Deputy Attorney General Justice Srem-Sai has stated that Ghana cannot establish an independent prosecutorial authority without first amending Article 88 of the Constitution.

Speaking on The Law on JoyNews on Sunday, April 19, discussing the 'Quo warranto OSP', he said, “I do not know any lawyer who believes that you could create an independent prosecutorial authority without amending Article 88 of the Constitution.”

According to him, lawyers across the board, including those who have served or are currently serving in the Office of the Special Prosecutor, share the same view.

“Every lawyer that I’ve spoken with and that I’ve heard hold one position, and this includes even the persons who have occupied and are still occupying the office of the special prosecutor,” he said.

“They’ve all held one position, and the position is simple: to be able to create an independent prosecutorial authority in Ghana, you need to amend Article 88.”

He said that he agrees fully with this position and cannot argue otherwise in any professional setting.

“I am not different from these legal brains. I agree with them that the only way to do what we seek to do is to amend Article 88,” he said.

“I cannot stand anywhere, either before a court of law, give an opinion to the government or a private person, or publish any article in any academic journal, and say that you can use legislation to amend a provision of the Constitution. I can’t do that.”

He explained that the Constitution itself clearly sets out the process for amendments, and that process must be followed.

“There is a way that you can amend the Constitution, and that is prescribed by law. It’s in the Constitution. It’s a step-by-step procedure,” he said.

The Deputy Attorney General added that ongoing constitutional review efforts over the years reflect a shared understanding that changes to the Constitution must follow laid-down procedures.

“This whole idea of Constitution Review Committee, and Constitution Review Implementation Committee, what we have been doing from 2010, is because we all agree and understand that the only way you could amend the Constitution is to go by the process specified,” he explained.

He further pointed to past rulings by the Supreme Court of Ghana, which have consistently rejected attempts by Parliament to alter constitutional provisions without following proper amendment procedures.

“There have been several cases where Parliament sought to make changes to things that were in the Constitution, and the Supreme Court has been emphatic that you cannot do so without using the special procedures for amendment,” he said.

He also addressed the legal limits of the Special Prosecutor Act, explaining that it is an ordinary law and does not override the Constitution.

“This legislation, which is the Special Prosecutor’s Act, is an ordinary legislation passed under Article 106, not under the Constitution amendment procedures,” he said.

“So it is difficult for me to accept the view that the Act has changed the provision of the Constitution.”

He said that the wording of the Constitution makes the situation clear.

“The provision that we have been standing on says ‘subject to’. Subject to means that whatever is happening here does not change what is in the Constitution,” he explained.

“So the judge’s conclusion is correct, and I don’t know how else anyone could have concluded, considering that the Act is not an amendment of the Constitution.”

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Deputy AG: Must Amend Article 88 to Create Prosecution Office

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