Why Gregory Afoko v Attorney-General Poses a Threat to the Progress Made in Ghana’s Criminal Justice System

By: Seth F.T. Mireku Jnr, Ghana School of Law

Introduction

It is incontestable that Ghana’s criminal justice system is beleaguered with deficiencies that hinder the smooth, effective and expeditious delivery of justice. These deficiencies include the slow pace of investigations by investigative bodies, the discharge of accused persons for want of prosecution and the logistical challenges facing the prison service and other relevant bodies.

These challenges notwithstanding, Ghana’s criminal justice system has made some progress – if not de facto, at least, de jure. This is evidenced by the legislations handed down over the years. In 1853, an ordinance created courts to handle criminal and civil issues. In 1892, a criminal code was introduced in Ghana. The Criminal Code had originally been drafted in 1877 and was based on the English criminal code and common law tradition[1]. These legal frameworks culminated in the passing of the Criminal Offences Act, Act 29 and the Criminal and Other Offences (Procedure) Act, Act 30 of 1960.

The constitution also cannot be taken for granted. The 1992 Constitution contains elaborate provisions that direct impact criminal justice delivery. Articles 19 (Right to fair trial) and 14 (Right to personal liberty) under Chapter 5 of the Constitution are typical examples. It is important to note that similar provisions were not present in earlier Constitutions until the 1969 Constitution.

This article examines the case of Gregory Afoko v Attorney General within the context of the progress made in Ghana’s constitutional journey. It is the opinion of the author that the Afoko case poses a threat to the progress made in Ghana’s criminal justice system.

Laying Emphasis on the progress chalked

Ghana’s Supreme Court has handed down a number of decisions which have contributed immensely to the progress of the country’s criminal justice system. The Republic v Eugene Baffoe –Bonnie and 4 Ors  is one of such examples.  In this case, the Supreme Court was faced with the question whether the constitutional requirement of providing accused persons with adequate facilities to prepare their defence included the right to offer accused persons all the document that the prosecution intended to rely on. The Prosecution responded in the affirmative. The Supreme Court noted that:

“…..we are of the view that access to the administration of justice and the enforcement of the constitutional right to fair hearing shall be enforced in a manner that ensures that no individual is deprived, in procedural terms, of his/her right to seek justice”.

The Court further held that an accused person is entitled to be given or have access to copies of witnesses’ statements, copies of documents and exhibits in the possession of the prosecution, including materials they do not intend to tender before a trial court. Following this decision, a practice direction on disclosures and case management in criminal proceedings was formulated to fulfill the overriding objective to ensure that criminal cases are resolved fairly, justly, efficiently and expeditiously.

Why Afoko v Attorney-General is inconsistent with our progress

Whiles the Court’s decision in Baffoe-Bonnie can be considered as progressive in every sense of the word, the same cannot be said of the case of Afoko v Attorney-General.

Rather, this decision poses a danger to the progress of our criminal justice system. This case was concerned the Attorney-General’s power to enter nolle prosequi and whether there were limits to its invocation. The latin maxim nolle prosequi generally means “to be unwilling to pursue”. It also means there would be no prosecution. And it is filed to terminate pending criminal proceedings against an accused person.  When nolle prosequi is filed in a case the accused person is discharged by the court. However, it does not bar his subsequent prosecution for the same offence on the same facts[2].

As stated by the Supreme Court in the much-celebrated case of Tuffour v Attorney General,[iii] the Constitution, inter alia serves as the fountainhead that each organ of government derives their authority from. The Attorney General, as an appendage of the Executive derives her authority from the Constitution – Article 88 of the 1992 Constitution to be specific. It spells out all the primary and traditional functions that the Attorney General must exercise. As such, the legitimacy of any power exercised by the Attorney General must be rooted in article 88. Article 88 (3) and (4) of the 1992 Constitution, provides as follows:

‘’(3)The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorized by him in accordance with any law.’’

That the Attorney General bears the power to enter nolle prosequi is trite knowledge. This power is implicit in Article 88(3). The Supreme Court, speaking through Marful-Sau JSC had this to say about the Attorney- General’s power to enter nolle prosequi:

“… we are convinced that the power of the defendant [The Attorney General] to enter nolle prosequi is implied and inherent in article 88(3). Our assertion is based on the fact that, the Constitution has not by any express provision taken away the power of nolle prosequi, provided under section 54 of Act 30.  It is also an undisputed fact, that the entry of nolle prosequi, is one of many acts that the defendant is legally entitled to engage in during criminal prosecutions. By the said article, the defendant herein is constitutionally mandated to initiate and conduct all criminal prosecutions in the country.”[iv]

Whiles the power of nolle prosequi is implied in Article 88(3) of the Constitution, it is expressly provided for under section 54 (1) of the Criminal and Other Offence (Procedure) Act, Act 30 of 1960, as follows: –

“In a criminal case, and at any stage of a criminal case before verdict or judgment, and in the case of preliminary proceedings before the District Court, whether the accused has or has not been 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.’’

Section 55 of Act 30 however allows the Attorney General to vest the power to enter nolle prosequi in a person appointed to sign indictments or to represent the Republic at trials on indictment, and that those powers may be exercised by that person accordingly. Thus in Republic v Adu Gyamfi Tutu & 2 Ors[v], it was established that a nolle prosequi can be entered by a person on behalf of the Attorney General without the necessity of filing a written notice at the registry of the court.[vi]

It is important to note that the power to enter nolle prosequi is discretionary in nature. As a discretionary power, it is appropriate to assert that this power is amenable to article 296 of the 1992 Constitution. Article 296 provides the constitutional framework that governs the exercise of discretionary power. The article provides as follows:

‘’296. Where in this Constitution or in any other law discretionary power is vested in any person or authority—

1. a) that discretionary power shall be deemed to imply a duty to be fair and candid;

2. b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and

3. 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 or that other law to govern the exercise of the discretionary power.’’

Whilst the subject of whether the Attorney-General’s power of nolle prosequi can be subject to the constitutional provisions in Article 296 has been the subject of numerous academic discussions and debate, the opportunity presented itself in the case of Gregory Afoko v Attorney General.

Here are the brief facts: The Plaintiff was arrested on suspicion of murdering one Adams Mahama, after pouring acid on the said Adams leading to his death. After investigations and committal proceedings, the plaintiff was arraigned to stand trial at the High Court, Accra for the offence of murder. The trial was completed. Next stage was the filing of addresses. But before this could be done, the Attorney General filed a nolle prosequi indicating her intention to discontinue the case. The Attorney-General subsequently re-arraigned Mr. Afoko with one Asabke Alangdi before the District Court, Accra for fresh committal proceedings.

Following this exercise by the Attorney General, the plaintiff, Gregory Afoko invoked the original jurisdiction of the Supreme Court mainly for a declaration that the nolle prosequi entered by the Attorney- General is in contravention of Articles 23, 11 and 296 of the 1992 Constitution. The substantive issue that the apex court had to resolve per the memorandum of agreed issues was:

“Whether or not the exercise of the power of nolle prosequi by the Attorney- General is subject to the requirement of articles 296 (c) and 11(7) of the Constitution.”

Before delving into the issues, the Supreme Court noted as follows:

“We will soon address the issue raised concerning article 296(c), but before then we shall briefly comment on how Counsel for plaintiff failed in his reliance on article 296 (a) and (b), which insist that such discretionary powers are exercised fairly and not arbitrarily, capriciously and biased. The plaintiff did not in his statement of case properly make out a case of bias, unfairness, arbitrariness or capriciousness in the entry of nolle prosequi by the defendant. Indeed, from the processes filed in this case, the plaintiff failed to adduce any evidence or allege any conduct on the part of the defendant in the exercise of her mandate, that could be used to measure the standard set by article 296 (a) and (b) of the Constitution.”

This dictum suggests that the Supreme Court in principle agrees that the Attorney General’s power to enter nolle prosequi cannot be said to be absolutely immune to review with article 296. It is rather unfortunate that the plaintiff limited his case to only article 296 (c) instead of extending it to include article 296 (a) and (b) as well for the Court’s determination.

Nonetheless, in addressing the substantive issue which was only related to article 296 (c), the Supreme Court held that the exercise of the power of nolle prosequi is not subject to the requirements of articles 296(c) of the Constitution. The Court followed the precedent in Ransford France v Electoral Commission & Attorney-General to make this holding.

In the case of Ransford France (No. 3) v. Electoral Commission & Attorney-General[1], the court speaking through Dr. Date-Bah, JSC, delivered at page 723 as follows: –

“We would continue to be persuaded of the need for the Supreme Court to interpret the Constitution as a living document, so to speak. This remains the preferable route to distilling the right meaning from the 1992 Constitution. Accordingly, article 296(c) has to be interpreted as part of a living Constitution that provides a workable and functional framework for governance in Ghana. An interpretation that leads to nuclear meltdown, as it were, of government should be avoided. That is why the cue given by Akufo- Addo, CJ in the Captan case(supra) needs to be taken up. This court should follow the highly persuasive authority of Captan. The obligation to make regulations should be limited to discretion which is quasi-judicial situations. By that we mean where adjudication is involved.’’

It can be distilled from this dictum that upon applying a purposive interpretation for article 296 (c), Date-Bah JSC was of the view that article 296 (c) must be applicable to only discretion which is quasi-judicial situations. Following this reasoning by the renowned Judge, the majority in Gregory Afoko, took the view that the discretion exercised by the Attorney General to file nolle prosequi, among others, is executive in nature and should not be subject to article 296 (c), of the Constitution. To hold otherwise, as indicated, will impede criminal prosecutions, since every discretion to be exercised in the conduct of criminal trials, will have to be preceded by the publication of a Constitutional Instrument.

Pwamang JSC opted for a different route in this case. He opined as follows:

“The purpose of Article 296(c) is to infuse transparency in the exercise of discretionary powers and thereby check abuse of discretion by those upon whom it is conferred. In the case of nolle prosequi, with which we are concerned in this case, published regulations would assure the public that the Attorney-General can be held legally accountable and furthermore, published regulations would provide a framework within which, if the exercise of the discretion of nolle prosequi is challenged, a court can judge the fairness and reasonableness of the nolle prosequi on a case-by-case basis.”[vii]

He was of the view that there are certain species of executive discretionary powers that were intended to be covered when the framers of the Constitution, 1992 inserted the provision in Article 296(c). According to him, nolle prosequi is one of such executive discretionary powers. He holds the view that nolle prosequi is not one of those regular duties that an Attorney-General performs in the course of her daily work. It is a discretionary power that is exercised only from time to time, supposedly in the public interest, and after taking into consideration a number of weighty factors.

The author subscribes to Pwamang JSC’s opinion in Afoko vs AG. The Attorney-General’s functions may not be quasi-judicial in nature but I do not think the function she exercises to discontinue cases must be equated to other non-quasi-judicial functions that are not amenable to article 296 (c) per the aforementioned precedents.

I hold the view that the discretionary powers that were excluded from control by article 296 (c) in Ransford France and Captan are not parri passu with the AG’s discretion to enter nolle prosequi. The AG’s discretion in this regard is sui generis. It is intimately linked to the right to fair trial and the public’s perception of the administration of justice in criminal matters. The author submits that the fear of a supposed nuclear meltdown of governance as described by the eminent Date-Bah JSC in Ransford France must not be a hindrance to the duty to preserve inalienable rights such as the right to fair trial and also the duty to boost a positive perception about the administration of justice in the eyes of the public. The exercise of power in an unruly and arbitrary manner must be attracting more fear and concern than a system and its framework, albeit being bureaucratic, that is put in place to curb arbitrariness.

The Supreme Court has held in a litany of cases including the very recent one of NDC v AG & EC and Mark Takyi-Banson v EC & AG[viii] that the Constitution must be read as a whole. As such, when article 19 is read together with article 296, particularly article 296 (c), it suggests to the author that the right to fair trial, guaranteed under article 19 will be desecrated if the AG’s power to enter nolle prosequi is rendered immune to article 296 (c). Such an exclusion, in my humble view only provides an avenue for the Attorney-General to arbitrarily enter nolle prosequi to the detriment of the right of the accused to fair trial, notably the right to be tried within a reasonable time, since there is no specific instrument to govern how the nolle prosequi powers should be exercised in a non-arbitrary manner.

An accused person being tried within a reasonable time is one of the essential rights provided in the Constitution. This right is the reason why the Supreme Court in the case of Republic v Eugene Baffoe-Bonniedelivered a decision leading to the formulation of a practice direction for case management conferences to deal with interlocutory matters before trial. This was to create space for courts to expeditiously deal with substantive issues at trial.

We cannot make this significant progress in our criminal justice system only to later allow the thriving of a ministerial discretion that has the potential to clog our progress by injuring accused persons’ right to be tried within a reasonable time and extensively, waning public confidence in our criminal justice system. The reasonableness of the time within which an accused person must be tried, as provided in article 19 (1) of the 1992 Constitution will be gravely affected if the Attorney-General is allowed to use the nolle prosequi window to arbitrarily discontinue cases irrespective of the stage of the trial and with the same consequence, without any legislative and judicial check. This dangerously creates room for the reasonableness of the time of one’s trial to be at the mercy of the Attorney-General. Also, where the public notices that cases that have been heard in court for months and sometimes years are being discontinued or withdrawn, it expectedly diminishes their confidence in our justice system, providing some purported basis for them to resort to instantaneous alternatives such as mob justice.

Again, as recommended by Pwamang JSC in Afoko vs AG, an alternative or complementary means of controlling the Attorney-General’s discretion to enter nolle prosequi is to, by way of an amendment, equate the effect of withdrawal of criminal cases at the District Court to the effect of nolle prosequi at other courts. Per section 59 of Act 30, a criminal case being tried at the District Court can be withdrawn with the consent of the Court, or on the instructions of the Attorney-General at any time before judgment is pronounced. If it’s withdrawn after prosecution closes their case, the accused will be acquitted and discharged. On the other hand, for nolle prosequi, at any stage it is entered, the accused will only be discharged. Per section 54 of Act 30, under no circumstance will the accused be also acquitted if nolle prosequi is entered. If the office of the AG becomes fully aware that where a case is discontinued at a stage that will lead to both the acquittal and discharge of an accused person, they will be better guided in how to enter nolle prosequi because when acquitted, double jeopardy (autrefois acquit) will apply if the Republic wants to later prosecute the accused again on the same set of facts. This will also encourage more diligent work by the office of the AG and investigative bodies before initiating prosecutions.

Conclusion

The case of Republic v Eugene Baffoe-Bonnie which has been elucidated above, coupled with other decisions such as Martin Kpebu (No. 1) v Attorney- General (No. 1)[ix], Martin Kpebu (No. 2) v Attorney- General (No. 2)[x] and the recent one- Martin Kpebu (No.3) v Attorney- General (No.3)[xi] are all decisions that are indicative of a significant growth in Ghana’s criminal justice system.

Unfortunately, as I’ve attempted to demonstrate above, Gregory Afoko is an odd one. It can plough back the objectives the aforementioned decisions seek to fulfill if appropriate steps are not taken to curb the perceived consequences.

The author finally submits that even in the absence of a constitutional instrument in pursuance of article 296 (c), the entry of nolle prosequi must be made subject to the leave of the court where the court will consider the reasons canvassed by the Attorney General or her acolyte on a case-by-case basis. In doing this, the court is expected to only grant the nolle prosequi in rare and reasonable circumstances such as the demise of the accused person. But where the reasons for seeking the entry of nolle prosequi are of a nature that exposes the Republic for not demonstrating reasonable diligence before initiating the prosecution, then they ought to be denied the entry of nolle prosequi as a means of encouraging sufficient and reasonable diligence before initiating prosecutions.

[1] {2012} 1 SCGLR 705

1 Obi N.I. E. World Factbook of Criminal Justice Systems, Ghana. [Online]. [Accessed 20 November 2020]. Available from: bjs.gov > pub >pdf > wfbcjsg

[2] Henrietta J.A.N Mensa-Bonsu, The Annotated Criminal Procedure Code of Ghana (Act 30) @ 34

[iii] [1980] GLR 637

[iv] Gregory Afoko v Attorney-General (SC, 19^TH June 2019)

[v] Criminal Appeal No. H2/20/2005, Unreported 26^th March, 2010

[vi] Gai, A.F 2020. Taming An Unruly Horse: Examining The Attorney-General’s Power of Nolle Prosequi In The Light Of 1992 Constitution; Gregory Afoko v. Attorney-General. Ghana School of Law Student Journal. 147, pp.137-158. Vol V.

[vii] Supra

[viii] No. J1/9/2020, Unreported 25^th June, 2020

[ix] [2015-2016] 1 SCGLR 143

[x] [2015-2016] 1 SCGLR 171

[xi]No. J1/22/2016, Unreported 18^th December, 2019