INTRODUCTION
The judgement of the Supreme Court in Adamtey v Attorney-General, Writ No. J1/3/2026, Supreme Court, 29 July 2026 (unreported) was made available to the public on 7 August 2026. I received a copy of the judgement on the evening of 8 August 2026. I have read the judgement several times. The Supreme Court decision is consistent with the views I have expressed on the constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) and the pursuant statutory instruments thereto since the Plaintiff and the Defendant, the Attorney-General ganged up to dissolve the OSP as being inconsistent with Articles 88 (3) and (4) and 296 of the Constitution and accordingly void.

The availability of the Supreme Court judgment in Adamtey v Attorney-General lays to rest the subtle impression created in the public mind in the media that the OSP is subject to the unbridled control and direction of the Attorney-General in the initiation and prosecution of corruption and corruption-related offences.

On 29 July 2026 I published a discourse in the media entitled: “Let’s wait for the certified judgement of the Supreme Court to determine what it really decided on the OSP” in which I urged the public to stay calm and await the availability of the judgement in order to make an informed opinion on what the Court decided, instead of relying on hearsay on what the Court decided: I stated that:

“Unfortunately, the judgment of the Supreme Court is unavailable to enable an informed examination and analysis to determine objectively whether the Supreme Court in fact upheld the constitutionality of the OSP as an independent prosecutorial agency which is what the Office of the Special Prosecutor Act, 2017 (Act 959) set out to establish or the Supreme Court has reduced the OSP to another investigation and prosecutorial agency under the discretionary control and direction of the Government through an Attorney-General appointed and dismissible at the whims of the President.”

I have accordingly read several times, examined and analysed the judgement of the Supreme Court to determine objectively whether the Supreme Court in fact upheld the constitutionality of the OSP as an independent prosecutorial agency which is what the Office of the Special Prosecutor Act, 2017 (Act 959) set out to establish or the Supreme Court reduced the OSP to another investigation and prosecutorial agency under the discretionary control and direction of the Government through an Attorney-General appointed and dismissible at the whims of the President.

This was what I promised to do in my discourse published in the media aforementioned on 29 July 2026. I had raised the following issues in my publication of 29 July 2026:

“The difference between the investigatory and prosecutorial powers of the OSP under Act 959, and those of the Ghana Police Service, the Economic and Organized Crime Office, and other such agencies was the fact that the Attorney-General could not interfere with and discontinue investigations and prosecutions by the OSP.

Section 80 of Act 959 dealing with consequential amendments amended subsection 1 of the Economic and Organized Crime Office Act, 2010 (Act 804) ‘in section 74 by the deletion of the words “corruption and bribery” in paragraph (a) of the definition of serious offence’, and also in subsection 2, ‘amended the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) ‘in (a) section 54 and 55 by inserting after “Attorney-General” of “or Special Prosecutor” wherever it appears; and (b) section 54 by the insertion of a new subsection (2A) as follows:

“(2A) Where the Special Prosecutor enters a nolle prosequi under subsection (1), the Special Prosecutor shall state reasons for doing so.”’

Parliament had the authority to amend sections 74 of Act 804 and sections 54 and 55 of Act 30 as pieces of legislation it has enacted just as Parliament has the power through legislation to legislate on the existing law and the common law referred to under Article 11 of the Constitution. The powers of the Attorney-General under sections 54 and 55 of Act 30 are codifications of the common law prosecutorial discretion of the Attorney-General which are not subjected to review by the courts. Parliament, however, retained the authority to amend or modify them through legislation as it did under section 80 of Act 959.

Should the certified copy of the judgment of the Supreme Court in Adamtey v Attorney-General when publicly available state that section 80(2) of Act 959 is unconstitutional, it will mean that portions of Act 959 governing the independent powers of the Special Prosecutor are unconstitutional. It will then follow that the Court decided that portions of the prosecutorial powers of the Special Prosecutor derived from codification of the common law are unconstitutional and thereby showing the media reports stating that the Court unanimously affirmed “the constitutionality of the Office of the Special Prosecutor (OSP)” to be half truths. The unanimous judgment would have, in fact, reduced the OSP to the level of any other investigation and prosecutorial agency under the complete direction and control of the President. The enactment of Act 959 by Parliament to establish the OSP as another such agency would have been a waste of time, a needless charge on the public purse, a redundancy, and a violation of Article 106 of the Constitution for the absence of any defects in the existing law it was intended to remedy.

THE EXAMINATION AND ANALYSIS OF THE JUDGEMENT

A careful reading, examination, and analysis of the Supreme Court judgement in Adamtey v Attorney-General leads to the conclusion that the Court upheld the Constitutionality of the Office of the Special Prosecutor Act, 2017 (Act 959) established bi-partisanly by Parliament and assented to by President Akufo-Addo on 2 January 2018 in its entirety. The Supreme Court refused to and did not reduce the OSP to another investigatory and prosecutorial

agency under the absolute discretionary control and direction of the Government through an Attorney-General appointed and dismissible at the whims of the President.

The judgement signed by six of the seven justices led by the Chief Justice used language which the less careful reader may not notice the limitations the Court placed on the power of the Attorney-General to enter nolle prosequi in corruption and corruption-related offences prosecutions. The nature of the convoluted language and reasoning may lead a casual reader to misrepresent the words used as giving the Attorney-General unbridled common law control over the investigatory and prosecutorial powers of the OSP when the Court decided that:

“That the Attorney-General retains, a power inherent in Article 88(3), the power to enter a nolle prosequi in any prosecution brought by the Office of the Special Prosecutor and thereby to terminate it, and that the exercise of that power is subject to Article 296(a) and (b) of the Constitution.”

The Supreme Court left intact the powers of the Special Prosecutor (SP) to enter nolle prosequi under section 80 of Act 959 and described the amendment giving the SP those powers as follows: “The amendment is additive. It is not substitutive… ” (See paragraph 105 of the judgement).

The Supreme Court then decided to tighten the nose around the neck of the powers of the Attorney-Generals power when it stated in paragraph 108 that:

“108). The Attorney-General’s control is otherwise real, but it is not unaccountable. As we hold at issue 5, its exercise is government by Article 296(a) and (b). He must act fairly and candidly He accordingly retains his constitutional responsibility, and he answers for the manner in which he discharges it. The OSP, for his part, holds an authorisation that stands until it is lawfully revoked, and that may not be withdrawn without reason given. That is the balance struct by Article 88 and kept by Act 959.”

The painstaking reader and analyst of the Court’s judgement will conclude as the Court intended that the Court denuded the nolle prosequi power it gave to the Attorney-General under its interpretation of Act 959 vis-a-vis Article 88 of the Constitution with the right hand, by taking it back with the left hand in paragraph 122 when it subjected the Attorney-General’s power for the first time to supervision by the Courts. The Court delivered itself as follows:

“122) Third, an Attorney-General who terminates a prosecution brought by the OSP answers for the termination not only to this Court, and not only to the standards which Article 2969a) and (b) impose, but also to Parliament and, ultimately, to the people. It is committed to the Attorney-General not for his own convenience, nor for the convenience of any Government, but for the ordered administration of the Criminal Law of the Republic. This Court expects that it will not be exercised lightly in a prosecution of corruption, and where it is exercised the reasons will withstand the scrutiny both of the courts and the public.”

The Attorney-General’s power to enter nolle prosequi under the common law and Section 55 of the Criminal and Other Offences Act, 1960 (Act 30) which codified the common law was not hitherto subject to review by the courts. That explains why this government could abuse that power in respect of the pending trials of members of its political party and associates and appoint them to extremely sensitive public offices in government in 2025 without any attempt by citizens to challenge the abuse of power in the Courts. Cases being prosecuted by the OSP have now been excepted from this unruly abuse of discretion by an overtly politically partisan Attorneys-General such as the one under this government.

The power of the Special Prosecutor (SP) to enter nolle prosequi with the permission of the court provided for under section 80 of Act 959 was upheld by the Supreme Court which is confirmation that the OSP has an independence in the exercise of its prosecutorial powers that other law enforcement agencies with authority from the Attorney-General to prosecute do not possess under the laws of Ghana. This was the type of independence that Parliament set out to give to the OSP under Act 959 which has been upheld by the Supreme Court as being constitutional.

The Judgement of the Supreme Court, therefore, maintained the difference between the investigatory and prosecutorial powers of the OSP under Act 959, and those of the Ghana Police Service, the Economic and Organized Crime Office, and such other agencies anchored on the fact that the Attorney-General cannot interfere with prosecutions by the OSP without being answerable to any court or authority under the Constitution.

One who has attained an artistry status in the art of reading, examination and content analysis of text, literature, socio-politico-economic, cultural, and other forms of symbolically interacting with qualitative materials or data would not have failed to notice that the investigatory powers of the OSP which are derived from the executive authority of the President have not been subjected to the powers of the Attorney-General by the judgement of the Supreme Court. The President may initiate investigations without reference to the Attorney-General under the executive authority and Parliament could also assign that responsibility as it did to the OSP under Act 959 in corruption and corruption-related offences. The implications for the independent investigatory powers of the OSP in view of the Supreme Court’s judgment may unfold with time.

THE IMPACT OF THE HISTORY OF THE CASE ON THE OUTCOME & THE FUTURE

The history of the pleadings in the case of Adamtey v Attorney-General shows the bias of the Attorney-General in subjectively agreeing in substance with the Writ and Statement of Claim and arguments of the Plaintiff intended to declare Act 959 as unconstitutional and consequently, null, void and without effect whatsoever.

The Attorney-General while he was a Member of Parliament attempted to declare sections 13(1) and (3) and 16(2) of Act 959 on the appointment of the Special Prosecutor and his deputy as unconstitutional but failed miserably in the Supreme Court in Ayine v Attorney-General and Martin Alamisi Burns Kaiser Amidu in which I filed a defence with a memorandum of issues before my name was struck off the suit at the hearing. (See Ayine v Attorney-General, Suit No. J/05/2018, Supreme Court, 13 May 2020). The intended effect was to render Act 959 stillborn and this continues to reflect in his attitude in the Adamtey case.

The bad guy, and good guy conflict resolution strategy of negotiations were adopted by the Mahama government in respect of the survival or death of the OSP as an anti-corruption institution since the government assumed office on 7 January 2025. The public is orchestrated to perceive that the bad guys in Parliament wanted the institution to be abolished with a Private Members Bill to repeal Act 959. The good guy, President Mahama, then makes statements in the public domain against the conduct of the Parliamentarians from his political party which results in their withdrawal of the Bill from Parliament.

The Plaintiff, who has been alleged in the media to have been a junior in the Deputy-Attorney-General’s chambers before his appointment then files the action that became Adamtey v Attorney-General. The Attorney-General endorsed in substance the claims of the Plaintiff. The good guy, President Mahama’s position, then appears to prevail in the Supreme Court with his hand chosen Chief Justice and some recently appointed Supreme Court justices amongst the panel to make it possible for the minimum majority of four for a binding decision.

I have raised the bad guy and good guy roles in conflict resolution and negotiation to underscore the fact that this controversy could have been orchestrated as a psychological operation of the government to subjugate the OSP as an institution no matter the outcome of the Supreme Court judgement with the President emerging as the saviour and master. It also underscores why the President of a country must not be running commentaries on matters pending before independent public institutions such as the other two arms of government made up of Parliament and the Judiciary in order to prevent whatever decisions these arms of government arrive at from being perceived to have been tainted with executive overreach by the powerful President who wields the power of the purse over them.

Only the half tutored will be ignorant of the fact that he who considers and decides on a set of facts could equally have made the opposite decision were he sufficiently induced by extraneous tacit circumstances to do so. The “what the judge eats for breakfast” syndrome in jurisprudence. The late President of the Ghana Bar Association (GBA) (1989-92), Anthony K. Mmieh, and his executives reminded me of the foregoing when they confronted me as the Deputy Attorney-General in my office on my persistence in nominating a particular judge from the circuit court to the High Court. I will tell the story on that encounter about the Scale of Justice in another discourse. The abuse of the judicial process.

I suspect that the Attorney-General who has no security of tenure and the President who could dismiss him at whim are up to some machinations against the OSP that is why the Attorney-General is still at post after defying the perceived subtle instructions of the President, issued to all the arms of government to fall in line with his publicly intimated position on the OSP. Let us hope that the fate of the OSP is not awaiting another reset reform agenda that will abolish the institution and replace it with one that would serve the interest of the government when it is out of office.

The reader who doubts my intuition should watch how the supermajority is being abused in Parliament under the President’s guidance as though we voted for a one-party State in violation of Article 3 of the Constitution. The long game the Mahama government is playing with the constitutionality of the OSP and its reset agenda resembles the butcher who fears the knife syndrome preventive mentality. Time will tell!

CONTINUING TENSIONS BETWEEN THE OSP & THE AG

Notwithstanding the clarity brought about by the judgment of the Supreme Court, Samuel Adjei Darko of the OSP, who holds no letter of appointment from any President of Ghana as demanded by the Constitution to hold himself out as a public officer, has exacerbated the tensions between the Office of the Attorney-General (OAG) and the OSP by accusing the former of refusing to collaborate with the OSP. The riposte coming from the Deputy Attorney-General who would mature to 15 years as a lawyer on 30 September 2026 asserts the opposite and falsely claims control over the OSP like any other law enforcement agency despite losing that argument in the Supreme Court.

Conflict, and Conflict Resolution studies as interdisciplinary fields of study of mismatches in human social interactions and conflict resolution teaches that unless and until the parties in conflict together with their supporting constituencies concentrate on the issues in conflict as distinct from the persons in conflict, there would be no deescalation of conflict to the point of reaching common ground for any lasting conflict resolution. The irreconcilable tensions between the OSP and the Attorney-General which was the subject of my published discourse on 17 April 2026, therefore continues as of 31 August 2026 and beyond.

The overt exhibition of tensions and power differentials between the OAG and the OSP never happened under my watch as the founding Special Prosecutor because of the maturity and discipline of the Attorney-General and myself in coming together to achieve the objects set forth in Act 959. President Akufo-Addo, a lawyer himself, supported us in that endeavour publicly without playing the good guy with the Attorney-General as the bad guy. All three of us finished law school in the epoch of honour and integrity at the Bar in the 1970s (1975 & 1978 for Nana and me) and the early 1980s (1982) in the case of the Attorney-General.

The educational and work histories of Dominic Ayine, the Attorney-General and Kissi Agyebeng, the Special Prosecutor, locates them as master and subordinate from the University of Ghana to the law firm of Ayine and Felli (2009-2013) before they found themselves working for the Republic when the former was appointed as Ghana’s Attorney-General. Kissi Agyebeng’s practice of the law appears to have been informed by what Dominic Ayine taught him at the law firm of Ayine and Felli including the incompetence and unethical professional behaviour which has tainted the integrity of the OSP.

I have consistently said, time without number, that the problem with the OSP is not located in Act 959 but in the conduct of Kissi Agyebeng as its Special Prosecutor and the transactional business mentality he brought to the OSP from Ayine and Felli and other places.

President Mahama has benefitted form both Kissi Agyebeng and Dominic Ayine’s unethical and unprofessional conduct and cannot dispense with either of them no matter what evidence is put before him. The tension shall, therefore, continue despite the judgement of the supreme Court in Adamtey v Attorney-General as we saw on 30 August 2026 and 31 August 2026 from spokesmen from the two institutions.

I had prophesised this development on 17 April 2026 when I published a discourse on the Constitutionality of Act 959 and concluded that: “At the end of the day the Special Prosecutor and the Attorney-General cannot co-exist and cooperate in the fight against corruption.”

CONCLUSIONS

The Supreme Court in Adamtey v Attorney-General threw out the action and defence put up by the Plaintiff and the Attorney-General and upheld the constitutionality of Office of the Special Prosecutor Act, 2017 (Act 959) without any qualifications or subtractions whatsoever. The ratio decidendi of the judgment stated as the DISPOSITIONS of the Court on this matter clearly and unambiguously upheld the consistency of sections 3, 4, and 80 (2) together with the pursuant legislative instruments with Article 88 (3) and (4) of the Constitution. I quote hereunder the relevant dispositions of the Court for the sake of the doubting readers and the implacable sycophants. The Court decided that:

“DISPOSITION
123) For the reasons given, we hold and declare:

1. That on a true and proper interpretation of Article 1(2), 88, 93(2) and 296 of the Constitution, responsibility for the initiation and conduct of all prosecutions of criminal offence is vested exclusively in the Attorney-General, and no person may exercise the prosecutorial functions of the Republic independently of the Attorney-General or in parallel with him. Any person other than the Attorney-General who prosecutes in the name of the Republic does so only as a person authorised by him in accordance with any law, under his continuing responsibility, and subject to his power to terminate the prosecution.
2. That section 3 and 4 of the Office of the Special Prosecutor Act, 2017 (Act 959) are consistent with the Constitution and are valid.
3. That the Office of the Special Prosecutor holds an authorisation given by the Attorney-General in accordance with law within the meaning of Article 88(4) of the Constitution, to initiate and conduct prosecution of corruption and corruption-related offences, and that authorisation subsists until amended or revoked in the manner in which it was given.
4. That, in respect of prosecutions, the Office of the Special Prosecutor is not independent of the Attorney-General, not autonomous of him, not insulated from him and not outside his supervision, and does not exercise prosecutorial authority in parallel with him.
5. That the Attorney-General retains, a power inherent in Article 88(3), the power to enter a nolle prosequi in any prosecution brought by the Office of the Special Prosecutor and thereby to terminate it, and that the exercise of that power is subject to Article 296(a) and (b) of the Constitution. ”

This discourse has demonstrated from the facts and content analysis of the judgement in Adamtey v Attorney-General that the Special Prosecutor retains an independence in the discharge of the functions of the OSP as enshrined in section 14(2) of Act 959 which gives him “full authority and control over the investigation, initiation and conduct of proceedings under subsection 1 of section 3 of the Act” dealing with the functions of the OSP. The OSP was, therefore, not subordinated to the OAG, in the same manner as the Ghana Police Service, the Economic and Organized Crime Office (EOCO) and other law enforcement agencies are in the exercise of the OSP’s prosecutorial powers, as the media conveyed on 29 July 2026 when it reported on the judgement of the Supreme Court of that day.