INTRODUCTION
The decision of the John Dramani Mahama Government to abort the criminal trial by the entry of a nolle prosequi in the pending case of the Republic v Kwabena Duffuor & 7 Others (CR/0248/2020)” as a result of a negotiated settlement with the accused persons to recover only 60% of the proceeds of the financial crimes committed by the accused persons instead of submitting the settlement agreement to the trial court to be recorded and accepted as a part of a plea bargaining agreement pursuant to the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) or asking the accused to make an offer of compensation or restitution under Section 35 of the Courts Act, 1993 (Act 459) as amended to the court, reeks of high corruption.
This reeking high corruption by the Government has been dressed in the robe of an exercise of prosecutorial discretion by the Attorney-General, Dominic Akuritinga Ayine, whose discretion needs no explanation but who “in the spirit of accountability and transparency, considers it appropriate to provide the public with the rationale behind this decision.” The truth of the matter is that the Government and its Attorney-General knew that there was no way they could get away with quietly filing a discontinuance of the trial in such an important and high profile expropriation of public funds by the Government’s associates and cronies without the discontinuance becoming public and patriotic constitutional advocates asking for answers for such flagrant abuse of power.
What the Government has done through its Attorney-General is to sidestep the elaborate procedure set forth under the plea bargaining law and procedure contained in the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) or Section 35 of the Courts Act, 1993 (Act 459) which would have ensured a transparent judicial accountability by the accused persons for the crimes committed against the public. Instead, the Government and the Attorney-General claimed to have used non legally binding rules and procedures justified on the basis that: “In pursuit of this objective, the Office of the Attorney-General, in collaboration with other relevant state agencies established a threshold of 60% recovery of the alleged losses ‘to the state as a condition for reconsidering prosecution in specific cases.”
First and foremost, the gratuitous Government justification delivered under the smokescreen of reasons by the Attorney-General for the exercise of his prosecutorial discretion in a press release from the Office of the Attorney-General dated 22 July 2025 entitled “Nolle Prosequi: The Republic v Kwabena Duffuor & 7 Others (CR/0248/2020)” consists of empty rhetoric of accountability and transparency in the exercise of discretionary power directly and patently contrary to the preambular values of true accountability and transparency underpinning the 1992 Constitution.
CONFLICT OF INTEREST AND ABUSE OF POWER
I shall examine and analyse the reasons assigned by the Attorney-General presently, but it is fundamentally important from the onset to underscore the common sense and fact that, accountability and transparency demands of the authority exercising discretionary power not to be seen to have any conflict of interest regarding the matter in respect of which the power is exercised. This common sense has also been given constitutional approval as captured under Article 286 of the Constitution proscribing conflict of interest in public office holders in the performance of the functions of their office.
More particularly, the 1992 Constitution enjoins under Article 296 firstly, that where in the 1992 Constitution or in any other law discretionary power is vested in any person or authority that discretionary power shall be deemed to imply a duty to be fair and candid:
this also connotes being transparent and accountable. Secondly, the donee of discretionary power is enjoined not to be arbitrary, capricious, or biased either by resentment, prejudice, or personal dislike in its exercise and to act in accordance with the due process of law.
While the Attorney-General’s press release which is the subject of this discourse claims to be providing the public with the rationale behind the decision to enter the nolle prosequi in the Duffuor case in the spirit of accountability and transparency, it failed to be fair and candid in not informing the public that the donee of the discretionary power, Dominic Akuritinga Ayine, the Attorney-General was once upon a time the lawyer for the 1st and 2nd accused persons, Kwabena Duffuor, and his company, HODA Holdings Limited, in the case of the Republic v. Kwabena Duffour & 7 Others. Starrfm.com on 12 February 2020, for instance, reported as follows:
“Preliminary Observations by Lead Counsel applying for bail for his clients, Dr Dominic Aryine (sic), lawyer for Dr. Kwabena Duffuor and HODA Holding (1st and 2nd accused persons) described the charges preferred against his clients as grossly misconceived and lacking any legal basis whatsoever. He further claimed that Dr. Duffuor per the charges levelled against him by the State is being treated unfairly. He invited the judge to look at the charges critically and if possible dismiss them.
Bail Application
Dr. Dominic Aryine (sic) in his bail application stated that his client, Dr. Duffuor, is not a flight risk and he is an innocent man of great integrity. He indicated that his client is already on Police enquiry bail and that a self recognizance bail will be a preferred bail condition for his clients if the Court is so minded to do. All other defence lawyers in the case associated themselves with the submissions of Dr. Dominic Aryine (sic), for bail for their clients as well.A-G’s Input
Attorney-General Gloria Akuffo, who led the prosecution, when asked by the court of her position on the plea to review the bail terms, said the state maintains its position that the bail terms must commiserate with the charges preferred against the nine officials.The court then reviewed the bail condition from GH¢100 million to GH¢60 million each but maintained the three sureties, two of whom must be justified.”
I have quoted extensively the above portion of the Starrfm report so that there is no doubt about the role Dominic Ayine played as defence lawyer at the court hearing of the case to ground his conflict of interest and real likelihood of bias now as Attorney-General in the Kwabena Duffuor criminal case.
Consequently, the Attorney-General and former defence lawyer for the 1st and 2nd accused persons should have been upfront and honourably disclosed his previous professional relationship as defence lawyer in the case and proffered the rational for his exercise of the discretion to enter a nolle prosequi in the circumstances of his conflicting interest and real likelihood of bias with his reasons for not allowing the trial court to accept or decline a plea bargain or an offer of compensation or restitution based on the agreed negotiated settlement in accordance with the due process of law.
Some of the suspects in the case, particularly the 1st accused and the recently appointed Governor of the Bank of Ghana who was also an accused person in the same case when Dominic Ayine appeared as the lawyer for Kwabena Duffuor have been very close political associates of President John Mahama and the Attorney-General, Dominic Ayine for years.
Kwabena Duffuor was the Minister of Finance when John Mahama was the Vice President and later became President after the demise of President Mills between 7 January 2009 to 7 January 2013. Kwabena Duffuor also contested the primaries to be nominated as Presidential candidate for the NDC in the 2024 election only to drop out of the race before the ballot.
Johnson Pandit Asiama who was recently appointed as the Governor of the Bank of Ghana by President Mahama was appointed on 16 April 2016 as the second Deputy Governor of the Bank of Ghana in the first government of the President: Johnson Asiama resigned his office in 2017 to put himself upon the Republic for trial in the case under discussion.
Dominic Ayine was then Deputy Minister for Justice at the time of Asiama’s appointment to the Bank of Ghana. The case against Asiama in the Kwabena Duffuor case was withdrawn from the trial High Court upon the instructions of Dominic Ayine as John Mahama’s Attorney-General by a notice of withdrawal filed on 29 January 2025 to pave the way for his appointment as the Governor of the Bank of Ghana by President Mahama on 31 January 2025 only to be followed closely by the abuse of power in discontinuing the whole case of Kwabena Duffuor and his cohort of accused persons by nolle prosequi on 22 July 2025.
The foregoing demonstrates that the Government represented by the President, John Dramani Mahama, is tainted by conflict of interest under Article 286 with the Attorney- General being further tainted with abuse of discretionary power under Article 296 of the 1992 Constitution in entering a nolle prosequi in the case of the Republic v Kwabena Duffuor & 7 Others (CR/0248/2020) on the grounds of a shadowy self-serving established 60% threshold for the “…. recovery of the alleged losses ‘to the state as a condition for reconsidering prosecution in specific cases” instead of using the plea bargaining or offer of compensation or restitution laws to ensure accountability, transparency, and compliance with the due process of law in the pending criminal trial.
POROUS REASONS FOR ENTERING THE NOLLE PROSEQUI ON 22 JULY 2025
The Attorney-General’s press release informed the public that “the central objective of these prosecutions had been to (a) ensure accountability for public funds and, more importantly, (b) recover losses occasioned to the State through various alleged acts of financial impropriety.” The rationale adduced by the Attorney-General for exercising his conflicted discretionary power to enter a nolle prosequi in the case woefully failed to state any accountability underpinning the excise of the discretion which let the accused walk away free without a judicial acknowledgement of guilt and offer of compensation or restitution before a court of law in accordance with Section 35 of the Courts Act, 1993 (Act 459) or plea bargaining negotiations under the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) as accountability for the crimes committed against the State. It also failed to state the logic behind accepting only 60% of the amount expropriated as closure for the case by the entry of the nolle prosequi even if the more important consideration was to recover losses occasioned by various alleged acts of financial crimes.
The Attorney-General states the justification for the exercise of his discretionary power to be based on the fact that: “In pursuit of this objective, the Office of the Attorney-General, in collaboration with other relevant State agencies established a threshold of 60% recovery of the alleged losses to the State as a condition for reconsidering prosecution in specific cases.” This very statement by the Attorney-General is opaque for failing to disclose the “other relevant state agencies” with which the Attorney-General collaborated in establishing a threshold of 60% recovery of alleged losses to the state as a condition for reconsidering prosecutions in specified cases pending before courts of law and the authority of those relevant state agencies to establish such conditions and threshold in the specified cases. Certainly, these so called relevant state agencies are not parliamentary or judicial in character, otherwise the laws, regulations, decisions or orders they made would have become matters of public knowledge and not kept in the bosom of the Attorney-General to be used to spring surprises on the public at the pleasure of the Attorney- General.
As a legal minimum, Article 296 (c) of the 1992 Constitution enjoins the Attorney-General to publish by constitutional instrument or statutory instrument, regulations that are not inconsistent with the Constitution or any other law to govern the exercise of his discretionary power in entering nolle prosequi in criminal trials, which has not been done.
Consequently, if there indeed exists a legally established threshold of 60% recovery of alleged losses to the state as a condition for reconsidering prosecutions in specified cases as a result of the collaborative efforts of relevant state agencies and the Attorney-General these rules or regulations should have been made public and accessible to the public when they were first made to enable the exercise of the Attorney-General’s discretion to be accountable and transparent. The Attorney-General’s press release is the first time I am hearing of such established conditions for extra-judicial negotiations and settlement of criminal cases that can give rise to the exercise of the Attorney-General’s discretion for entering nolle prosequi in pending criminal trials.
Furthermore, the bald statement in the press release that: “Following prolonged negotiations and engagements, the accused persons in The Republic v. Kwabena Duffour & 7 Others case have met this recovery threshold” without informing the public of what this mysterious “established threshold of 60% recovery” means in fact, with an accompanied full disclosure of the contents of negotiated settlement agreement renders the claim of the Attorney-General to accountability and transparency nugatory for the exercise of genuine prosecutorial discretion in the instant case. Or is this another case partaking of being a classified national security operation like the memorandum in the Johnson Asiama case where the Attorney-General pleaded national security for his inability to make a full disclosure?
ATTORNEY-GENERAL’S FURTHER EXPLANATION ON 28 JULY 2025
The Minister for Government Communications attempted to douse the objections raised by reasonable and patriotic citizens by putting out a notice in the media that the Attorney-General will give a detailed explanation for his decision to enter a nolle prosequi in the case of the Republic v. Kwabena Duffour & 7 Others on Monday, 28 July 2025. I withheld publishing this article to abide that event.
On Monday, 28 July 2025 the Attorney-General delivered a nine-page press briefing as an “update on ORAL investigations, prosecutions and related matters” in which he devoted the first seven pages to providing “further details of my decision to enter a nolle prosequi in the case of Republic v. Kwabena Duffour & 7 Others;…………………………………………………… ”.
I have read and re-read the written brief of the Attorney-General several times and I have no doubt in my mind that it is the most dishonourable and dishonest brief intend for the public I have ever come across from any Attorney-General in my life as a student at the Faculty of Law, the Ghana School of Law, my entire career as a lawyer and a public officer over the decades.
John Dramani Mahama’s Attorney-General exhibited the worse dishonourable reputational trait of an Attorney-General in taking the electorate and Ghanaians for granted by not acknowledging and explaining the ethical fact that he was a lawyer for Kwabena Duffour and his HODA Holdings Limited in Republic v. Kwabena Duffour & 7 Others before he was appointed as Attorney-General to underscore his ability to act impartially, nonetheless, in the exercise of the prosecutorial discretion to enter the nolle prosequi. This failure constitutes the worse example of misconduct any Attorney-General can set for the legal profession as the leader of the Bar. The palpable and deliberate omission by Dominic Akurigitinga Ayine tainted the entire press briefing and rendered it dishonest.
The public was as a matter of right entitled to be informed by the Attorney-General that the Lawyers for the Unibank directors and shareholders who approached him with a proposal of their client’s intention to settle their indebtedness to UNIBANK in March this year after he had metamorphosed from one of Kwabena Duffuor’s former lawyers to Attorney-General were former colleagues in the case he had shared perspectives with as to the strengths and weakness of the case in his former capacity.
The meeting Dominic Ayine convened on 25 March 2025 as Attorney-General was clearly tainted with this conflict of interest and bias on his part and this would not have been lost on the Receiver of UNIBANK, Mr. Nii Amanor Dodoo who could not have dared to protest in the changed circumstances of Dominic Ayine from Kwabena Duffuor’s lawyer to Attorney-General. The reader should not also forget the fact of the new Governor of the Bank of Ghana’s relationship with the case as a just freed accused person that enabled him to be appointed to that position. What comes out unmistakably to me in the seven page brief was that Dominic Ayine, Kwabena Duffour’s previous lawyer was negotiating with Dominic Ayine the Attorney-General.
Dominic Ayine, the Attorney-General’s brief to the public recognizes that apart from the criminal case against Kwabena Duffuor and his cohort of accused persons involving a total amount of GHc1.2 billion there was also pending in court a civil case involving a total exposure of GHc5.7 billion. The Attorney-General strained to underscore the fact that the total exposure in the criminal case is part of the total civil exposure. What he failed to tell the public was that the GHc1.2 billion had to be included in the total civil exposure because his predecessor intended to recover that amount as part of the civil proceedings while seeking accountability from the accused persons and deterrence through criminal justice administration in Republic v. Kwabena Duffour & 7 Others.
Consequently, even if the accused persons were acquitted after the criminal trial, the State could still pursue the recovery of the total amount of GHc1.2 billion as part of the civil case which was simultaneously pending in the High Court. As the Attorney-General admits and vindicated his predecessor’s actions “while the criminal prosecution was intended to serve as a punitive and deterrent measure it is through the civil process that actual recovery of funds is effectively pursued.” The fact that “both the criminal and civil cases have persisted for over six years with no immediate resolution in sight” is no valid reason to enter a nolle prosequi in an ongoing criminal prosecution to abate it.
Dominic Ayine, Kwabena Duffour’s defence lawyer, cannot as Dominic Ayine, the Attorney-General take an independent and impartial “pragmatic, wholistic approach by engaging both the Receiver and the Accused Persons [some of whom he previously represented] to broker a resolution that settles both the criminal and civil dimensions of the matter.” The Attorney-General’s statement that: “The terms of settlement are structured to ensure that the Attorney-General, the Bank of Ghana, and the Ministry of Finance exercise oversight over the recovery of the negotiated amount” without any undertaking in the nature of evidence that the terms of the agreed settlement have been filed and accepted as a consent judgment by court in the civil action is bogus and fraudulent. Publish the entire settlement agreement and let Ghanaians do the maths and reasoning for themselves!
The concluding statement by the Attorney-General in the same paragraph that: “Progress under the agreement will be subject to quarterly reviews to ensure that the Accused Persons fulfill their obligations as agreed” is an insinuation that the settlement agreement between the Government and the accused persons is a private settlement arrangement and
not one cognizable by the court as an enforceable consent judgment in the civil suit. How can a conflicted Attorney-General, Governor of the Bank of Ghana, and the Government
personified by the President enforce the alleged settlement agreement which from the foregoing has no binding force as a consent judgment? Wool is being pulled over our eyes!
It is important to highlight the fact that the Attorney-General’s press release of 22 July 2025 does not even mention the pending civil case involving GHc5.7 billion as part of the reason for entering the nolle prosequi in Republic v Kwabena Duffuor & 7 Others. The reason was entirely based on a minimum threshold of 60% for the recovery of assets as a condition for the filing of the nolle prosequi. The integration of the GHc1.2 billion in the criminal charges with the total exposure of GHc5.7 billion in the civil case in the brief on 28 July 2025 was an after thought intended to bewilder , jade, and confuse the public.
CONCLUSIONS
The Attorney-General had by his press release informed the public that: “Following the prolonged negotiation and engagements, the accused persons in The Republic v Kwabena Duffuor & 7 Others case have met the threshold” of 60% of the total amount of GHc1.2 billion involved in the criminal prosecution as a significant recovery made to the State as the reason for discontinuing the criminal action by nolle prosequi.
The purpose of criminal justice is principally for holding persons suspected of the commission of criminal offences accountable for their crimes by convicting and punishing them for the offences to deter others from following the same criminal path. In pursuing this laudable objective the administration of criminal justice would rather that nine guilty persons be set free than one innocent person be convicted. Consequently, the inability of the prosecution to secure a conviction in cases it has prosecuted to judgment is no justification to compel or intimidate accused persons to agree to payment of a percentage of alleged financial crime as compensation or restitution or recovery outside Section 35 of the Courts Act, 1993 (Act 459) or the plea bargaining law encompassed in Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079).
The example of the subsequent acquittal of Michael Nyineku in the Beige Capital case cited by the Attorney-General for earlier entering the nolle prosequi in his former client,
Kwabena Duffuor’s case is disingenuous. The acquittal of the accused by the Court of Appeal on 24 July 2025 subsequent to the nolle prosequi entered on 22 July 2025 does not foreclose the State to pursue its right of appeal to the Supreme Court, and also in civil action for the recovery of the total amounts involved, except in cases where conflicted Attorneys-General in the mould of Dominic Ayine and their governments decide to protect family, friends, and cronies involved in financial crimes.
The recovery of the proceeds of crime in a criminal trial can only be justified were a crime has really been committed, otherwise the process of criminal justice will be used by the state or rogue public officials as an instrument of extortion from persons suspected of financial crimes or doing favour for the Government’s family, friends, and cronies (as in this case) in the name of assets recovery of percentages of alleged financial crimes without any interest paid on the assets expropriated, and profited from for years. What is the need of the Republic of Ghana extorting monies from Kwabena Duffour and his cohort of accused persons if they do not admit any guilt and the Republic is capable of achieving recovery at civil law? This cannot be criminal justice administration! It is high corruption and abuse of power by the government in the name of asset recovery.
The Attorney-General, Dominic Akuritinga Ayine, when he was Kwabena Duffuor and his company, HODA Holdings’ lawyer, told the High Court on 12 February 2020 that: “……………………….. the charges preferred against his clients as grossly misconceived and lacking any legal basis
whatsoever.” How come that as Attorney-General those charges now have merit to warrant an opaque negotiated settlement for 60% of the undisclosed total sum, whether with interest or without interest? There is more than meets the eye in the Government’s decision to resort to the stratagem of nolle prosequi to abort a fair and impartial hearing of the case.
The government’s decision to abort the trial in Republic v. Kwabena Duffour & 7 Others under the rubric of the exercise of prosecutorial discretion smacks of a text book example of governance of family, friends and cronies that also smells of high corruption. It is important that patriotic citizens step forward and speak the truth to the Government to stop playing tricks with the intellect of the electorate with cheap psychological media operations in the name of being accountable and transparent. I have spoken up. What of you, fellow citizen! Let us put Ghana First!
Martin A. B. K. Amidu 29 July 2025
