Former Supreme Court Justice William Atuguba has said Ghana’s constitutional framework clearly vests prosecutorial authority in the Attorney-General, but stressed that applying that principle to the ongoing dispute involving the Office of the Special Prosecutor (OSP) is legally complex and far from settled.

Speaking in an interview with Joy News’ Gemma Appiah, Justice Atuguba pointed to Article 88(5) of the 1992 Constitution as the basis of the current debate, noting that it assigns prosecutorial powers to the Attorney-General.

“The Constitution is clear that prosecutorial authority in Ghana belongs to the Attorney-General,” he indicated, adding that on a plain reading, this position appears to support the recent High Court ruling in the OSP case.

However, he said the issue is not straightforward, given existing legal practices where other state agencies also exercise prosecutorial functions under delegated authority.

Justice Atuguba explained that institutions such as the Ghana Police Service also prosecute cases in court, even though they are not the Attorney-General.

He noted that this practice is rooted in earlier legislative arrangements where the Attorney-General was permitted to delegate prosecutorial functions to other officers and agencies.

“It’s not free from complexity,” he said, pointing out that some of these arrangements originated under earlier constitutional or military-era legal frameworks.

According to him, this raises questions about whether such delegation structures remain fully valid under the 1992 Constitution.

Justice Atuguba also highlighted the legal principle delegatus non potest delegare, meaning a delegate cannot further delegate authority, as a key issue the Supreme Court may need to consider.

The retired judge stressed that the Supreme Court will have to address multiple layers of legal interpretation, including constitutional text, historical practice, and principles of delegation, before arriving at a definitive ruling.

The Supreme Court is expected to provide final clarity on the scope of its prosecutorial powers as the case progresses.

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Attorney General has power to prosecute, but OSP case is not ordinary matter - Justice Atuguba

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