The Nolle Prosequi Conundrum: The perspective of a law student in response to lawyer Richard Obeng Mensah

I, truly, admire your exceptional writing skills and the way you craft your pieces, making them not only insightful but also deeply engaging to read. Your ability to weave biblical principles into contemporary legal discourse is particularly remarkable, adding a unique and thought-provoking dimension to your work. This distinctive approach has always captivated me, and I have long desired to engage more deeply with your ideas.

Your writing flows so seamlessly that I consider myself a secret admirer of your work. However, I must respectfully express a differing perspective regarding your recent publication titled “The Initial Failings of the Attorney.” While I hold your work in high regard, I find myself compelled to offer an alternative viewpoint on this particular subject.

Your question of whether or not the Attorney General is interested in prosecuting some miscreants

The labyrinthine nature of electoral violence cases in Ghana presents a formidable challenge, akin to navigating a dense, murky forest where the path to justice is shrouded in uncertainty. These cases often involve a tangled web of actors, motivations, and chaotic circumstances, making it difficult to untangle the truth and hold perpetrators accountable. Despite the frequent occurrence of political violence during and after elections—particularly in hotspot areas like Gushiegu, Agbogbloshie, Chereponi, Techiman South, and Odododiodioo—many cases fail to result in successful prosecutions.

They are either lost or discontinued by the Attorney General’s (AG) office due to insufficient evidence, witness intimidation, or the inability to identify specific culprits. This recurring trend not only undermines public trust in the justice system but also perpetuates a culture of impunity, where perpetrators of electoral violence operate with little fear of consequences, thereby threatening the stability and integrity of Ghana’s democratic processes.

Against this backdrop, the current Attorney General, Dominic Ayine, appears to be adopting a more cautious and deliberate approach to addressing these complex cases. Recognizing the systemic failures of the past—such as weak evidence gathering, premature prosecutions, and the chaotic nature of electoral violence—the AG seems determined to ensure that cases are meticulously investigated and properly built before proceeding to court.

This approach reflects a deep understanding that rushing to prosecute without solid evidence not only leads to acquittals but also erodes public confidence in the justice system. By prioritizing thorough investigations, witness protection, and the gathering of incontrovertible evidence, the AG aims to break the cycle of impunity and ensure that perpetrators of electoral violence are held accountable.

This methodical strategy, though time-consuming, is crucial for restoring faith in the legal system and deterring future acts of political violence. Base on that, I would caution that it is premature to judge the Attorney-General’s performance at this early stage.

The word “initial” as used in your article itself acknowledges that this is just the beginning of his tenure. It is essential to give him the time and space to settle into his role, assemble his team, and develop a strategy to tackle the complex challenges ahead. If it is just a comment you need from him to reassure Ghanaians of his commitment to Justice, then the posture of the current government since its inception averse their readiness to tackle criminal and corruption related issues devoid of party colorations.

On your question of why nolle prosequi on cases such as Ato Forson vrs the AG

Considering the complexities and controversies surrounding the case, is the current Attorney-General’s decision to file for a nolle prosequi not a justifiable one?

In the said case, one of the accused persons, Richard Jakpa, testified in an open Court that the former Attorney-General Godfred Dame had called and texted him just to accept to implicate the then minority leader, now current Finance Minister, Hon Ato Forson. Does this not raise concerns about the impartiality of the prosecution? And does that not make it politically motivated?

Again, Kennedy Agyapong, a notable member of the then NPP government, had publicly expressed his disagreement with the substance of the case.

Do these factors not contribute to an atmosphere of uncertainty and potential bias, making it not reasonable for the current Attorney-General to re-evaluate the case and decide not to pursue it further?

In addition to same, is this not the case the accused appealed and won at the court of appeal with a convincing ratio decidendi?

In light of the circumstances surrounding some of these cases, is it not prudent that the current Attorney General Hon Dominic Ayine filed a nolle prosequi ? For me, it can be seen as a prudent move to ensure that justice is served and that the integrity of the legal process is maintained.

Your question on whether the AG will have the moral right to prosecute appointees of Ex-President Akuffo Addo.

As to whether or not he may be able to do that depends on the facts of the cases, the availability of evidences.

Again, looking at the experience and pedigree of the Attorney General and how the current government is poised to fight corruption and crime, prosecutions would be made not on political witch-hunt like the case of Hon Ato Forson but on the substance of the said cases. I believe that, the Attorney-General, has the moral right to prosecute any former government appointee who has misconducted him/herself. His role demands that he remains impartial and independent, unaffected by political affiliations or interests.

If yes, will he file nolle prosequi in any of those cases if they are described by his opponents as politically motivated and witch-hunt?

Ideally, the Attorney-General would not file nolle prosequi solely based on accusations of political motivation or witch-hunting as in the case of Ato Forson. Instead, he would carefully evaluate the evidence and merits of each case, ensuring that justice is served and the rule of law is upheld.

In conclusion, I am finding it difficult and it is very mind boggling, and as such, I express strong reservations about your comment that the Attorney-General’s decision to discontinue certain high-profile cases creates an “ugly image” and implying a whitewashing of officials. While those concerns may be understandable, it does not in anyway cast a bad shadow on the infant Mahama government.

Your assertion that “crime has no expiry date and truth never gets rotten” is a poignant reminder of the importance of accountability and justice.

Furthermore, the criticism of President Mahama’s second administration seems premature, especially considering that the administration has only recently taken office. Is it not prudent to give the administration time to prove itself and demonstrate its commitment to justice and accountability?

The Attorney-General’s decision to discontinue cases should be evaluated on their merits, rather than being dismissed as a mere whitewashing of officials.

The NPP spent 8 years and could not win any of these cases and you still deem it prudent to be continued with state resources?