Supreme Court dismisses Afoko’s application challenging AG’s 'Nolle Prose qui'

A seven-member Supreme Court panel presided over by Justice Julius Ansah has by unanimous decision dismissed an application by Gregory Afoko challenging the fairness of the decision of the Attorney General to enter a “Nolle Prose qui” after he closed his case in his ongoing trial for the murder of the later Upper East Chairman of the New Patriotic Party (NPP), Adams Mahama.

It was the contention of Mr Afoko that the AG’s decision is unfair and unjust and that same should be declared null and void.

Additionally, he claimed that the AG per the provision of Article 296 of the 1992 did not exercise the discretionary power given to her office to enter “Nolle Prose qui” [Discontinuation of a Criminal Case].

Article 296 of the 1992 constitution states: “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; 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 or that other law to govern the exercise of the discretionary power.”

In their Judgement, the seven-member Supreme Court panel affirmed that the decision to enter a “Nolle Prose qui” is solely an executive decision that is conferred on the Attorney General.

The Court ordered that the decision of the AG to enter a “Nolle Prose qui” irrespective of the stage of the trial of Mr Afoko had reached is immaterial. “The application is thus dismissed,” the Court said.

Background

Alhaji Adams Mahama suffered severe bodily injuries after a substance suspected to be acid was allegedly poured on him in front of his house in Bolgatanga on May 20, 2015.

He later died from the injuries at the Bolgatanga General Hospital. Gregory Afoko’s trial started in 2016 and was nearing completion after the prosecution and the defence had closed their cases. On January 26, 2019, Afoko closed his case after he and his brother, John Ishmael Afoko, had testified.

The prosecution, led by a Chief State Attorney, Mr Matthew Amponsah, had called 14 individuals as prosecution witnesses. Subsequently, the presiding judge, Mr Justice Lawrence Mensah, directed the two parties to file their written addresses.

However, on January, 28, 2019, the Attorney General filed a nolle prosequi to discontinue the trial following the arrest of the other suspect, Asabke Alangdi, who had been on the run since the incident occurred in 2015.

Afoko and Alangdi were then put before the Accra Central District Court on provisional charges of conspiracy to commit murder and murder for committal proceedings, which are a prelude to the trial at the High Court.