The effectiveness of the Office of the Special Prosecutor is not the subject of this article. That remains a legitimate debate for another day. If government believes the OSP requires reform, it should state so openly and invite an honest national review.

The legal questions surrounding the OSP’s prosecutorial powers are currently before the Supreme Court of Ghana. The views expressed here are therefore personal commentary on governance and accountability, not statements of law.

The focus here is broader: the recurring use of legal interpretation to support executive preference rather than constrain executive power.

Law as Executive Preference

After years in the civic space advocating for stronger laws, accountability, and good governance, one lesson has become unmistakably clear: the governance of the state is too often determined not by what the law says, but by what the executive wants to do. When government decides to do something harmful, expedient, or politically convenient, the law suddenly becomes flexible. It bends, stretches, disappears, and then reappears in whatever form is needed to justify the conduct of the executive.

The written law may be clear, specific, and deliberate. Yet when it stands in the way of power, it is reinterpreted. In some cases, the executive acts first and only later secure a legal opinion to rationalize the conduct. That perverse theory usually arrives through the most convenient constitutional instrument available: the office of the Attorney-General. In essence, instead of power being restrained by law, law becomes a servant of power. Interpretation then turns into a gangster paradise of executive abuse.

The Attorney-General and the Weight of Executive Interest

The recent position of the Attorney-General on the prosecutorial powers of the OSP has reignited debate over the independence of Ghana’s legal institutions. Since its establishment in 2018, the OSP has investigated cases, initiated prosecutions, and appeared before the courts exercising powers granted under the Office of the Special Prosecutor Act. A contrary legal position has now emerged, that the OSP lacks prosecutorial authority independent of the Attorney-General.

For many citizens, this appears to be a dramatic constitutional revelation. But for those familiar with how state power often works, it is neither dramatic nor unusual. It is part of a long-standing pattern in which the legal opinion of the Attorney-General often reflects the weight of executive interest in the matter under consideration.

There have certainly been moments when Attorneys-General resisted political pressure or maintained principled legal objections. But when the executive interest is strong enough, resistance often gives way. The institutional design makes this unsurprising. The Attorney-General is expected to serve both as guardian of legality and as a member of the executive branch. When those duties collide, politics frequently prevails.

Sponsoring the OSP Bill Was a Delegation in Substance

The current controversy becomes even more striking when one recalls how the OSP came into existence. The office was not created in defiance of the Attorney-General. It was created through legislation sponsored by the Attorney-General’s own office and submitted to Parliament for approval. That fact is not incidental. It goes to the heart of the present debate.

When the Attorney-General sponsors legislation establishing a specialized anti-corruption prosecutor with authority to investigate and prosecute corruption, the office is doing more than presenting a draft bill. It is seeking parliamentary authorization for a new institutional mechanism through which prosecutorial powers in corruption matters would be exercised, an exercise broadly affirmed by the citizenry.

Whether one calls it delegation, statutory allocation, or functional transfer, the substance is the same. Parliament was asked to approve a model in which some prosecutorial authority traditionally exercised through the Attorney-General would be exercised through the OSP.

The moral contradiction is therefore obvious. If the Attorney-General’s office could support the creation of the OSP as a prosecutorial institution, why is the argument now about withdrawing those powers rather than affirming them? What legal principle prevents the Attorney-General from recognizing the delegated authority it once helped create?

The more credible answer is political, not legal: the executive does not want the OSP prosecuting corruption with sufficient independence, and the Attorney-General’s office becomes the vehicle through which that preference is translated into constitutional interpretation.

The Agyapa Precedent

This pattern has appeared before. In the case of Agyapa Royalties Limited, the then Attorney-General, Gloria Akuffo, described aspects of the transaction as unconscionable and contrary to Ghana’s interest. Those were serious legal and policy objections to a high-profile national transaction.

However, after raising those objections, legal pathways and structuring options were ultimately provided to facilitate the transaction’s movement through Parliament. The earlier resistance gave way to support mechanisms that allowed the deal to proceed.That episode remains one of the clearest examples of how legal resistance can evaporate when executive determination intensifies.

JOHL: Options Provided to Sustain the Transaction

A similar pattern emerged in the Jubilee Oil Holdings Limited transaction under Attorney-General Godfred Dame, involving the acquisition of oil interest held by Anadarko  through a Cayman Islands structure using petroleum-related revenues.

The Attorney-General initially objected on the basis that the proposed arrangement offended the Petroleum Revenue Management Act. That opinion mattered because it recognized the statutory safeguards Parliament had placed around petroleum revenues. However, within twenty-four hours, the legal position changed. More importantly, options and legal routes were provided through a revised opinion to support completion of the transaction.

That is the central point of the JOHL example. It is not merely that government proceeded. It is that the Attorney-General’s office moved from identifying a legal obstacle to identifying workable options that enabled the same transaction to proceed.

Tax Offsets: Legal Options for a Preferred Outcome

The same dynamic can be seen in the recent tax offset arrangements involving Tullow Oil and Jubilee partners under Attorney-General Dominic Ayine. Under such arrangements, taxes due to the state are offset against amounts owed by the energy sector for gas related liabilities. The issue is not simply commercial convenience. The Petroleum Revenue Management framework was specifically designed so that petroleum revenues would flow directly into the Petroleum Holding Fund and be distributed transparently across national priorities: budget support through ABFA, macroeconomic stabilization through the Stabilisation Fund, and long-term savings through the Heritage Fund. Offsets weaken that design by making inflows uncertain and bypassing the direct statutory route.

Once that legal sanction was granted, the precedent spread. Eni has advanced offset demands in gas negotiations, while West African Gas Pipeline Company is also demanding offsets tied to payments due Volta River Authority as a shareholder of the pipeline. What began as a selective accommodation is now shaping future negotiations. A perverse tax incentive is on the way to normalcy to undermine the role of Ghana Revenue Authority and entrench the inefficiencies that makes offsets necessary in the first place.  

Procurement and the Normalization of Abuse

The same pattern is visible in public procurement. Ghana once established a high standard for procurement reform, competition, and transparency. Yet over time, compliance weakened as exemptions, sole sourcing, and extraordinary procedures became increasingly common.

Some state agencies relied on waivers or legal cover from the Attorney-General’s office to justify noncompliance with the procurement law. Instead of the law serving as the controlling framework, administrative convenience became the governing principle. Once agencies believe that statutory obligations can be neutralized through executive interpretation, the deterrent effect of procurement law collapses.

The seriousness of the drift became evident when the current Finance Minister had to write to Electricity Company of Ghana to re-establish compliance with procurement law and restore proper procedures.

The Structural Defect

The problem is larger than any individual Attorney-General or administration. It is rooted in structure. The Attorney-General is both the government’s chief legal adviser and a political actor within the executive. When those roles conflict, institutional independence is strained.

That is precisely why bodies such as the OSP were necessary in the first place. They were meant to create some distance between corruption prosecutions and executive preference. If every prosecution can be expanded, narrowed, delayed, or withdrawn through political influence exercised via legal interpretation, then the original reform purpose is defeated.

Law Must Constrain Power

A constitutional democracy cannot survive if the law or rules change meaning whenever power requires it. Law must constrain government, not trail behind it offering justifications after decisions have already been made.

In theory, the courts are the proper forum for testing executive interpretations of law and for checking abuse of power. But in practice, that safeguard is often weakened for two reasons.

First, many of the most consequential legal interpretations never reach public scrutiny at all. They are made quietly at the desk of the Attorney-General in the form of opinions on contracts, waivers, procurement decisions, revenue structures, regulatory exemptions, and state transactions. Citizens often do not know these opinions exist, let alone have access to challenge them. By the time the public becomes aware, the transaction may already be completed and the consequences entrenched.

Second, public confidence in judicial correction has in recent years been strained by perceptions that the courts sometimes align with executive preference, whether through delay, procedural outcomes, or judgments that generate widespread public revulsion. Where cases are delayed until the practical issue becomes irrelevant, accountability is defeated even without a formal ruling against the challenger.

Many observers point to the case involving Daniel Domelevo as an example where the timing of judicial processes diminished the practical value of the dispute. In other instances, controversial judgments have deepened suspicion that the judiciary is not always an effective counterweight to executive power.

Whether those perceptions are fair in every case is a separate debate. The larger concern is that once citizens lose confidence that courts can timely and impartially restrain power, the constitutional promise of checks and balances begins to weaken.