Legal academic and activist, Stephen Kwaku Asare, has strongly rejected claims that Ghana’s Constitution bars Parliament from establishing independent prosecutorial institutions.
In a Facebook post, he challenged the interpretation that the Constitution mandates a centralised prosecutorial system controlled solely by the Attorney-General (AG), describing such a position as inconsistent with legal history and established doctrine.
“We are told that the Constitution should be read as barring Parliament from creating independent prosecutorial spaces… that the Attorney-General must be treated as an imperial figure whose hands must be present in all criminal proceedings,” he wrote.
“That proposition collapses under the weight of both history and doctrine. It is so at variance with our common law and, frankly, the common law across the Commonwealth that, with galactic respect, I hereby reject it.”
He explained that the common law tradition has long supported the sharing of prosecutorial authority, noting that private prosecutions predate the modern state’s dominant role in criminal justice.
“Our common law has always accommodated the diffusion of prosecutorial authority. Private prosecutions were a foundational feature of the criminal process long before the modern state assumed a dominant role,” he stated.
“Even after the emergence of public prosecution, the law did not insist on a single, centralised, and personally controlled prosecutorial monopoly. Rather, it evolved toward a system in which authority is exercised by multiple actors, subject to legal structure and oversight.”
Citing Section 56 of the Criminal and Other Offences (Procedure) Act, he noted that the Attorney-General is empowered to appoint public prosecutors across different categories, a power historically exercised through executive instruments.
“Acting under that provision, successive AGs have, by executive instrument, designated entire categories of public officers as prosecutors,” he said.
He referenced the Appointment of Public Prosecutors Instrument, 2004 (E.I. 5), which designates lawyers within state institutions such as the Internal Revenue Service and Customs as prosecutors within their respective mandates.
“These appointments reflect a working system in which prosecutorial authority is exercised within institutional mandates, not by the AG personally appearing or directing every case,” he explained.
Prof. Asare also rejected claims that executive instruments are the only constitutionally valid method of authorising prosecutors.
“The Constitution does not prescribe the mechanism of authorisation. It does not require that every prosecutorial actor be individually appointed by executive instrument. What it requires is that such authority be exercised ‘in accordance with law,’” he stated.
He argued that this constitutional provision allows Parliament to structure prosecutorial authority through legislation, including the creation of specialised institutions.
Touching on broader legal practice, he cited provisions of the National Pensions Act to illustrate how Parliament has historically allowed institutional actors to exercise enforcement powers.
“These arrangements have never been understood as displacing the AG’s constitutional responsibility… rather, they reflect a distinction between constitutional responsibility and operational authority,” he noted.
“The AG’s powers to appoint and to give directions are therefore permissive and facilitative. They enable the diffusion of authority; they do not confine it. They are neither exhaustive nor exclusive.”
He further defended the legal basis of the Office of the Special Prosecutor, arguing that its establishment is consistent with constitutional principles.
“The Office of the Special Prosecutor Act fits squarely within that framework. It does not displace the AG; it channels prosecutorial authority through a statutory scheme tailored to corruption-related offences,” he said.
Prof. Asare concluded by cautioning against what he described as a distortion of constitutional interpretation.
“The Constitution did not create an imperial AG. Nor did it chain us to a prosecutorial system incapable of confronting executive looting,” he stated.
“It created a system… and that system has always allowed prosecutorial and enforcement power to be structured, shared, and specialised. The attempt to rewrite it into a one-man empire is not interpretation—it is distortion.”
He signed off his post with a brief remark in Akan:
“Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants. Da Yie!”
