorney-General while Article 88(4) permits prosecutions at the suit of “any other person authorised by him in accordance with any law” — a framework within which the OSP lawfully operates. The amici warned that the relief sought, though framed narrowly, “would nonetheless, in its practical operation, hollow out the statutory foundation on which the Office of the Special Prosecutor stands” and “cast doubt on every prosecution the Office has instituted since 2018.” They further cautioned that the Plaintiff’s logic, if accepted, “would place in constitutional peril” the prosecutorial competences of the Economic and Organised Crime Office, the Narcotics Control Commission, the Securities and Exchange Commission, the Bank of Ghana, the Customs Division of the Ghana Revenue Authority and other statutory bodies across Ghana’s legal order.

The Supreme Court’s judgment substantially vindicates the amici’s primary case. The Court upheld the constitutionality of Act 959 in its entirety, affirmed that Parliament acted within its mandate in establishing the Office with authority to initiate and conduct prosecutions, and rejected the contention that the Special Prosecutor requires case-by-case written authorisation from the Attorney-General, thereby also displacing the effect of the High Court decision of 15 April 2026 which had questioned the Office’s prosecutorial autonomy. Consistent with the constitutional architecture the amici defended, the Court clarified that the Attorney-General retains the authority under Article 88 to discontinue prosecutions, confirming that the Office operates within, and not outside, the constitutional framework of prosecutorial responsibility.

The judgment secures the legal foundation of one of Ghana’s most important accountability institutions and preserves the validity of the prosecutions and recoveries the Office has undertaken since its establishment. It also stands as a powerful affirmation of the role of civil society, and of public interest advocacy, in defending the institutional integrity of the Republic — particularly where the ordinary adversarial process fails to present the Court with a full defence of a duly enacted law.

Merton & Everett LLP congratulates the amici organisations on their principled intervention, and salutes the entire legal team. We remain committed to the defence of constitutionalism, accountability and independent public institutions in Ghana.