.
The SML-GRA deal raises questions of financial loss, not corruption. And causing financial loss does not fall within OSP’s remit
Ken Ofori-Atta is a global brand – not a target for political zeal.
Any attempt by the State to drag his name through contrived criminal allegations is reckless and defamatory. It dents not only his reputation but Ghana’s standing in global finance. When institutions abandon legal boundaries for political showmanship, they do more harm to national credibility than to their intended targets.
Politico-Legal Commentary
The Office of the Special Prosecutor (OSP) was born out of a national hunger for accountability – a constitutional offspring of civic frustration. Yet power without precision breeds danger, and the current probe into the Strategic Mobilisation Ghana Limited (SML)- GRA contract exposes that danger with unsettling clarity.
1. The Heart of the Matter
At its core, the publicly known allegations in the SML controversy concern procurement and fiscal management. The pertinent questions are: Was the State overcharged? Was value received? Were due processes followed? These are classic questions of financial loss to the state.
Whatever the moral outrage, these are not, in their primary nature, questions of bribery or self-dealing. Act 959, the OSP Act, defines the office’s object narrowly:
“To investigate and prosecute corruption and corruption-related offences.”
That statutory phrase is deliberate. It is not a general license to investigate all state financial matters. For the OSP’s jurisdiction to be triggered, the facts must reasonably suggest, from the outset, an offence grounded in corrupt intent – such as bribery, extortion, or conflict of interest. An allegation of a bad deal or poor oversight, without more, does not meet this threshold. Financial loss caused by negligence or administrative error lies fundamentally outside this perimeter.
This is not semantics – it is the line that separates misjudgment from corruption, and law from overreach.
2. The Law Is Unequivocal
The offence of causing financial loss to the State is created under section 179A of the Criminal Offences Act, 1960 (Act 29), a provision conspicuously located outside its corruption chapters. By constitutional design, Article 88 vests the Attorney-General with ultimate authority over criminal prosecution. While Parliament, through Act 959, granted the OSP independent powers to investigate and prosecute a specific category of crime (corruption), it did not strip the A-G and the Police CID (the investigative arm under the Police Service Act, 1970 (Act 350)) of their primary jurisdiction over all other crimes, including section 179A.
In Martin Amidu v. Attorney-General & Others (2019), the Supreme Court affirmed that statutory bodies must act strictly within their enabling Acts. Jurisdiction cannot be expanded by zeal – it must be expressly conferred. Thus, for the OSP to investigate a matter whose essence is financial loss, without a demonstrable predicate of corruption, is to trespass on the constitutional and statutory territory of the A-G and Police CID.
3. Ken Ofori-Atta and the Question of Mandate
The Special Prosecutor’s summons and “red alert” directed at Ken Ofori-Atta must therefore be grounded in a suspicion of a corruption offence, not merely his presence in a chain of command that approved a contract now questioned for value-for-money. The allegations, as known, concern causing financial loss – a matter for the Attorney-General and Police CID.
Unless the OSP’s actions are based on credible evidence that Ofori-Atta personally benefited, solicited a bribe, or engaged in a corrupt agreement – as distinct from authorizing a transaction that proved financially disadvantageous – it has no lawful basis to target him under Act 959. To do so is to use an anti-corruption mandate as a proxy for a general-purpose fraud inquiry, usurping the A-G’s constitutional function and substituting legal due process with administrative zeal.
The OSP is not empowered to convert every case of perceived state loss into a corruption investigation. The distinction between loss and corruption is not semantic – it is jurisdictional.
4. Why Mandate Matters
Institutions draw legitimacy from legality, not excitement. When the OSP expands its jurisdiction by political inference, it endangers both its credibility and the rule of law. The office risks mutating from a precise anti-corruption tool into a political enforcement unit – a role Parliament never intended.
Law enforcement without legal boundaries is not vigilance; it is overreach. Once a body exceeds its mandate, it loses the moral authority that sustains its independence. Each unlawful inquiry may excite headlines, but it corrodes the institutional discipline that gives anti-corruption its real force.
5. Institutional Integrity and Judicial Risk
Investigations undertaken ultra vires are void. Any prosecution that stems from them can be struck down ab initio. Beyond the legal hazard, such actions set a dangerous precedent – normalising arbitrary enforcement under the banner of integrity.
The OSP must remember: the same law that empowers it also confines it. The moment it forgets that, it becomes the very excess it was created to correct.
6. The Way Forward
The proper and lawful course requires both immediate correction and structural clarity:
a. Immediate Correction: The OSP should either present the specific evidence of corrupt intent that places this matter within its mandate, or refer the SML case to the Police CID under the Attorney-General’s authority.
b. Mandate Discipline: Restrict the OSP’s inquiry strictly to establishing whether a corruption nexus exists – such as bribery, conflict of interest, or influence-peddling – rather than acting as a primary investigator for procurement infractions.
c. Parliamentary Action: Reinforce statutory boundaries through legislative clarification to prevent overlapping mandates and institutional collisions.
If Parliament remains silent, this confusion will persist, and public confidence in all our accountability institutions will continue to erode.
Closing Argument
Law enforcement must be bound, not unbounded. The OSP’s current course blurs the line between vigilance and violation. To preserve public trust, it must retreat to its lawful lane. The rule of law demands nothing less.
By Justice Sarbah
