OF NOLLE PROSEQUI AND WITHDRAWALS – AT WHAT STAGE OF CRIMINAL PROSECUTION CAN THEY BE ENTERED AND OF WHAT EFFECT DO THEY HAVE IN CRIMINAL JURISPRUDENCE IN GHANA?

 

The Ghanaian media has been inundated with discussions on the state's decision to discontinue criminal prosecutions against several high-profile individuals of the National Democratic Congress (NDC) which were initiated by the erstwhile NPP government, including Samuel Ofosu Ampofo, Anthony Kwaku Boahen, Dr. Stephen Kwabena Opuni, and Seidu Agongo. The Attorney General's (AG) instruction to withdraw charges has raised questions about the distinction between a Nolle Prosequi and a withdrawal of charges.

 

It's unclear from the information provided whether the AG entered a Nolle Prosequi or simply withdrew the charges. The distinction is crucial, as a Nolle Prosequi would imply that the state is unwilling to continue the prosecution, while a withdrawal of charges might suggest that the prosecution is being discontinued due to other reasons.

 

This article examines the stages at which a Nolle prosequi and Withdrawal can be entered and their effects on criminal trials.

 

In Ghana, the Attorney-General has the discretion to discontinue a prosecution through a Nolle Prosequi (NP) or Withdrawal. The Attorney General's discretionary power to enter a Nolle Prosequi is not accompanied by an obligation to provide reasons. However, this power must be exercised in conformity with Article 296 of the 1992 Constitution of Ghana.

 

Article 296 mandates that discretionary power be exercised fairly, impartially, and in accordance with due process. This ensures that decisions are not arbitrary, capricious, or biased.

 

In many common law jurisdictions, the Attorney-General or the prosecution has the discretion to discontinue a prosecution by entering a Nolle Prosequi. This discretion is usually exercised in cases where:

1.         The prosecution's case is weak or lacks evidence.

2.         The accused has already been punished sufficiently.

3.         The prosecution's witnesses are unavailable or unreliable.

4.         The public interest does not require a prosecution.

 

In Ghana, Article 88 of the 1992 Constitution indeed vests the Attorney-General with significant powers regarding prosecutions. Article 88 (3) provides that the Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. Criminal Prosecutions in Ghana are in two folds – summary trial and trial by indictment.

 

At what stage of the prosecution can Nolle Prosequi be entered?

 

Section 54 of Ghana’s CRIMINAL AND OTHER OFFENCES (PROCEDURE) ACT 1960 (ACT30) provides that Nolle Prosequi can be entered at any stage of the prosecution, from the commencement of the trial to the end of the trial, BEFORE JUDGMENT IS DELIVERED.

 

What effect shall it have?

 

When a Nolle Prosequi is entered, it has the following effects:

1.         Discontinuance of prosecution and the accused is DISCHARGED.

2.         No acquittal: A Nolle Prosequi does not amount to an acquittal, and the accused may still be re-arraigned on the same charges in the future if new evidence emerges.

3.         No bar to future prosecution: The entry of a Nolle Prosequi does not bar future prosecution for the same offense

 

An Accused Person cannot plead "autre fois acquit" or "autre fois convict" in future trials on the same charges if a NP was entered. "Autre fois acquit" (also known as "double jeopardy") and "autre fois convict" are common law pleas that prevent an accused from being tried again for the same offense after being acquitted or convicted.

 

CAN A PLAINTIFF RELY ON NOLLE PROSEQUI ENTERED IN HIS FAVOUR TO MOUNT A CLAIM OF MALICIOUS PROSECUTION? – A TOPIC FOR ANOTHER DAY

 

WITHDRAWALS

 

Section 59 (1) of Act 30 provides that in any trial or preliminary proceedings before a District Court any prosecutor on the instructions of the Attorney General at any time before judgment is pronounced may withdraw from the prosecution of any person either generally or in respect of any offences with which he is charged.

 

Although Section 59(1) of Act 30 refers to proceedings before a District Court, the effect of Withdrawals applies to all summary proceedings from the High Court to other lower Courts as provided by Section 59(4). Section 59 (4) provides that the provisions of the preceding subsections shall apply mutatis mutandis to summary trials before the High Court or a Circuit Court

 

The effect of Withdrawal depends on the stage of prosecution:

a)         if it is made during any enquiry under Part IV (Trial by Indictment) the accused shall be discharged in respect of the offence(s)

b)         if it is made during a trial—

(i)        before the prosecution closes its case - the accused shall be DISCHARGED in in respect of the offence(s)

(ii)       after the prosecution has been closed its case - the accused shall be ACQUITTED in the offence(s) and can plead "autre fois acquit" or "autre fois convict" in future trials on the same charges.

 

In Conclusion, Nolle Prosequi and Withdrawals may have similar effects on criminal trials depending on the stage of the trial where they are entered. However, if a Withdrawal is made after the prosecution has closed its case, the accused shall be acquitted and can plead "autre fois acquit" or "autre fois convict" in future trials on the same charges flowing from the same facts.

It is my respectful submission that the Attorney General has withdrawn all charges against the accused persons. Given that the prosecution had closed its case in these matters, the withdrawal of charges operates as an acquittal.

 

As a result, the accused persons cannot be tried again on the same charges arising from the same facts in the future. While the withdrawal of charges does not necessarily imply innocence, it brings a definitive end to the current prosecution.

 

The writer, Michael Kwablah (Facebook ID – MKGhaddafi) is a Lawyer and Human Resource Practitioner.

Tel – 0249199541

Email – m.kwablah06@gmail.com