Discontinuation of high-profile cases: Assigning reasons is like opening the Pandora’s box

The Director of Legal Affairs for the National Democratic Congress (NDC), Godwin Edudzi Tamekloe, has defended the Attorney-General’s (A-G) discretionary powers in filing a nolle prosequi to discontinue prosecutions, arguing that such decisions should not be questioned.

Speaking on the matter on the KeyPoints, Tamekloe referenced Sections 54 and 59 of the Criminal Procedure Code (Act 30) and Article 88 of the 1992 Constitution, which empower the Attorney-General to initiate and terminate prosecutions.

Tamekloe disagreed with calls for the A-G to provide reasons for discontinuing cases, arguing that such a requirement would have policy implications and could open a “Pandora’s box.”

“If you have to assign reasons for the exercise of that power, it may create unnecessary legal and political challenges. From a policy point of view, that disclosure is not material,” he argued on February 8.

According to him, these powers are rooted in history and serve as a critical policy tool for governance.

“Prosecution is a policy tool, and usually, for policy decisions, you want to give the one holding the authority a bit more flexibility. The Attorney-General can take a policy decision that, even if there is evidence of wrongdoing, for the interest of the state, the case should be ended,” Tamekloe stated.

He cited an example from the United Kingdom, where an arms deal scandal involving Saudi Arabia was halted by the UK Attorney-General due to potential implications for the monarchy.

According to him, this demonstrated that discontinuing cases is a globally accepted practice that sometimes serves the broader interest of a nation.

Tamekloe also referenced the Gregory Afoko v. Attorney-General case, where the Supreme Court ruled that while the Attorney-General has the power to discontinue cases “at any stage,” per Section 54 of Act 30, the exercise of that power must conform to the fairness provisions under Article 296(c) of the Constitution.

He noted that although Afoko challenged the fairness of the A-G’s decision to discontinue his case after a full trial, the court upheld the A-G’s authority to do so.

While acknowledging concerns over potential abuses of power, Tamekloe emphasized that the Supreme Court has provided guidance on ensuring fairness in such decisions.

He urged a broader conversation on the balance between prosecutorial discretion and accountability, rather than imposing a mandatory requirement for reasoning in every case.

His remarks contribute to the ongoing debate about the Attorney-General’s role in Ghana’s legal system, particularly in high-profile cases where discontinuations raise concerns about transparency and justice.

Christabel Success Treve

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