Deputy Attorney-General and Minister for Justice, Dr Justice Srem-Sai, has maintained that Parliament cannot transfer the Attorney-General’s constitutionally mandated prosecutorial powers to the Office of the Special Prosecutor (OSP) through ordinary legislation. According to him, the Constitution expressly vests the authority to conduct public prosecutions in the Attorney-General, meaning Parliament lacks the constitutional power to reassign or delegate that authority through an Act of Parliament or a Legislative Instrument (L.I.). Discussing the powers of the OSP on The Law with Samson Lardy Anyenini on JoyNews on Sunday, July 26, Dr Srem-Sai said arguments suggesting that Parliament had delegated the Attorney-General’s prosecutorial powers to the Special Prosecutor through legislation were fundamentally flawed.
“The argument is that the person whom the Constitution gives authority to is the only person who can delegate. You cannot say someone can delegate the power that belongs to another person,” he said. The Deputy Attorney-General was responding to claims that the Office of the Special Prosecutor Act and the Office of the Special Prosecutor Operations Regulations, 2018 (L.I.
2374), effectively authorise the Special Prosecutor to exercise prosecutorial powers independently of the Attorney-General. Some legal experts have argued that Parliament “statutorily authorised” the Attorney-General’s prosecutorial powers to the Special Prosecutor, thereby eliminating the need for further executive authorisation. However, Dr Srem-Sai rejected that interpretation, insisting Parliament could not delegate powers that the Constitution does not confer on it.
“Parliament has no power to prosecute, and if you have no power to prosecute, you cannot delegate that power to anybody.” He explained that both the OSP Act and its accompanying Legislative Instrument derive their authority from Parliament and therefore cannot alter constitutional allocations of power. “Anything that we have seen from the L.I., the L.I. is not an executive instrument; it is also by Parliament.
The Act is legislation, so anything in either the L.I. or the Act is by Parliament.” Distinguishing the constitutional roles of Parliament and the Attorney-General, Dr Srem-Sai argued that each institution must operate within the powers assigned to it by the Constitution. “Just as the Attorney-General cannot…
According to him, the Constitution unequivocally vests prosecutorial authority in the Attorney-General, making it impossible for Parliament to create an independent prosecutorial body through ordinary legislation alone. His comments come in the wake of the recent Quo Warranto ruling involving the OSP, which has reignited debate over whether the anti-corruption body can independently prosecute criminal cases. Speaking on The Law with Samson Lardy Anyenini on Sunday, 26 July, Dr Srem-Sai said the High Court’s decision reflected the long-held position of constitutional lawyers, as well as current and former holders of the Office of the Special Prosecutor.
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