The Attorney-General’s Gavel: Justice or a Political Pendulum?
Less than a year after Attorney-General and Minister for Justice, Dr. Dominic Ayine assumed office, he has discontinued several high-profile criminal prosecutions initiated under his predecessors, Godfred Yeboah Dame and Justice Sophia Akuffo.
The latest of such discontinuations is the case of former Finance Minister and founder of the now-defunct Unibank, Dr. Kwabena Duffuor and 7 others, a decision which has ignited a familiar debate: is the administration of criminal justice becoming a casualty of Ghana’s political alternation?
With several other high-profile cases set for prosecution under Dr. Ayine, one could only wonder: Were the initial charges politically motivated? Are the discontinuances? And what is the impact of this cycle on public trust in the country’s legal system?
The A-G’s Unrestricted Discretion: A Double-Edged Sword
The constitutional mandate of the Attorney-General under Article 88 of the 1992 Constitution is clear and cogent, the power to “initiate and conduct all prosecutions of criminal offences” against any person before “any court” and critically, the power to discontinue at any stage before judgment, any such criminal proceedings.
This power of nolle prosequi is a vital prosecutorial tool, intended to be exercised in the interest of justice, perhaps due to insufficient evidence, lack of a witness, procedural irregularities, or a reassessment of the public interest. However, when resorted to, soon after a change in government, and particularly concerning cases involving political figures or opponents, this discretion undoubtedly raises eyebrows.
Justifying the rationale for dropping the case involving former Finance Minister Kwabena Duffuor & 7 others, A-G Dr. Ayine explained that this and many other prosecutions were launched to “(a) ensure accountability for public funds and, more importantly, (b) recover losses occasioned to the State through various alleged acts of financial impropriety.” To this end, the Office of the Attorney-General after engaging with relevant State agencies, set a 60% recovery threshold for losses occasioned to the State “as a condition for reconsidering prosecution in specific cases.”
“Following prolonged negotiations and engagements, the accused persons in The Republic v. Kwabena Duffuor & 7 Others case have met this recovery threshold. Accordingly, in furtherance of public interest, and considering the significant recoveries made for the State, the Honourable Attorney-General has satisfied himself that continuing with the prosecution will not serve any additional public interest.” A-G Ayine explained after entering his nolle prosequi.
Although a 60% recovery threshold is well-intentioned, the lurking consequences could be dire, persons could engage in gross financial misconduct, cause a significant loss to the State, pay up 60% and walk free. Should people decide to “explore” this, what would be the very essence of criminal justice? Could notable figures facing prosecution for allegedly causing financial loss to the State be allowed to ‘return’ 60% of the losses they are accused of causing? No mistakes, some of these figures are more than capable of meeting the A-G’s threshold, which will in effect, put them in the clear.
Dr. Ayine’s discontinuance of cases like that of the former National Chairman of the NDC, Samuel Ofosu Ampofo, who was facing trial since 2019 over allegations of plotting to instigate crimes and unrest in the country to make the then-NPP government unpopular, and the Republic v. Collins Dauda & Others, the alleged financial malfeasance case against former Minister of Works and Housing, within months of assuming office, could said to be fitting a pattern.
“The second reason why I dropped the charges in some of the cases, as I stated above, is that the charges were defective and, upon careful scrutiny, were filed against the promptings of plain commonsense” Dr. Ayine said on February 12, explaining why he has had to discontinue some cases.
Critics of the past administration immediately see reasons to argue that some of these cases were always “politically motivated witch-hunts.” To the supporters of the previous A-G, these discontinuances are almost certainly “political interference” to shield allies.
Motivation: The Truth That Cannot Be Defined?
Declaring definitively whether either the initial prosecutions or the discontinuances were solely politically motivated is inaccurate. Each case has its unique facts and evidentiary challenges, known fully only to the prosecutors involved. An Attorney-General entering office is entitled (indeed obligated) to review ongoing cases. Discovering procedural flaws, weak evidence chains, or realizing the state’s case is fundamentally unsustainable are legitimate, non-political reasons for nolle prosequi.
However, the timing and targets of prosecutions initiated by any A-G, past or present, warrant scrutiny. In June this year, Dr. Ayine announced the government’s decision to prosecute 12 former officials of the National Service Authority (NSA) over their alleged involvement in a GHC548 million payroll scandal. Could one label this decision as driven purely by evidence and public interest, or does it conveniently target the erstwhile NPP regime’s figures?
Discontinuance not equal to previous malpractice
It is a misjudgment to conclude that Dr. Ayine’s discontinuances automatically prove Godfred Dame did a “bad job.” Prosecutorial decisions are complex judgments made with the information available at the time. New evidence can emerge, key witnesses can recant or become hostile, legal interpretations can shift, or a fresh assessment might conclude that scarce state resources are better channeled elsewhere.
A successor A-G may simply have a different, yet still professionally valid assessment of the viability or public interest merit of a case.
Attributing discontinuance solely to predecessor incompetence oversimplifies the complex nature of criminal prosecutions.
The Inevitable Pendulum Swing?
This brings us to the most concerning question: what are the chances a future NPP-appointed Attorney-General would discontinue some of Dr. Ayine’s new high-profile prosecutions, especially if convictions haven’t been secured by the next transition? History suggests the probability is very high.
Ghana has witnessed this “case-ping-pong” before. Cases initiated under one administration often falter or are abandoned under the next, only for new ones targeting the previous incumbents to emerge.
While the A-G’s constitutional powers are broad, their exercise demands extraordinary discretion, especially concerning politically sensitive cases, lest the ordinary Ghanaian is given no choice than to perceive the Office as partisan.
To protect the integrity of the Office, it is imperative that Attorney-Generals (while constitutionally appointed by the President), consistently demonstrate that their primary allegiance is to the law and the Constitution, not the political end-game of their appointing authority.
The legal experts would argue that Dr. Ayine’s exercise of his nolle prosequi powers is a legally sound action within his constitutional remit. However, it occurs within a context already rocking in a recurring pattern of politically-spiced case reversals.
While neither the initial prosecutions nor their discontinuance can be definitively described as purely political without concrete evidence, one could dare argue that the perception of partisanship is far too real.
The true test? Whether the current prosecutions by Dr. Ayine are pursued with firm integrity and fully backed by evidence, and whether future A-Gs, regardless of who appoints them, can resist the temptation to use their vast powers as instruments of political retribution.
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