Chairman of the Constitutional Review Committee, Professor Henry Kwasi Prempeh, has called for the Supreme Court to allow the Office of the Special Prosecutor (OSP) to personally defend a lawsuit challenging its powers to prosecute without the Attorney General’s authorisation.
According to him, allowing the Attorney General in court in the position of nominal defendant to advance a position in agreement with the plaintiff’s can be considered a mockery of the country’s adversarial system of justice.
Professor Prempeh’s statement comes on the back of the Attorney General (AG) response to a constitutional writ at the Supreme Court that seeks to strike out portions of the Office of the Special Prosecutor (OSP) Act, 2017 (Act 959) that grant its independent prosecutorial authority.
In a Facebook post, he made a case for the OSP and stated categorically that the Office must defend this suit, arguing that “the law is not an ass.”
“So the Supreme Court of Ghana will not allow the “real party in interest,” the OSP in this case, to defend against a lawsuit challenging the constitutionalitly of its statutory establishment and existence, but will allow the “nominal defendant”, the AG, whose position and interest in the suit is not adverse to that of the plaintiff, to file a purported defense that agrees with the position of the plaintiff.
“The Court is essentially privileging ‘form over substance’ and encouraging collusive suits or ‘sham cases,’ where, as in this case, the AG and the private plaintiff are, in both law and fact, on the same side of the matter. This is not how litigation or adjudication in the common law tradition is supposed to work: the two sides to the suit must have truly adverse interests and positions and, thus, the incentive to plead and advance their rival legal positions with genuine zealousness, enabling the Court, as impartial referee, to have the best possible legal arguments from both sides to inform and determine its final decision in the case,” he posted.
Professor Prempeh contends that “Refusing to allow the OSP to defend this suit by Plaintiff Noah E. Tetteh and, instead, allowing the AG to come to Court in the person of Deputy AG, Justice Sai, in the position of nominal defendant, to advance a position in agreement with the Plaintiff’s makes a mockery of our adversarial system of justice. Let the OSP defend this suit. The law is not an ass. Or maybe it is in.”
