In the previous part, we concluded that the court's analysis of timing, the Ex Parte Akosah doctrine, and its application of the Quo Warranto relief were pregnant with errors.
In this part, GOGO analyzes the core argument of the court. It first identifies a fundamental flaw in the court’s reasoning and then shows how that flawed premise leads the court to rely on the wrong legal framework.
4) The biggest weakness: the court assumes the very point in dispute
The central difficulty with the ruling is not simply its conclusion, but how it gets there. The court’s reasoning proceeds as though one key premise were already settled: that the OSP requires a separate authorization from the AG, in the form of an Executive Instrument.
But that is precisely the issue in dispute.
The judgment moves from an observation about administrative practice to a conclusion about legal necessity. Because other agencies often receive prosecutorial authority through Executive Instruments, the court treats that pathway as the required model for the OSP. Yet that conclusion does not follow unless one first establishes that the OSP falls within that same delegation framework.
That prior step is never seriously undertaken.
Because the Court assumes a form of delegation, it never contemplates the deeper question of whether the legal architecture already provides the required authorization.
Article 88(4) permits prosecutions by persons authorized “in accordance with law.” Parliament, acting under that provision, enacted Act 959 to create a specialized anti-corruption prosecutor with investigative and prosecutorial functions.
That statute is not silent; it is complemented by a detailed regulatory framework in L.I. 2374, made by the AG under section 78 of the Act. Regulation 11 expressly provides that the Special Prosecutor or an authorized officer shall decide whether or not to prosecute.
In other words, the very “authorization” the court demands may already be embedded in the statutory and regulatory scheme.
The judgment largely bypasses this possibility. It does not squarely confront whether Act 959, read together with L.I. 2374, constitutes the “law” contemplated by Article 88(4). Instead, it assumes that authorization must take the familiar form of an Executive Instrument and evaluates the OSP against that assumption.
That is a classic question-begging move. The court assumes that prosecutorial authority must be conferred through Executive Instrument and then treats the absence of such an instrument as dispositive, without first addressing whether the statutory framework itself supplies that authority.
In doing so, it also relies on a weak analogy, treating the OSP as if it were indistinguishable from ordinary agencies that apply for delegated prosecutorial powers.
Even more strikingly, the judgment does not engage L.I. 2374 at all, despite the fact that it is the AG’s own regulatory instrument made under Act 959 and expressly addresses prosecutorial decision-making within the Office.
The absence of any discussion of that framework underscores the court’s failure to confront whether authorization already exists “in accordance with law.” Had the court undertaken that inquiry, it would have had to reckon with Regulation 11, which vests prosecutorial decision-making in the Special Prosecutor or an authorized officer.
Section 56 of the Criminal Procedures Act, on which the court relies (see below), contemplates delegation by Executive Instrument to agents of the AG. Act 959 reflects a different model: statutory authorization, supplemented by regulations promulgated by the Attorney-General under the Act.
In that context, L.I. 2374 does not operate as a mere delegation device, but as part of the legal framework through which prosecutorial authority is structured and exercised within the Office. Confusing the two collapses an instrument designed to implement, detail, and operationalize primary legislation into a single-purpose administrative delegation tool.
That is precisely the court’s error. And it is fatal!
In everyday terms, the court treats the OSP like a guest who still needs a formal invitation to enter. But a more persuasive reading is that Parliament has already built the room, the AG has helped furnish it, and the regulations explain how it is to operate.
The real question is not whether a separate invitation was issued, but whether the legal framework already entitles the OSP to be there.
Having identified the logical defect in the court’s reasoning, GOGO now turns to the doctrinal framework the court used to sustain that reasoning.
5) The judgment then compounds that error by relying on the wrong legal framework
The judgment reinforces its conclusion by relying heavily on section 56 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), and on the established practice of delegating prosecutorial authority through Executive Instruments.
As a description of administrative practice, this is largely accurate. Public institutions often apply to the AG for authority to prosecute, which is then granted and formalized through an Executive Instrument under section 56.
But that is not the situation here, and treating it as such introduces a fundamental analytical error.
Section 56 operates within a delegation model. It governs how the AG appoints public prosecutors who act as his agents, either generally or for specific matters. It presupposes that authority flows from the AG to individuals or institutions upon request, and that those actors remain extensions of his office.
The text itself makes this clear. Section 56 empowers the AG to “appoint… public officers to be public prosecutors” by Executive Instrument. The AG "may give express directions to the public prosecutor."
That language describes a model of delegation to individuals acting as agents of the AG; it does not contemplate the creation of a statutory prosecutorial office with an independent mandate defined by Parliament.
The OSP does not fit that model.
It is not an applicant seeking permission to prosecute. It is a statutory office created by Parliament pursuant to Article 88(4), with a defined mandate to investigate and prosecute corruption and corruption-related offences.
Its institutional design reflects a deliberate choice to establish a specialized prosecutor operating within the constitutional framework, but not reducible to ad hoc appointments under the AG’s administrative machinery under section 56.
The AG can delegate prosecutorial power; he cannot, by executive instrument, create a prosecutorial institution. That is the work of Parliament.
Section 56 speaks to delegation within the AG’s administrative structure. Act 959 speaks to institutional design under Article 88(4), which permits prosecutions by persons authorized “in accordance with law.”
Conflating the two collapses the distinction between agents of the AG and a statutory prosecutor created by law.
Section 56 itself reinforces this distinction. It is expressly made “subject to article 88 of the Constitution.” It cannot exhaust the forms that prosecutorial authority may take under that Article.
Article 88(4) contemplates a broader category: persons authorized “in accordance with law.” Act 959, read together with its implementing regulations, is precisely such a law.
When Parliament acts under Article 88(4) to authorize prosecutions “in accordance with law,” it does not displace the AG’s constitutional role. It structures the manner in which that authority is exercised by creating an additional, legally defined pathway for prosecution. Properly understood, such legislation operates within the constitutional scheme, not against it.
This is especially so where the statutory design responds to a compelling institutional concern, such as the risk of conflict of interest in the investigation and prosecution of corruption.
In that context, the creation of a specialized prosecutor is not a derogation from the AG’s role, but a constitutionally permitted mechanism to ensure that prosecutorial power is exercised effectively and credibly.
To treat section 56 as controlling is therefore to collapse two distinct legal arrangements into one. It converts a mechanism of administrative convenience into a rigid constitutional requirement.
That reading also produces implausible consequences. If section 56 were the exclusive pathway for conferring prosecutorial authority, there would have been no need for Parliament to enact Act 959 at all.
The AG could simply appoint “special prosecutors” by Executive Instrument whenever needed. The existence of the OSP Act signals a different legislative intention: to create a structured, enduring institution rather than rely on episodic delegation.
Even within Act 30, the broader language of section 58, which allows prosecutions to be instituted “by or on behalf of the Attorney-General,” is capable of accommodating institutional arrangements grounded in statute.
Properly understood, section 56 tells us how the AG may delegate prosecutorial authority within his administrative structure. It does not answer the separate and prior question whether Parliament may establish a prosecutorial office whose authority is defined by statute within the meaning of Article 88(4).
The court’s reliance on section 56 therefore rests on a category mistake. It applies a rule designed for delegated agents to a statutory institution created on an entirely different footing.
In simple terms, section 56 is a rule about how a manager assigns tasks to assistants who ask for work. The OSP is not such an assistant. It is an office the system itself created, with its own mandate. The relevant question is not whether the manager issued a memo under that rule, but whether the office was lawfully established and empowered to perform its functions.
Next -- part 3.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!