OSP independence requires constitutional amendment-Srem-Sai
According to him, lawyers who have examined the issue, including some who have served in or are still connected to the Office of the Special Prosecutor, generally accept one central point: if the country wants an independent prosecutorial authority, the Constitution itself must be changed.
Deputy Attorney General Justice Srem-Sai has argued that Ghana cannot lawfully create a fully independent prosecutorial body unless Article 88 of the Constitution is first amended, insisting that no ordinary Act of Parliament can override the constitutional powers of the Attorney General.
Speaking on The Law on JoyNews, he said the legal position on the matter is, in his view, straightforward and widely shared within the profession.
According to him, lawyers who have examined the issue, including some who have served in or are still connected to the Office of the Special Prosecutor, generally accept one central point: if the country wants an independent prosecutorial authority, the Constitution itself must be changed.
He said he shares that view without hesitation and could not, in good faith, defend a contrary argument in court, in legal advice, or in academic writing.
His reasoning was that the Constitution already provides a clear method for amendment, and that process cannot be bypassed through ordinary legislation. In his view, Parliament cannot use a regular statute to alter a constitutional arrangement that has been expressly set out in the supreme law.
To support that argument, he pointed to Ghana’s history of constitutional review efforts, saying those processes exist precisely because everyone understands that constitutional change must follow the special path laid down in the Constitution itself.
He also referred to previous Supreme Court decisions, which he said have consistently rejected attempts to change constitutional provisions through ordinary parliamentary measures rather than formal amendment procedures.
On that basis, Srem-Sai maintained that the Special Prosecutor Act, being an ordinary law passed under the standard legislative process, cannot be treated as having modified Article 88.
He said the language of the Constitution itself makes the relationship clear, particularly where it says certain arrangements are “subject to” constitutional provisions. In his reading, that means the statute must yield to the Constitution, not the other way around.
For that reason, he said the judge who recently ruled against the OSP’s claimed independent prosecutorial authority arrived at the correct legal conclusion.
