Can The Practice Of Nolle Prosequi By The Attorney -General Be Challenged In Ghanaian Courts?
"Our lives begin to end the day we become silent about things that matter.” − Dr Martin Luther King
Beyond some political criminal cases, I have also observed numerous instances in which prosecutorial discretion appears to have been abused by the Attorney-General, the Police, and other institutions vested with prosecutorial authority. These experiences led me to repeatedly ask myself and others a simple but important question: Can such decisions be challenged?
Over the years, I posed such question to some judges, lecturers, and lawyers about the Attorney-General’s power to enter a nolle prosequi. The answer was almost always the same: “A nolle prosequi is not subject to judicial review; there is nothing that can be done about it.”
Yet I found this position difficult to reconcile with the constitutional framework of Ghana. In my pursuit of legal knowledge and my desire to broaden my understanding of judicial accountability, I chose judicial review as an area of deeper academic research.
As a patriotic citizen who values constitutional democracy and the rule of law, I became increasingly convinced that the argument that a nolle prosequi is immune from judicial review could not be entirely correct. Article 1(1) of the 1992 Constitution declares that sovereignty resides in the people of Ghana. Clause 1 of Article 17 establishes that “All persons shall be equal before the law.” Article 125(1) further provides that justice emanates from the people and shall be administered by the Judiciary, which is independent and subject only to the Constitution. Another important matter, Article 1(2) establishes the supremacy of the Constitution over all other laws and actions.
The principles behind the above constitutional provisions prompted me to investigate whether the orthodox position truly reflected the law and, if so, why it had gained such widespread acceptance.
I am therefore pleased to share that one of my research papers, co-authored with Nana Nyarkoa of the Ghana School of Law, has been accepted and published in the Tenth Edition of the Ghana School of Law Student Law Journal (GSLSLJ).
Our paper challenges a long-standing orthodoxy in Ghanaian criminal jurisprudence. We argue that the Attorney-General’s exercise of the power to enter a nolle prosequi under sections 54 and 55 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), following the coming into force of the 1992 Constitution, raises serious constitutional concerns. Specifically, we contend that these provisions are inconsistent with Articles 1(1) & 1(2), 17 (1)-(3), 23, 125 (1) & (3), and 296 of the Constitution.
We further argue that the orthodox principle that a nolle prosequi is not subject to judicial review is not only constitutionally problematic but also an archaic doctrine that warrants reconsideration by both the courts and the broader legal community.
In Republic v. Felicia Abrokwa (1989–90) 1 GLR 385, the High Court held that a nolle prosequi entered by a State Attorney is presumed to have been regularly exercised and is therefore not open to judicial review.
Similarly, in Republic v. Adu Tutu Gyamfi [Criminal Appeal No. H2/20/2005; dated 20 February 2005], the Court of Appeal, Kumasi, affirmed the position taken in Felicia Abrokwa as the correct statement of the law.
Likewise, the distinguished legal scholar and practitioner J. A. N. E. Amissah, in Criminal Procedure in Ghana (p. 22), observes that:
“No law prescribes the conditions under which it (a nolle prosequi) should be exercised or requires that he (the Attorney-General) explain the reason for doing so.” (Emphasis added)
In Gregory Afoko v. Attorney-General [2019], the constitutionality of the nolle prosequi power itself was not directly challenged; consequently, the Supreme Court declined to pronounce on that issue.
Following in-depth research and analysis, we take the position that the argument that a nolle prosequi entered by the Attorney-General is wholly immune from judicial review does not reflect a sound constitutional principle. That argument is porous, myopic, metaphysical, and founded on myths devoid of legal substance. In our view, every exercise of public power in a constitutional democracy must be subjected to constitutional scrutiny. The law must be applied equally, regardless of the status or power of the public official exercising that authority. Any contrary argument risks undermining accountability, transparency, and the rule of law, and should therefore be firmly rejected.
Our analysis adopts a modern purposive approach to constitutional interpretation and seeks to contribute meaningfully to the development of Ghanaian criminal jurisprudence. In the recent consolidated writ of Vincent Ekow Assafuah v. Attorney-General and Theodore Kofi Atta-Quartey v. Attorney-General, Suit Nos. J1/18/2025 and J1/21/2025, dated 2 July 2026, Justice Suurbaareh stated at page 78:
“Irrespective of the approach used, the purpose of interpretation should be to promote the rule of law, the values of good governance, and the advancement and protection of fundamental human rights and freedoms for the development of the people.”
Will the interpretation adopted in our analysis promote the rule of law, good governance, and strengthen Ghana's criminal jurisprudence? The answer is undoubtedly yes.
Research should not merely describe societal problems; it should contribute to solving them. The Vice-Chancellor of the University of Professional Studies, Accra (UPSA), Prof. John Kwaku Mensah Mawutor, speaking at the launch of the J.K. Horgle Transport and Logistics Centre, succinctly stated:
“Research must go beyond academic journals. It must solve real industry problems, shape policy, and create value for society.”
This research article seeks to lay a foundation for addressing one of the enduring accountability challenges within Ghana's criminal justice system and democratic governance framework. It not only challenges the status quo but also proposes a practical solution to address an identified gap in Ghanaian criminal justice jurisprudence. In doing so, it contributes meaningfully to the advancement of legal scholarship and the continued development of Ghanaian criminal jurisprudence. In fact, the approach is akin to ‘Public-Meaning Originalism’ proposed by the Yale Professor, Jack Balkin (2016).
The journal article draws inspiration from, and it is also a remnant of my PhD dissertation in Development Studies titled:
“A Comparative and Theoretical Analysis of Judicial Review in Constitutional Interpretation, Administrative Action and Human Rights Disputes: Ghana in Perspective.”
We humbly invite Judges, legal practitioners, law lecturers and professor of law, students, public interest lawyers, parliamentarians, social commentators, the general public and all persons interested in constitutional law and criminal justice to read the paper and engage with its arguments. We welcome constructive criticism, observations, and suggestions as we continue this important conversation.
If we cannot stand to fight and defend the rule of law, then the rule of law is weakened. A democracy cannot thrive when those entrusted to protect and defend it choose silence over principle. We all have a moral duty to protect our enviable democracy in one way or the other.
Please check for the citation or click the link below to read the full paper.
Appiah Larbi, G., & Nyarkoa, N. (2026). ‘Guarding the guardian of justice: A purposive interpretation of prosecutorial discretion and nolle prosequi in Ghana's criminal justice system.’ Ghana School of Law Student Journal, 10, 189–222.
Acknowledgments
Together with my co-author, we are grateful to Miss Angela Elorm Sosu-Nyaho Kcofie of the Ghana School of Law for her invaluable editorial assistance and thoughtful suggestions. We also extend our sincere appreciation to the Chief Editor Mark Addey, the Editorial Team, the GSL SRC 2025/2026 led by Nana Opoku Ware, and the entire Ghana School of Law for providing this platform for scholarly engagement and legal discourse.
Written By:
Goodnuff Appiah Larbi, (PhD).
A Professional Law Student and a Researcher
Email: aappiahlarbi@gmail.com
Author has 30 publications here on modernghana.com
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