ATTORNEY GENERAL’s DISCRETIONARY POWER ON ENTRY OF NOLLE PROSEQUI AND WITHDRAWAL OF CHARGES: ERODING PUBLIC CONFIDENCE IN THE CRIMINAL JUSTICE SYSTEM

-By Institute of Political Studies :IPS-GHANA

The exercise of the Attorney General’s (A-G) powers under Article 88(5) of the 1992 Constitution and Sections 54 &59 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) on entry of nolle prosequi and withdrawal of criminal charges against Samuel Ofosu Ampofo, Dr. Ernest Thompson, Dr. Stephen Opuni, Alhaji Collins Dauda and Dr. Ato Forson among others is a matter of high public interest and such exercise ought to be done upon weighty considerations. Whenever prosecution of suspected offenders becomes a matter of high public interest and the prosecution is terminated, it generates controversy within the public domain as we are currently witnessing. The Attorney General, drawing its principal powers from Article 88 and sections 54 and 59 of Act 30 is still guided by the constitutional safeguards in such exercise to deepen public confidence in our criminal jurisprudence and also ensures good governance. 

Looking at the background of the instant case warranting the withdrawal and the time of its exercise, the only reasonable conclusion is that the A-G’s action is actuated by partisan influence as the offenders are politically exposed personalities with identified political color. This is a blot on our criminal adjudication system as well as our pride within the comity of nations.

-Publication of Guidelines and/or Regulation by the A-G. It is submitted that, the A-G intending to prioritize the “talk” of His Excellency John Mahama in handling corruption related matters ought to have complied with Articles 11(7) and 296 of the 1992 Constitution to discharge the principles of good governance. Given the gravity of the offense involving financial crime and its impact on the general economy of the country, the inherent threat to independent constitutional body and its officers- the Electoral Commission, it was incumbent on the Attorney General to have allowed the matter to proceed to full trial or where there was the need to withdraw or terminate the proceedings, such consideration ought to be disclosed to the public due to the high public interest. It is trite that, Sovereignty resides with the people and on whose behalf it is exercised cannot be kept in darkness or the said act of the A-G can’t be shrouded in secrecy in relation to the surrounding facts warranting the withdrawal of those charges. 

It is submitted that, inasmuch as the Attorney General is not bereft of its discretionary power, it ought to have done so in the best interest of the People of Ghana for whose welfare the powers of government are exercised. It must be reckoned that, the act of conducting criminal prosecution involves the exercise of diverse acts of discretion and may include discretion to withdraw charges and substitute new charges, discretion to discontinue prosecution among others. 

In view of the above, it was incumbent on the A-G not to have exercise such discretion at their whims and caprices which falls short of logical reasoning. The A-G in purporting to honor the ethos of the Constitution, 1992 ought to have published regulations, guidelines detailing the circumstances for such withdrawal which may contain details like; the A-G upon review of the proceedings has detected fatal flaws in the case of the prosecution which may lead to the acquittal of the accused persons, hence possible withdrawal to avoid verdict against the prosecution. The said Regulation would have assured the public of its accountability and its blindness to political biases. It is submitted that, withdrawal of charges under Section 59 is not one of those regular duties tha an A-G performs in the course of its daily work, hence, a discretionary power that is exercised ONLY from time to time in the public interest and also after taking into consideration a number of weighty factors. It is further submitted that, the full garmount of Article 296 of the 1992 Constitution is infused with transparency in the exercise of the discretionary powers and thereby check and balances of the discretion by those upon whom it is conferred. 

There has been instances where A-G has come under public pressure and had to disclosed the considerations that led to any exercise of its discretionary powers. For instance, A-G had to offer explanation about an exercise of discretionary power that terminated the prosecution of KWESI KYEI DARKWA(KKD) which was involved with high public interest. It must be said that, the decision to terminate prosecution is a matter of public interest.

Clearly, the actions of the A-G in withdrawing charges or entering Nolle prosequi should be regulated by the requirements of Articles 296 and 11(7) of the 1992 Constitution to avoid public confidence in criminal Justice being eroded. The acts of the Attorney General calls for judicial reforms, thus, decoupling the Office of the Attorney General from the Ministry of Justice to enhance prosecutorial independence deviod of political influence. It cannot be said that, the A-G barely few days in Office has apprised himself with the full facts of these high profile matters to necessitate his act of entering nolle prosequi and withdrawal of charges. All reasonable conclusion may be that, the A-G stands with his political party at the detriment of the entire citizens. Given the financial impropriety involving colossal amount of monies; ( Dr. Ernest Thompson accused of $14.8M, Alhaji Collins Dauda accused of $200M, Stephen Opuni accused of 217.3M, and Dr. Ato Forson accused of €2.37M), the Attorney General should have prioritized the interest of the State as well as the negative impact it might have on Ghana’s fight against corruption before the International Communities. Moreover, the diminished confidence on the economy by investors should have guided the Attorney General in its action. 

In conclusion, looking at the public uproar that greeted the conduct of the Attorney General should have informed the A-G to be novel and guided by traditional wisdom in exercising its discretionary powers.

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