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30.04.2019 Feature Article

The Attorney General And The Nolle Prosequi -The Position Of The Law

The Attorney General And The Nolle Prosequi -The Position Of The Law

For some weeks now, there has been spirited public criticism concerning what appears to be an irresponsible comment on the part of the senior minister, Mr. Osafo Marfo in respect of his justification as to why our Attorney General activated her prosecutorial discretion in discontinuing Aisha Huang's at the high court. First of all, it was wrong for the senior minister to explain to the general public which falls outside his purview. He should have referred the question to the Attorney to explain the basis upon which the galamsey queen had her case discontinued for proper legal opinion.

Nolle Prosequi generally is a legal term of art and a Latin legal phrase meaning "be unwilling to pursue", a phrase amounting to "do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor 's decision to voluntarily discontinue

criminal charges either before trial or before a verdict is rendered.

The origin of the office of Attorney-General is usually traced to the thirteenth century when, as King’s Attorney or King’s Serjeant, he was responsible for maintaining the interests of the King in the royal courts. The first reference to a regular Crown counsel appeared in the reign of Henry III when it was recorded that one Lawrence del Brok pleaded for the King from 1253 to 1267. However, the office appears to have become a fixed institution only after the accession of Edward IV in 1461, when John Herbert (the first person to be called ‘Attorney-General’) was appointed as the King’s principal law officer.

The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.

In Ghana,nolle prosequi is an exercise of discretion rooted in section 54 of the criminal code,1960(Act 30). The exercise of discretion conferred on any public officer or an administrative body ought to be in tandem with article 296 of the constitution of Ghana as a measure of standard.

For the purpose of education,I shall reproduce the provisions of article 296 of the constitution of Ghana with a supportive argument. It reads "

Where in this Constitution or in any other law discretionary power is vested in any person or authority -(a) that discretionary power shall be deemed to Imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be m accordance with due process of law; and (c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution,

( j) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be perfonned by the person for the time being charged with the perfonnance of the functions of that office.

Kayode Eso JSC in state v S.O IIoris held that" in filing a notice of discontinuance in respect prosecution, the Attorney General is presumed to have considered unless contrary is shown"public interest and the interest of justice and the need to prevent the abuse of legal process.

Flowing from the above ,It is well settled law that, exercise of discretion may suffer judicial review when it is faulted on the ground of malafide, unreasonableness, arbitrariness.

Moreover, Nolle prosequi as a declaration can be made by a prosecutor in a criminal case either before or during trial, resulting in the prosecutor declining to further pursue the case against the defendant. The declaration may be made because (a)the charges cannot be proved because the evidence is too weak to carry the burden of proof, (b) the evidence is fatally flawed in light of the claims that are brought, (c) the prosecutor becomes doubtful that the accused is guilty, (d) the defendant's innocence is proved, (d) the defendant has died.

It has also been used when a criminal charge is brought up against a defendant when the prosecutor on a state charge for the same offense no longer wishes to pursue the case. Usually, that happens when the state prosecutor is content with the sentence on the federal charge and has no need to go any further with the original case.

The pre-eminent position of the Attorney General under common law is quasi judicial, generally as principal legal adviser to the Government. The mandate of the Attorney is clearly stated in article 88 of the constitution of the Republic of Ghana. In many jurisdictions, including Nigeria,the constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosections.However,despite this statutory basis,the courts traditionally bestow the powers with orthodox common law immunity from judicial review of the prerogative powers.

This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law with a clear position that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review.

The decision whether or not to prosecute … and, if so, for what offence, or whether to use an out of court disposal, is a quasi-judicial function which requires the evaluation of the strength of the evidence and also a judgment about whether an investigation and/or prosecution is needed in the public interest. Prosecutors take such decisions in a fair and impartial way, acting at all times in accordance with the highest ethical standards and in the best interests of justice. In this way, prosecutors are central to the maintenance of a just, democratic and fair society based on a scrupulous adherence to the rule of law.

The Attorney General of the Republic of Ghana had no justifiable grounds vis a vis the required standard in the exercise of discretion when she discontinued the case against the Aisha Huang.

Dawda Eric(Equity)
Citizen Vigilance for Justice
30th April,2019
[email protected]

Dawda Eric
Dawda Eric, © 2019

This author has authored 66 publications on Modern Ghana.
Author column: DawdaEric

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