By: Derrick Ackah-Nyamike, Esq. and Selasi Kuwornu, Esq.
Introduction
An essential aspect of Criminal Justice is the power to commence and to terminate criminal proceedings in court. Like several other jurisdictions, in Ghana all criminal matters are commenced at the instance of the Attorney-General (A-G). Article 88(3) of the Constitution, 1992 provides that the power to initiate and conduct the prosecution of all criminal cases vests in the A-G. Although article 88(3) does not specifically mention the A-G’s power to discontinue criminal proceedings, it is presumed to be implied within his or her mandate to conduct all prosecution.[i]
Sections 54 and 59 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30), in consonance with article 88(3), provide for the power of the A-G to terminate the conduct of criminal cases either by withdrawing charges or by entering nolle prosequi. Nolle prosequi is a Latin phrase which translates as “unwilling to pursue”.
Prior to June 2019, it was prevalent judicial understanding that the entry of a nolle prosequi by the A-G could not be interrogated by any court, either by review or any other form of judicial inquiry. It was also understood that the A-G was not required to explain to the public his decision to terminate a criminal case.
On 19th June 2019, the Supreme Court delivered its ‘revolutionary’ judgment in the case of Gregory Afoko vs. Attorney-General[ii] (Afoko case), placing the exercise of A-G’s power to terminate criminal cases in the remit of executive decisions that can be interrogated by the court. The Afoko case appears to have created a paradigm shift in the aged appreciation of nolle prosequi.
Recently, the A-G has opted to explain to the public his reasons for entering nolle prosequi and withdrawals in high-profile cases, namely; Republic vs. Stephen Opuni & 2 Ors[iii], Republic vs. Samuel Ofosu Ampofo & Anor[iv], Republic vs. Cassiel Ato Forson & 2 Ors[v], Republic vs. Kwabena Duffuor & 7 Ors[vi], Republic vs. Collins Dauda & 3 Ors[vii]. In addition to governance principles of probity and accountability, the Afoko case has been advanced as justification for the A-G’s policy of explaining his decisions on cases.
In this article, we concisely discuss the judicial appreciation of nolle prosequi in key cases leading to the Afoko case. Secondly, we analyse the constitutional rationale behind the Afoko decision. We conclude by commenting on legal implications of the A-G’s ‘policy to explain’.
High-Profile Criminal Cases
There is not much literature on the nature and effect of ‘high-profile cases’ in Ghana. A high-profile case is a case that attracts a lot of public attention usually through widespread media coverage and reportage. They usually have many persons from all spheres discussing them and demonstrating keen interest in their expectant outcome. High-profile cases usually have a strain on the various parties involved, and there are questions on the impact of the heightened attention on justice delivery. The criminal cases mentioned above, in respect to which the A-G terminated, are high-profile for a few reasons. The cases involved political actors, some of whom were accused of corruption and related offences. It is for that reason that the A-G’s decision to terminate the proceedings in the cases, sparked massive debate on both traditional and social media outlets.
The Evolution of Nolle Prosequi in Ghana’s Criminal Jurisprudence
Since the coming into effect of Act 30, the A-G has wielded power to terminate criminal proceedings under sections 54 and 59 of the Act. The A-G may enter nolle prosequi for several reasons including, a defective charge, lack of evidence, new exculpatory facts, procedural error and diplomatic considerations.
It has since been the understanding that once a nolle prosequi is entered in a case, it effectively terminates that case and a judge has no business inquiring whether the entry is judicious, fair or candid. In the 1960 case of Boateng II vs. Yeboah & Ors[viii], the High Court, presided over by Acolatse J (as he then was), after assessing judicial precedent before it, ruled that the entry of a nolle prosequi effectively terminates the criminal proceedings against the accused person. The 1989 case of Republic vs. Abrokwa[ix] upheld the position espoused in the Boateng II Case.
In the 2010 case of Republic vs, Dr. Adu Tutu Gyamfi & 2 Ors[x], the Court of Appeal was invited to determine whether a tribunal erred in law when it held that a nolle prosequi entered by the A-G was void because it was not entered by the A-G himself. The Court of Appeal confirmed the position of the law that a nolle prosequi effectively terminates criminal proceedings and that any officer duly authorized by the A-G may enter the nolle prosequi.
Basically, the Boateng, Abrokwa, and Adu Tutu Gyamfi Cases, upheld the ‘do not inquire, do not question’ posture regarding the entry of nolle prosequi. They had two implications. Firstly, a trial court judge before whom a nolle prosequiis entered in a pending criminal trial has no business inquiring whether the entry of the nolle prosequi is fair, candid or just; the accused is deemed to have been automatically discharged. The second implication was that the entry of a nolle prosequi before a trial court could not be questioned by a superior court on judicial review or appeal.
Prominent jurists reasoned that the exercise of nolle prosequi is a political question and not a justiciable one, such that it is checked politically and not by the courts. A. M. E. Amissah in his often-referenced book Criminal Procedure in Ghana argued that the power of the A-G to discontinue a case by entering nolle prosequi or even a withdrawal is political in nature and so no law prescribes the conditions under which it must be exercised. Amissah reasoned that the improper exercise of nolle prosequi power by an A-G could lead to serious political consequences for the government, including even a change in government. He cited, as an example, the 1924 English situation under which an improperly exercised nolle prosequi led to the fall of the Labour Government.
Afoko Case: Revolutionary?
There has been a paradigm shift in the earlier thought that the exercise of nolle prosequi is not subject to judicial review or inquiry; And the Supreme Court’s judgment delivered on 19th June 2019 in the matter intituled Gregory Afoko vs. Attorney-General[xi] is the cause of that shift.
The brief facts of the case, deduced from the processes filed in the High Court and the Supreme Court, are that: In the dark hours of 15th May 2015, Adams Mahama, the then Upper East Regional Chairman of the New Patriotic Party, was found in his vehicle outside his house with acid wounds all over his body. He was rushed to the hospital for medical attention, but he did not survive. Police investigations led to the arrest of the plaintiff, Gregory Afoko, on 21st May 2015 as the alleged murderer of Adams Mahama. Afoko was committed by the District Court and arraigned to stand trial at the High Court, Accra. After the A-G closed her case, Afoko opened his defence and closed his case on 24th January 2019. The trial Judge adjourned the case to 20th February 2019 for addresses by the prosecution and defence, after which a date was to be fixed for summing up and then the final verdict by the jury. However, on 28th January 2019, the A-G, filed a nolle prosequi indicating her intention to discontinue the case against Afoko. The A-G subsequently re-arraigned Afoko with one Asabke Alangdi, as a co-conspirator, before the District Court, for the entire case to start afresh.
Based on the above facts, Afoko sued the A-G in the Supreme Court contending that the A-G’s exercise of the power ofnolle prosequi in his trial was inconsistent with or contravened articles 23, 11, and 296 of the Constitution. The A-G in response challenged the invocation of the Supreme Court’s jurisdiction by Afoko as improper. The A-G argued that the plaintiff’s case lay in the realm of a judicial review action, which should not be entertained under the Supreme Court’s constitutional interpretation and enforcement jurisdiction.
The Supreme Court reasoned that the A-G’s power to enter nolle prosequi or withdrawal is an exercise of discretion governed by article 296(a) and (b) of the Constitution. In the spirit of article 296 and given that the A-G has the authority to initiate criminal proceedings in the name of the Republic, a decision by him to terminate criminal cases; must be fair and candid; and must not be arbitrary, capricious or biased. Despite making that determination, the Supreme Court ruled against Afoko on the basis that he failed to demonstrate that the A-G had in fact exercised her discretion wrongly against him.
Marful Sau JSC reasoned that:
“Beside the arguments submitted to us by both Counsel on the issue of jurisdiction, we believe appropriately, that once the nolle prosequi was entered in a pending proceeding as it were, Counsel for plaintiff, could have applied to the trial High Court, to refer the issue about the alleged unconstitutional exercise of the right to enter nolle prosequi in terms of article 296, to this court, under our reference jurisdiction, under article 130(2) of the Constitution.”[xii]
Article 296(a) and (b) read as follows:
“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 wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law; …
It is therefore safe to suggest that per the Afoko decision, a person aggrieved by the entry of a nolle prosequi in a case may have judicial basis to challenge the entry on grounds that the decision was unfair, arbitrary or capricious contrary to article 296(a) and (b).
Implications of the Afoko Decision
What then is the impact of the Afoko decision on criminal practice and the justice system. Does it mean that the unquestionable exercise of the A-G’s nolle prosequi has come to an end? It appears the apex court answered this in the affirmative. This is because the Court ruled definitively that the exercise of nolle prosequi is a discretionary power subject to article 296(a) and (b). Secondly, it may be implied from the judgment that the entry of a nolle prosequi can be subject to review by courts above the trial court.
What this means for legal practitioners and accused persons is that whenever nolle prosequi is entered and they sense that the entry was unfair, arbitrary or capricious, they may pursue an action against the A-G on grounds of article 296(a) and (b). The burden lies on the accused person to demonstrate with evidence that the A-G acted with bias, unfairly, arbitrarily or capriciously in the entry of nolle prosequi. It is imaginable that where such evidence is provided, the A-G’s response may inevitably veer into explanations on why the nolle prosequi was filed to demonstrate that there was no breach of article 296. This will effectively counter the ‘do not inquire, do not question’ posture.
Despite the Afoko decision and its seemingly revolutionary appearance, a few procedural questions are glaringly outstanding. It seems unclear the exact procedural options available to a person aggrieved by the entry of a nolle prosequi. Would an application for judicial review filed before the High Court or Supreme Court, against the entry of nolle prosequiin a trial court be proper? Can the entry of a nolle prosequi in the trial court be challenged in the same court on grounds under article 296? Can the entry of a nolle prosequi be challenged on appeal? Assuming these questions are answered in the affirmative, can the courts make judicial review orders against the A-G on his power to commence and terminate criminal cases? Would that not be contrary to the mandate in article 88(3)? In fact, there is even the question of who can be deemed an aggrieved person for purposes of challenging the A-G’s entry of nolle prosequi; is it an accused person, a complainant, a victim and or a concerned citizen? This concluding question is important because despite the decision in Mbrah vs. Johnson[xiii] that the parties to a criminal case are the accused person and the Republic, the Supreme Court in the case of Republic vs. High Court, Human Right Division – Ex Parte: Naa Otua Swayne[xiv], held that complainants in criminal cases have locus standi in the area of prerogative writs, including certiorari applications.
Looking at the apparent pandora’s box, which may have direct implications on Ghana’s criminal justice system, it is not out of order for opponents to argue for the return of the ‘do not inquire, do not question’ approach to nolle prosequi.
Comparative Perspective
Historically, common law jurisdictions have similar legal frameworks as what we have described in Ghana regarding the Attorney-General’s power to end criminal cases, largely because Ghana’s prosecutorial system is modelled after the English common law system due to its colonial heritage. In the United Kingdom (UK), there is no absolute statutory duty on the A-G to provide reasons when entering a nolle prosequi. According to the Crown Prosecution Service (CPS), this power is not subject to control by the courts and is exercised “independently of Government as a guardian of the public interest.”[xv] However, the A-G remains politically accountable to Parliament and may be called upon by Members of Parliament or the House of Lords to explain the exercise of the nolle prosequi power or other prosecutorial decisions. This means that, unless questioned, the A-G is not required to provide any explanation proactively.
In response to modern demands for transparency and accountability, there have been proposals to formalize this oversight by making it mandatory for the A-G to report each use of the nolle prosequi power to Parliament.[xvi] A distinctive feature of the UK system is that, while the power to enter nolle prosequi is vested solely in the A-G, both the defence and prosecution may apply for it, and the A-G may choose to hear parties before deciding whether to exercise the power.[xvii]Regarding public explanations in high-profile cases that are ended, nothing legally prevents the A-G from offering reasons publicly. Additionally, the CPS provides detailed guidelines to prosecutors on how to exercise other forms of termination powers, including policies requiring documentation of reasons for such decisions without a need for public explanation.
Similarly, in the United States at the federal level, there is no general statutory duty requiring the U.S. Attorney General or federal prosecutors to provide a public explanation every time they decline, dismiss, or terminate a prosecution. As previously noted, prosecutorial discretion to charge and terminate cases is grounded in common law principles and constitutional limits, while Department of Justice policy (the Justice Manual) governs the need to provide and document reasons for the termination of cases, rather than mandating public disclosure.[xviii]
However, in high-profile or public-interest cases, it is common for prosecutors to issue some form of public explanation regarding the exercise of nolle prosequi or other termination powers. This practice is largely driven by the need to maintain public confidence and trust in the justice system and government institutions and often occurs in response to media and public pressure. For instance, in 2009, after the court ordered a retrial against former Senator Theodore Stevens, then-Attorney General Eric Holder chose to dismiss the charges and issued a public statement explaining his reasons.[xix] The dismissal was based on prosecutorial misconduct, specifically the failure to disclose exculpatory evidence to the defence. This decision was made in the interest of justice and to maintain public confidence in the fairness of the legal process.
It is noteworthy that the entry of nolle prosequi or dismissal of charges in the U.S. federal system is subject to court approval under Federal Rule of Criminal Procedure 48(a) and the consent of the accused person, called a defendant.[xx]
Ghana’s jurisprudence lacks mundane Parliamentary oversight as seen in the UK, and the defence cannot apply for a nolle prosequi to be entered. However, as part of internal guidelines in their Standard Operating Procedures, Attorneys do in fact write an internal memo to the A-G for his approval before filing a nolle prosequi. No such documentation is required where the A-G chooses to exercise this power of his own accord. Therefore, this new system created in the Afoko system may be the only accountability measure and fetter on the nolle prosequi power.
Probity and Accountability: The A-G’s Policy to Explain
The practice of an A-G explaining his decision on the conduct of a case is not novel. As far back as October 1976, the then A-G explained to the people of Ghana the factors that led to the entry of nolle prosequi in the case of The Republic v El Helou & Others[xxi] which the public was very interested in. The A-G’s press statement on the El Helou case reads as follows:
“As the Attorney-General, I am primarily and ultimately responsible for the prosecution and discontinuance of all criminal cases in the country. The power is conferred upon me by section 8 of the National Redemption Council (Establishment) Proclamation, 1972. I am also empowered by virtue of section 56 of the Criminal Procedure Code, 1960 (Act 30) to appoint public prosecutors. Such public prosecutors therefore are my commissioners. Any criminal case may, therefore, be referred to me for study and advice by the public prosecutors and I can also call up the docket on any criminal case for study and advice. The case of The Republic v. El Helou and Others was referred to me for this purpose. Looking at the evidence which the prosecution had to tender and having regard to the law as it stands, and all other relevant factors, I decided that the prosecution would be inadvisable. I accordingly endorsed the recommendation of the Director of Public Prosecutions that the case be withdrawn. I am satisfied that no impropriety has been committed by the Director of Public Prosecutions or any other officer of my department in connection with this case. I realise, having regard to the present state of the law, both judicial and statutory relating to the importation and exportation of currency, that there are several loose ends of the law which must needs be tightened. I have therefore, ordered a comprehensive review of the law and I shall soon submit my recommendations for appropriate actions to the Government.”
Also, in April 2015, the A-G entered a nolle prosequi in the rape case against well-known journalist, Kwasi Kyei Darkwa. The media reported that the A-G gave reasons in court, for the entry of the nolle prosequi. It was stated that the alleged victim, who was not in the right frame of mind, was no longer interested in testifying in the matter.[xxii]
In the spirit of enhancing accountability, the current A-G, Dr. Dominic Akuritinga Ayine has defended a policy of explaining his decision to enter nolle prosequi and withdrawal in high profile criminal trials. Aside that, the A-G has updated the public on the status of pending high-profile criminal cases. There exists no constitutional or statutory provision, requiring the A-G to explain to the public his decisions on cases, especially on his entry of nolle prosequi or withdrawal in cases. This policy decision does not create binding legal expectations for this A-G or future A-Gs to explain prosecutorial decisions to the public.
The current A-G has religiously executed the policy to explain. His policy sits within the Government’s accountability framework. Arguably, 2025 has seen the most press releases and engagements by the current A-G than any other under the Fourth Republic. In that vein, there has been increased public discourse and debates on the A-G’s cases. It has resulted in education of the public on the cases, criminal procedure and justice and generated discussions on possible reforms to the criminal justice structure. It has also developed a culture of constructive criticism of decisions by the A-G. Indeed, the policy fits well within the principles of probity, accountability and rule of law under the Constitution.
Despite the obvious legal and educational benefits of the policy to explain, it has its political downside, as was observed in the El Helou case on which Amissah reports that the explanation given by the A-G did not satisfy the public leading to a lot of criticism. This A-G has also experienced his fair share of similar criticisms for the explanations provided in some of the cases. Perhaps the policy to explain must be accompanied by more public engagement on the issues that the public may not be privy to.
Conclusion
Although not legally required, it is indeed consistent with the letter and spirit of articles 88(3) and 296 of the Constitution for the A-G to explain his reasons for entering nolle prosequi and withdrawals in certain cases. It is consistent with the constitutional principles of probity and accountability and in line with best practices in criminal prosecutions. Although commendable and welcomed, it is not going to be without challenges.
[i] See Gregory Afoko vs. Attorney General [2020] Crim. LR 367. Marful Sau JSC reasoned that “upon careful reading of article 88(3) of the 1992 Constitution and Section 54 of the Criminal and Other Offences (Procedure) Act, 1960, we are convinced that the power of the defendant [A-G] to enter a nolle prosequi is implied and inherent in article 88(3).”
[ii] [2020] Crim. LR 367 at 375.
[iii] Case No.: CR/158/2018, HC
[iv] Case No.: 0385/2019, HC
[v] Criminal Appeal No: H2/22/2023 dated 30th July 2024, CA. The A-G withdrew a criminal appeal filed before the Supreme Court against the judgment of the Court of Appeal in which the accused persons were acquitted and discharged after a finding that a submission of no case to answer had been made against the accused/appellants.
[vi] Case No.: CR/0248/2020, HC
[vii] Case No: CR/0673/2021, HC
[viii] (1960) GLR 17
[ix] (1989-90) 1GLR 385
[x] [2010] DCLA 3652
[xi] [2020] Crim. LR 367 at 375
[xii] Articles 2(1) and 130(2)(b) empower the Supreme Court to determine whether an act or omission of any person contravenes a provision of the constitution, in this case, article 296.
[xiii] [1973] 2 GLR 213
[xiv] (J5/8/2015) [2015] GHASC 10 (19 February 2015)
[xv] Crown Prosecution Services. https://www.cps.gov.uk/legal-guidance/termination-proceedings-including-discontinuance.
[xvi] United Kingdom Parliament. https://publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/8052002.htm?
[xvii] United Kingdom Parliament. https://api.parliament.uk/historic-hansard/written-answers/2004/mar/05/r-v-allen.
[xviii] U.S. Department of Justice, Justice Manual. https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution.
[xix] U.S. Department of Justice, Archives. https://www.justice.gov/archives/opa/pr/statement-attorney-general-eric-holder-regarding-united-states-v-theodore-f-stevens
[xx] https://www.law.cornell.edu/rules/frcrmp/rule_48
[xxi] Referenced in the Afoko case and A. M. E. Amissah (1982), Criminal Procedure in Ghana, Sedco Publishing Limited. A deportation order (EI 135) was issued against Michel Camille El Helou in 1976.
[xxii] GhanaWeb (2015) ”State drops rape charge against kkd’ < https://www.ghanaweb.com/GhanaHomePage/NewsArchive/State-drops-rape-charge-against-KKD-355602 > (last accessed 21/08/2025)
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