The Attorney General plays a vital role in Ghana’s administration of justice, as enshrined in Article 88 of the 1992 Constitution. The Attorney General is responsible for initiating and conducting all criminal prosecutions, as well as overseeing all offences prosecuted on behalf of the Republic of Ghana. In essence, the Attorney General serves as the chief legal representative of the state, with the power to authorize others to act on their behalf in accordance with the law.
Additionally, the Attorney General is responsible for instituting and conducting all civil cases on behalf of the state, and any civil proceedings against the state must be brought against the Attorney General as the defendant.This crucial role underscores the significance of the Attorney General in upholding justice and ensuring the rule of law in Ghana.
Ghana’s judicial system has come under intense scrutiny in recent times, with the concept of Nolle Prosequi taking center stage. Nolle Prosequi, a Latin phrase meaning “I do not wish to prosecute,” grants the Attorney General the power to discontinue criminal proceedings against an accused person at any stage, provided a verdict or judgment has not been delivered.
Once nolle prosequi is entered, the court shall discharge the accused person or persons. The accused person can however be re-arrested and charged again if the prosecution so wishes. The courts have held that, the Attorney General is not mandated by law to give reasons for entering a nolle prosequi and his decision is not ordinarily subject to Judicial Review. This raises several concerns about the integrity of Ghana’s justice system and the potential for abuse of power.
Thus, Section 54 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) states: “(1) In a criminal case, and at any stage of a criminal case before verdict or judgement, and in the case of preliminary proceedings before the District Court, whether the accused has or has not committed for trial, the Attorney General may enter a nolle prosequi, by stating in Court or by informing the Court in writing that the Republic does not intend to continue the proceedings. (2) Where the Attorney General enters a nolle prosequi under subsection (1), (a) the accused shall be discharged immediately in respect of the charge for which the nolle prosequi is entered, or (b) the accused shall be released where the accused has been committed to prison, or (c) the recognisances of the accused shall be discharged where the accused is on bail. (3) The discharge of the accused shall not operate as a bar to subsequent proceedings against the accused in respect of the same case” It is important to distinguish nolle prosequi from another legal concept known as withdrawal.
The prosection can withdraw any charge against the accused in trial or preliminary proceedings before a District Court with the consent of the Court or upon instructions of the Attorney General as provided for under Section 59 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) which states: “(1) In any trial or preliminary proceedings before a District Court a prosecutor, with the consent of the Court, or on the instructions of the Attorney General at any time before judgement is pronounced or an order of committal is made, may withdraw from the prosecution of a person generally or in respect of any one or more offences with which that person is charged.”
The intersection of Nolle Prosequi and political power in Ghana can have far-reaching consequences for the general public. At the heart of this issue is the Attorney General’s role, who is appointed by the President. This appointment can lead to a blurred line between politics and justice, as the Attorney General may favor certain individuals or groups based on their political affiliations.
One of the primary effects of this dynamic is the potential for selective justice. When the Attorney General enters a Nolle Prosequi, it can effectively discharge an accused person, only for them to be rearrested and charged again if the political landscape changes. This not only wastes state resources but also undermines the rule of law and perpetuates a culture of impunity.
Furthermore, this phenomenon can erode trust in the judicial system, as the public may perceive that justice is being manipulated for political gain which might be true in some cases. The lack of transparency and accountability in the decision-making process surrounding Nolle Prosequi can exacerbate this problem. Another key consequence is selective justice:
The Attorney General’s discretion to enter Nolle Prosequi can lead to selective justice, where certain individuals or groups receive preferential treatment based on their political connections. The entry of Nolle Prosequi results in the discharge of the accused person. However, this does not prevent the Attorney General from instituting subsequent proceedings against the same person on the same facts. This creates a situation where an individual’s freedom is precarious, and they can be rearrested at any time.
This not only wastes state resources but also infringes on the fundamental human rights of the accused person. Article 19 of Ghana’s 1992 Constitution states that everyone accused of a crime has the right to be heard in court until the case is determined. The use of Nolle Prosequi undermines this right, as it allows the Attorney General to discontinue a case without providing reasons, effectively denying the accused person a fair trial and also a breach of natural justice. Indeed, the concept can also lead to abuse of Power.
In the famous quote of Lord Acton “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority.” The power to enter Nolle Prosequi can be abused, especially in cases of public interest.
The Attorney General can discontinue a case without giving reasons, there is the possibility of acting on personal bias or interest. This lack of transparency and accountability erodes trust in the judicial system. The True Cost of Nolle Prosequi is undermining Justice for Victims in cases where victims are involved. One of the fundamental purposes of punishment in criminal matters is to protect society and provide justice and closure for victims.
However, when the Attorney General enters a Nolle Prosequi, freeing an accused person from prosecution, it can have devastating consequences for those who have suffered at the hands of the accused. Victims of crime often endure unimaginable trauma, pain, and suffering. The decision to enter a Nolle Prosequi can reopen old wounds, leaving victims feeling ignored, dismissed, and betrayed by the very system meant to protect them.
By discontinuing prosecution, the state sends a disturbing message: that the harm inflicted on the victim does not matter, and that justice is not a priority. This not only undermines the victim’s sense of dignity and worth but also erodes trust in the criminal justice system. Incidentally, the concept of Nolle Prosequi raises significant concerns about the integrity of Ghana’s judicial system.
While it may be intended to provide flexibility in the prosecution process, its potential for abuse and infringement on human rights cannot be ignored. It is essential to revisit this concept and ensure that it is used in a manner that upholds the principles of justice, fairness, and transparency. Additionally, the state must balance its discretion with the need to provide justice, closure, and validation for those who have suffered any form of wrong in criminal matters.
