The High Court in Accra, on April 15, 2026, stripped the Office of the Special Prosecutor (OSP) of its prosecutorial powers.

The court held that the Office of the Special Prosecutor requires the authorisation of the Attorney-General to initiate and conduct prosecutions of corruption and related offences, and ordered that the Office of the Attorney-General take over all the cases of the OSP.

This ruling has led to diverging views and interpretations from the public, even among legal practitioners.

US-based Ghanaian academic and legal scholar, Professor Stephen Kwaku Asare (Kwaku Azar), who is known for his apt explanation of legal issues, in a post shared on Facebook on Friday, April 17, 2026, gave his take on the matter.

Azar initially suggested that the decision of the court was apt, pointing to the judge's insistence that the right thing must be done.

“It (the ruling of the court) has several strengths. First, it takes constitutional text seriously. The judge refuses to let enthusiasm for anti-corruption institutions override Article 88’s language. That is a real judicial virtue.

“Second, it insists that public power must have a lawful source. That is a healthy rule-of-law instinct. If an institution is exercising coercive criminal power, a court is entitled to ask exactly where that power comes from. Third, it recognises the hierarchy of norms. An ordinary statute cannot casually displace entrenched constitutional design. That is also correct in principle,” he said.

The legal luminary, however, noted that the ruling of the court was narrow and filled with “political speculation”.

“The court suggests that because Article 88 is entrenched, the creation of the OSP may have been driven by a desire to fulfil a campaign promise through 'legislative gymnastics' designed to avoid the constitutional amendment process. By invoking political motivations, the court shifts from legal interpretation to a normative critique of legislative policy, which is not the function of a trial court exercising judicial review.

“Moreover, the suggestion that the OSP’s creation reflects an attempt to circumvent Article 88 tends to prejudge the very issue the court was required to determine. The reasoning, therefore, moves beyond interpretation and into conjecture. It attributes motive where the legal inquiry requires analysis. In doing so, it risks undermining the neutrality of the exercise and weakens what would otherwise be a serious constitutional argument,” he said.

Kwaku Azar added that the judge in his decision “did not just interpret the law” but rather “speculated about why it was made”, which should not be the case.

He further stated that the ruling of the court “blurs the critical distinction between facts and law in its timing analysis”, “understates the constitutional nature of the dispute”, and also used the wrong “legal tool” to arrive at its decision.

Court rules OSP lacks authority to prosecute cases

Read his full explanation below:

1. The court blurs the critical distinction between facts and law in its timing analysis:

The court’s conclusion on timeliness is intuitively appealing, but doctrinally problematic. The judge accepted the applicant’s argument that time began to run not from the filing of the charge sheet, but from the applicant’s awareness of the alleged illegality.

He reasoned that a person should not be deprived of the opportunity to challenge an unlawful act before becoming aware of it. At a general level, that instinct is sound. Courts are rightly reluctant to allow limitation rules to defeat claims where the underlying defect was genuinely hidden.

But the analysis in this case blurs a critical distinction: the difference between knowledge of facts and knowledge of law. In orthodox legal doctrine, time may be extended where a litigant lacks knowledge of material facts that could not reasonably have been discovered earlier. However, ignorance of the law, or a later appreciation of a legal argument, does not ordinarily delay the running of time.

That distinction matters here.

The applicant did not discover a new fact, such as a concealed document, a hidden authorisation, or a previously unavailable piece of evidence. The relevant facts were always publicly available: the existence of the OSP, the absence (allegedly) of an Executive Instrument, and the governing constitutional and statutory provisions.

What changed in December 2025 was not the factual landscape, but the applicant’s legal conclusion that those facts rendered the OSP’s prosecutions unlawful.

By treating awareness of alleged illegality as the trigger for time, the court effectively shifts the inquiry from knowledge of facts to knowledge of law. That is a significant doctrinal move.

If taken seriously, it risks undermining the certainty that limitation rules are designed to provide, since a litigant could always argue that the clock starts only when they come to appreciate the legal significance of known facts.

A more defensible approach would have been to ask whether any new or previously undiscoverable fact emerged to justify the delayed application, or to ground the decision in narrower doctrines such as continuing illegality. Instead, the court adopts a broader principle that is difficult to contain.

In simple terms, the judge is right that you should not be shut out of court because something was hidden from you. But here, nothing was hidden. What changed was not the facts, it was the argument.

2. The court may have understated the constitutional nature of the dispute:

Ironically, although the judge insisted this was not a constitutional interpretation matter, the substance of the ruling is deeply constitutional. He effectively decided:
• the meaning of Article 88(4),
• the limits of Parliament’s power to structure prosecutorial institutions,
• whether Act 959 can validly empower the OSP without further AG action,
• whether L.I. 2374 matters as part of that authorisation framework, and
• whether reading the Act robustly would amount to an indirect constitutional amendment.

Those are not routine housekeeping questions. They go to the design of the constitutional order.

This is precisely the type of situation contemplated in Ex parte Akosah, which provides the now-settled four-tier test for determining when a constitutional interpretation issue arises requiring referral to the Supreme Court.

Under that framework, the interpretation jurisdiction of the Supreme Court is triggered where:
(a) the words of a constitutional provision are imprecise, unclear, or ambiguous;
(b) rival meanings are placed by the parties on the provision;
(c) there is a conflict in the meaning and effect of two or more constitutional provisions; or
(d) there is a conflict in the operation of constitutional institutions, raising problems of enforcement and interpretation.

On any fair reading, this case satisfies multiple limbs of the Akosah test.

First, rival meanings were clearly placed on Article 88(4). The applicant argued for a narrow, express, case-by-case authorisation model, while the OSP advanced a broader, structural authorisation model grounded in statute and regulatory design. That squarely triggers limb (b).

Second, there is a direct institutional conflict. The case pits the AG’s constitutionally recognised prosecutorial authority against a statutorily created anti-corruption prosecutor designed to operate with a degree of independence. That is a textbook example of limb (d): a conflict in the operation of constitutional institutions raising problems of enforcement and interpretation.

Third, the court’s own reasoning demonstrates that this is not a case of plain meaning. The effort to reconcile Article 88(4) with Act 959 and determine whether a robust reading amounts to indirect constitutional amendment all point to complexity and ambiguity. That brings the matter within limb (a), if not also limb (c) in its broader structural sense.

There is an additional and telling point. The reliefs sought by the applicant themselves explicitly invited constitutional interpretation. In particular:
• Relief (b) sought “a declaration that, on a proper interpretation of Article 88(4) of the 1992 Constitution and section 4(2) of Act 959, the OSP may prosecute only subject to and upon authorisation by the Attorney-General”; and
• Relief (c) sought a declaration that, in the absence of such authorisation, the OSP’s exercise of prosecutorial power is unconstitutional, unlawful, null and void.

It is therefore difficult to maintain that no interpretation question arose when the court was directly asked to determine the “proper interpretation” of a constitutional provision and its interaction with a statute.

Further, without prejudice to this analysis, the court ought to have taken judicial notice of the broader constitutional context, including the existence of a pending Supreme Court challenge to the constitutionality of the OSP. That alone should have counselled caution.

Where the apex court is already seized with related constitutional questions, a trial court should be slow to issue sweeping determinations that effectively pre-empt or prejudge those issues.

In short, this is not a situation where the court is merely applying clear constitutional text to straightforward facts. It is one where competing interpretations, institutional tensions, and structural consequences are central.

So even if the High Court was formally entitled to begin the analysis, a strong argument exists that, applying the Akosah framework, the matter should have been referred to the Supreme Court for authoritative determination. The ultimate resolution of these issues belongs at the apex court.

If all this seems too convoluted, all GOGO is saying is the judge said, “This is straightforward.” But the parties themselves asked the court to interpret the Constitution, and the case raises exactly the kind of institutional conflict that only the Supreme Court is designed to settle.

The use of quo warranto is doctrinally strained and outcome-distorting:

The court’s reliance on quo warranto as the central remedy is one of the most vulnerable aspects of the judgment. Quo warranto asks a very specific question: Who gave you the legal authority to occupy this office or exercise this public franchise?

Traditionally, it is used to challenge whether a person is lawfully holding a public office. For example, whether someone was validly appointed as a DCE, a board member, or a public officer. It is concerned with title to office, not the correctness of how powers under that office are exercised.

But lawfully holding office is not the real issue in this case. No one seriously disputes that:
• the OSP was validly created by Act 959; and
• the Special Prosecutor lawfully occupies that office.

The real dispute is whether the OSP requires an additional step, namely express AG authorisation, before exercising prosecutorial power already conferred by statute.

That is not a question about whether the OSP is entitled to exist. It is a question about the scope and conditions of the powers it exercises.

In doctrinal terms, this is the difference between:
• a challenge to title to office (quo warranto), and
• a challenge to the legality of the exercise of power (ultra vires or judicial review).

Ex parte Hyde (the case at bar) clearly falls into the second category.

By recasting the issue as one of quo warranto, the court effectively asked the OSP to “prove its existence” as a lawful prosecutorial authority, rather than addressing the more precise question of whether its exercise of prosecutorial power required an additional formal step.

That move matters because the choice of remedy shapes the outcome. Once the court adopts a quo warranto lens, the logic becomes:
• no sufficient authority shown;
• therefore, no lawful basis to act;
• therefore, all actions taken are void.

That reasoning naturally leads to the sweeping consequences the court embraced, including the invalidation of ongoing prosecutions and past convictions.

But if the issue had been framed in its proper doctrinal category, namely as a question of whether the OSP’s prosecutorial power was properly conditioned or procedurally complete, the remedial landscape would look very different. The court could have:
• clarified the nature of the required authorisation (if any);
• required compliance going forward; or
• granted more tailored relief tied to specific proceedings.

Instead, the use of quo warranto transformed what might have been a correctable issue into a system-wide collapse of prosecutorial validity.

Closely related to this is the failure to grapple with the stabilising principle that acts performed by a public authority, even where defects later emerge, are not always automatically void, particularly where legal certainty and reliance interests are at stake. Interested readers could read upon the prospective overruling doctrine.

By declaring prior convictions void without engaging that concern, the court prioritises formal authorisation over institutional stability in a way that is difficult to justify.

In simple terms, the court used a legal tool designed to ask:
“Do you have the right to sit in this seat?” to answer a different question: “Are you using the powers of that seat in the right way?”

That mismatch not only weakens the doctrinal foundation of the decision but also helps explain why the remedy is so unusually sweeping.



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