I suppose I, having read the *Special Prosecution Act, ACT 663*, can be in the position to also say ‘some’ about the special prosecution brouhaha – not as legal practitioner or any political think tank but as a citizen and a student of the law.
For the past 2 days, after the appointment of Mr Martin Amidu as the special prosecutor, there has been, among the youths, a number of comments on our WhatsApp platforms. Some of the comments are comic/jokes, others are informatory and some also ask questions.
One of the comments that caught my attention and propelled me to put up this piece is the one that read _“what will be the effectiveness of this office (special prosecution) when the AG can enter nolle prosequi at any time to prevent Martin Amidu from prosecuting a case”_.
Although that will be the focus of my article, I wish to, however, comment on the reasonable suspicion of corruption clause in the Act. I am yet to come across a criminal law that does not have the provision of reasonable suspicion.
For the purposes of prosecution, should it be suspected that a public official, for instance, per his or her income or financial status or job, cannot afford the cars, mansions or the luxurious life he is enjoying, the reasonable suspicion clause can afford the prosecutor the room to investigate and initiate proceedings.
The old common law principle of criminal jurisprudence always places the burden of proof on the prosecutor. The accused has the right not to add to prosecution (right to remain silent) until a predicate has been made against him.
However, I believe per the objectives of the special prosecution law, if the SP file its case to the court and the reasons/grounds/details for the reasonable suspicion are stated in the accompanying affidavit, the suspected official now has the burden to prove or otherwise – this is certainly not a cause for any alarm or worry
It must be noted that in Ghana, corruption as a criminal offence, to all intents and purposes, is a ‘political lexicon’. By this, I mean that only public officials can be said to have criminally engaged in corruption in the remit of the criminal laws. Thus, a private engagement or act of a private individual without the involvement of any public official may only constitute a moral wrong.
The term *NOLLE PROSEQUI* means that the prosecutor hereby discontinues with the prosecution or the case. It somewhat amounts to a dismissal of charges preferred by the prosecution. It can be entered any time before the decision of the court/judgement.
The power to prosecute is a sole preserve of the Attorney General given to him by article 88 of the 1992 constitution even though 88(4) allows the delegation of that power.
In the same vein the AG has the power to discontinue the prosecution of any case by entering a nolle prosequi at any stage of the trial. *Section 54 of Act 30* makes it clear that at in any criminal case and at any stage the AG may enter a nolle prosequi.
An entry of a nolle prosequi by the AG is the state’s position or intention to discontinue the prosecution of a particular case as stated by in the case of *Republic v Abrokwa 1 GLR* that “a nolle prosequi is the state itself expressing willingness not to prosecute the case”
By principle/convention, the AG is not bound to explain to the court why he enters a nolle prosequi. No law presecribes the conditions under which that power should be exercised. It has also been confirmed by the court of Appeal since 2010 that no written authorization is required from the AG in entering nolle prosequi.
In the Woyome case the supreme court pointed to the AG that “the AG has its own hands and control that it can deploy when it wants to truncate a criminal case”.
Unlike withdrawal which has the legal effect of possible acquitting and discharging and may therefore offend the principle of double jeopardy because of the legal protection known as autrefois acquit and autrefois convict, nolle prosequi does not necessarily acquit.
Per the supra descriptions, I could not agree more that the power to enter nolle prosequi is political in nature
However, the availability of the does not connote arbitrary usage. I believe this discretionary power is somewhat subject to the provisions in article 296 of the 1992 constitution which states that ‘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* (emphasis mine)
b). the exercise of that discretionary power shall not be arbitrary, capricious or biased whether by resentment, prejudice or personal dislike
Even so, the nature of the office of the special prosecutor, the mandate of the Act, the caliber of the person holding the office (Mr. Martin Amidu) should not even give room for anyone young person to even think that the AG will be unreasonably entering nolle prosequi just because that power is available
The long title of the Special Prosecution Act makes it imperative on the office to prosecute specific cases – which means that frivolous and vexatious cases will definitely not call for the attention of the special prosecutor. Clearly, all the cases that will be prosecuted will be serious corruption cases that have serious consequences on the economy and the people of Ghana and at the same time the public has interest in.
Therefore, as far as the prosecution by the special prosecutor is concerned, it will be in the best interest of the government as well to give enough convincing reasons to the public for any nolle prosequi he enters. Because it will be politically suicidal to discontinue a case the entire citizenry has interest in without any convincing reasons.
I don’t even think any serious political party will want to go in that direction. The former AG set the precedence with respect to the KKD case – the AG made public pages of reasons why she entered the nolle prosequi, which I believe should be the best practice.
Again, the person who has been nominated to hold that office a learned man who, per what I have read, is always willing to go any extent of challenging decisions which he believes are contrary to his convictions or the public interest.
This is a man who, after a judgment has been entered against him by the Supreme Court in a unanimous decision, still files for a review to get the Supreme Court to say that it erred in its previous decisions (in the recent Woyome multiple suits)
What is not the guarantee that such a man will be willing to challenge a malicious or capricious nolle prosequi stopping him from prosecuting a case. In fact, his intention to go that extent could be drawn from his recent article on ‘Woyome’s nolle prosequi’ titled ‘*_Martin Amidu’s perspective on the Nolle Prosequi In The Woyome’s Case_*’ (published by Ghana web on 11th June 2012)
In conclusion, the article sought to communicate the fact just by mere fact the AG is fortified with the power of nolle prosequi to discontinue any prosecution will not in any way be used as conduit to bar the SP from prosecuting cases that may be against the members of the AG’s political party because:
1.The power to enter NP is political in nature. Although it has no legal rules prescribing the use of such power article 296 of the constitution may serve as a check and a bar on the AG
2.The nature of the cases the OSP will be handling would definitely be cases the public has interest in and hence it will be politically suicidal for the AG to enter nolle prosequi without proper and convincing reasons to the public, especially cases that affect his ‘people’
3.The caliber of the person holding that office may be willing to challenge that entry if he believes it is malicious or against public interest