Courts may remain split on whether Ghana’s Office of the Special Prosecutor can prosecute on its own. But the OSP’s handling of the Airbus saga—especially the public exoneration of John Mahama—raises a simpler, practical question: who, exactly, was the OSP answerable to when it chose not to charge?
Ghana’s debate over the Office of the Special Prosecutor (OSP) is often framed as a technical constitutional fight: can the OSP prosecute cases independently, or must it act under the Attorney-General’s authority? Recent decisions suggest the courts are not speaking with one voice.
If you want the clearest real-world test of the OSP’s prosecutorial independence, stop waiting for a perfect Supreme Court pronouncement. Look at Airbus.
Yes, the Supreme Court is the final authority on interpreting Ghana’s Constitution. But politics—and prosecutions—do not wait. The Airbus matter put the OSP face-to-face with a politically explosive question, because former President John Dramani Mahama was identified in external proceedings as “Government Official 1.”
In Ghana, the Airbus allegations were examined by the OSP during Martin Amidu’s tenure, when Mahama was publicly referenced as “Government Official 1.”
Under the current Special Prosecutor, Kissi Agyebeng, the OSP later announced that it had found no basis to charge Mahama—or any of the individuals said to be implicated in the Airbus saga.
What the global Airbus settlement established
In the United Kingdom, the United States, and France, prosecutors approved a record-breaking coordinated settlement with Airbus SE over widespread bribery and corruption offences.
Airbus agreed to pay about €3.6 billion (roughly $3.9 billion) to resolve the investigations—widely reported as the largest anti-corruption settlement at the time.
Key points (UK/US proceedings)
• UK (SFO DPA, Southwark Crown Court): Airbus admitted offences relating to failure to prevent bribery under the UK Bribery Act 2010 and agreed to a penalty reported at close to €1 billion (about £840m), approved by Dame Victoria Sharp.
• US (DOJ): Airbus agreed to pay more than €500m to resolve allegations involving the Foreign Corrupt Practices Act (FCPA) and International Traffic in Arms Regulations (ITAR).
• Findings: The court described corruption as “endemic” in parts of Airbus’s business, involving intermediaries and improper payments to officials and executives across multiple countries, including Ghana.
• Bottom line: The wrongdoing was described as grave, but Airbus avoided a conviction through cooperation and the deferred prosecution framework.
Why Airbus matters to the OSP’s prosecutorial powers debate
Here is the point many commentators glide past: the OSP did not simply file something quietly and move on. It held a press conference to announce that former President Mahama had been exonerated—during a highly charged political moment. Predictably, the finding was celebrated and weaponised in partisan debate as proof of anti-corruption credibility.
In its public statement on the Airbus matter, the OSP’s core claims were straightforward:
The OSP said it found no basis to charge any individual and would not initiate criminal proceedings.
• Scope and trigger: The OSP said it investigated allegations linked to the purchase of C-295 military aircraft (2009–2015) after a referral from President Nana Addo Dankwa Akufo-Addo.
• Foreign findings not determinative: It said UK/US outcomes dealt with Airbus’s conduct under foreign law and did not, by themselves, establish offences under Ghanaian law.
• No evidence against Mahama: It stated it found no evidence that Mahama facilitated an intermediary relationship or committed an offence within the OSP’s mandate.
• Commissions vs bribes: It argued the alleged intermediaries expected lawful commissions under an agency arrangement, rather than bribes for corrupt purposes.
• Decision: The OSP closed the investigation.
This is where the constitutional argument becomes more than theory. If the OSP truly has independent prosecutorial power, then the decision to charge—or not charge—should rest with the OSP alone, on the evidence and the law. If it does not, and must act under the Attorney-General’s prosecutorial umbrella, then any high-stakes decision to close a politically sensitive file should raise a basic transparency question: was the Attorney-General consulted, and did the Attorney-General approve?
That is why Airbus lingers over today’s split decisions. The OSP made a definitive prosecutorial call and communicated it publicly. Whether that call required the Attorney-General’s green light is not an abstract classroom puzzle—it goes to accountability in one of the most politically consequential anti-corruption investigations in recent memory.
• Date and scope: The OSP said it presented findings on 8 August 2024 after investigating allegations tied to the purchase of C-295 military aircraft (2009–2015), following a referral from President Nana Addo Dankwa Akufo-Addo.
• Distance from foreign outcomes: It argued the UK/US outcomes addressed Airbus’s conduct under foreign law and did not automatically determine criminal liability in Ghana.
• No case against Mahama: It said it found no evidence that Mahama facilitated any intermediary relationship or committed an offence within the OSP’s mandate.
• Commissions vs bribes: It stated that payments to alleged intermediaries were understood as commission-based remuneration under an agency arrangement, not bribes to Ghanaian officials.
• Decision: The OSP closed the matter and stated it would not initiate criminal proceedings.
• Date and scope: The OSP said it presented findings on 8 August 2024 after investigating allegations tied to the purchase of C-295 military aircraft (2009–2015), following a referral from President Nana Addo Dankwa Akufo-Addo.
• Distance from foreign outcomes: It argued the UK/US outcomes addressed Airbus’s conduct under foreign law and did not automatically determine criminal liability in Ghana.
• No case against Mahama: It said it found no evidence that Mahama facilitated any intermediary relationship or committed an offence within the OSP’s mandate.
• Commissions vs bribes: It stated that payments to alleged intermediaries were understood as commission-based remuneration under an agency arrangement, not bribes to Ghanaian officials.
• Decision: The OSP closed the matter and stated it would not initiate criminal proceedings.
The questions that won’t go away
If the OSP’s Airbus decision is to be a precedent—legally or politically—four practical questions deserve clear answers:
- What communications (if any) took place between the OSP and former President Mahama’s legal team during the investigation?
- Did Mahama’s team ever ask the OSP to seek authorisation or direction from the Attorney-General (then Godfred Dame)?
- What, specifically, drove the decision not to prosecute—evidence, jurisdictional limits, or legal interpretation?
- If the Attorney-General’s authorisation was required (or customary), was it sought—and is there a record of it?
The wider point is simple: if the OSP can reopen matters and communicate publicly, then the paper trail—how decisions were made, and who was consulted—will inevitably become part of the public accountability conversation.
A Right to Information (RTI) request to the OSP may be the most direct way to clarify what happened behind the scenes. Until then, the Airbus file remains a real-world lens on the OSP’s claimed independence—and the limits of it.
About the author
Kwadwo Kusi-Frimpong is a specialist in law, finance, financial crime, governance, and regulation, with experience working with banks and financial institutions across the United Kingdom, Switzerland, and The Netherlands. He has appeared on TV3 and is a regular contributor to Ghana Broadcasting Corporation flagship programmes, including News, Business Link, Market Avenue, and Talking Point.
He studied Political Science and Philosophy at the University of Ghana, holds a Graduate Diploma in Law and an LLM from The University of Law (formerly the College of Law), and has a postgraduate qualification in Financial Strategy from Saïd Business School, University of Oxford.
