WHY THE GOVERNMENT’S POSITION ON NOLLE PROSEQUI IN THE CONSTITUTIONAL REVIEW COMMITTEE REPORT SHOULD BE REJECTED BY GHANAIANS
By Goodnuff Appiah Larbi, (PhD)[1]
Introduction
Articles 88(3) and (4) of the 1992 Constitution of Ghana confer on the Attorney-General the authority to initiate, conduct, and discontinue criminal proceedings. The Attorney-General’s power to enter a nolle prosequi[2] is recognised under sections 54 and 55 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The exercise of this power has traditionally been treated as a matter falling within the prosecutorial discretion of the Attorney-General and has historically enjoyed considerable protection from judicial interference.[3]
In the case of Republic v. Felicia Abrokwa,[4] the High Court held that a nolle prosequi entered by a State Attorney is presumed to have been regularly exercised and is therefore not open to judicial review. Similarly, in Republic v Adu Tutu Gyamfi,[5] the Court of Appeal, Kumasi, affirmed the position in Felicia Abrokwa as representing the correct statement of the law.
The distinguished legal scholar and practitioner J A N Amissah, in his Criminal Procedure in Ghana, further observed at page 22 that:
“No law prescribes the conditions under which it (nolle prosequi) should be exercised or requires that he (Attorney-General) explain the reason for doing so” (Emphasis added).[6]
These authorities demonstrate the scope of the Attorney-General’s traditional discretion. They also reveal the fundamental problem that the Constitutional Review Committee seeks to address: the power to discontinue a criminal prosecution after it has commenced is, under the existing legal position, capable of being exercised without a clearly defined statutory standard, without a mandatory obligation to provide reasons, and without prior judicial approval.[7]
It is against this background that the final recommendation of the Constitutional Review Commission assumes considerable constitutional significance.
The Constitutional Foundation for Reconsidering Nolle Prosequi
The final recommendation presented to the President by the Constitutional Review Commission, contained in the last sentence of paragraph 4.25 on page 85 of the Report, states:
“The Committee also recommends that the Attorney-General or any person exercising prosecutorial authority may not discontinue a commenced prosecution without leave of court.”[8]
The recommendation represents a significant departure from the traditional position. Rather than permitting the prosecutorial authority to terminate a prosecution unilaterally after proceedings have commenced, it proposes that the court should have an opportunity to scrutinise and approve the discontinuance.
The Government’s position paper on the final recommendations of the Constitutional Review Committee, dated 28 July 2026, rejects this recommendation. It states:
“The Government notes that the Committee also proposes to compel the Attorney General to seek leave of the court to discontinue a prosecution. In the best traditions of the common law, this is an untenable proposition. Seeking leave of the court not only places a fetter on the discretion of the Attorney General to decide whether or not to continue a prosecution, but it also indirectly compels disclosure of the reasons for the discontinuation of prosecution. That raises practical difficulties for the prosecution, especially in respect of highly sensitive criminal prosecutions. The Attorney General should definitely act reasonably and comply with the requirements imposed by law. But the discretion to disclose reasons for dropping a prosecution should remain with the Attorney General to do so on a case-by-case basis.”[9]
The Government’s position is therefore founded principally upon the preservation of prosecutorial discretion and the contention that requiring judicial leave would constitute an impermissible fetter upon the Attorney-General’s authority. It further argues that judicial approval could indirectly require the Attorney-General to disclose reasons for discontinuing a prosecution, thereby creating difficulties in sensitive criminal matters.
With respect, this position should not be accepted without first subjecting it to the supremacy of the existing 1992 Constitution.
Article 296 of the 1992 Constitution ensures that public office holders while exercising discretionary power are subject to judicial scrutiny. In the case of Enekwa & Others v. Kwame Nkrumah University of Science & Technology (KNUST),[10] the Supreme Court held that generally, a body performing a public function is amenable to judicial review. Public officers like the Attorney-General in performing public duties are subject to judicial review. Justice Anin Yeboah JSC (as he then was) speaking for the Court, stated that:
“[I]f it is established that there was abuse of any power vested in them in the discharge of their functions, judicial review should avail any member of the public who has suffered from such abuse.”[11]
The constitutional foundation of judicial review, in Ghana, is beyond doubt. For example, article 141 of Ghana’s Constitution provides that:
“[T]he High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority, and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
Furthermore, article 23 provides that:
“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or tribunal.”
Article 296 energies articles 23 and 141 by providing the standards that public officers holders must adhere to in exercising their functions.
Article 296 also serves as the yardstick for the Courts to measure the actions of these officers. It 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; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either 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.”
Based on articles 23, 141 and 296 of Ghana’s Constitution, it is undisputable that all the actions and inactions of the Attorney-General as a public office holder must adhere to article 23 and pass the “Article 296 test” and anyone aggrieved by the said actions and inactions, including entering a nolle prosequi, are subject to judicial review under article 141.[12]
Sovereignty, Equality and the Administration of Justice
Article 1(1) of the 1992 Constitution declares in unequivocal terms that sovereignty resides in the people of Ghana and that the exercise of governmental authority derives from the people. This principle is fundamental to understanding the nature of prosecutorial power. The Attorney-General does not own the criminal process personally; rather, prosecutorial authority is a public power exercised on behalf of the Republic and precisely within a constitutional order in which sovereignty belongs to the people.
Article 17(1) of the Constitution further provides that: “All persons shall be equal before the law.”[13]
This constitutional guarantee raises an important question concerning the exercise of an unrestricted power to discontinue criminal proceedings. If two similarly situated accused persons are subject to criminal proceedings, the constitutional principle of equality before the law requires that prosecutorial power should not be exercised arbitrarily, selectively or for improper purposes.
A power that may terminate a prosecution without reasons and without any requirement for prior judicial scrutiny creates, at least in principle, a significant accountability gap.
Article 125(1) is equally important. It provides:
“Justice emanates from the people and shall be administered in the name of the people by the Judiciary which shall be independent and subject only to this Constitution.”[14]
This provision is particularly relevant once a criminal prosecution has been commenced before a court. At that stage, the matter is no longer merely an internal prosecutorial process. It has entered the judicial domain, and the Judiciary has assumed constitutional responsibility for administering justice in the name of the people.
The question therefore arises: why should a prosecutorial authority be able unilaterally to terminate proceedings that have already been placed before an independent Judiciary without obtaining the leave of that very court? Even in civil suits, which ordinarily concern private rights and interests, a plaintiff who wishes to withdraw or discontinue an action may, depending on the stage and circumstances of the proceedings, be required to seek the leave or approval of the court.[15] If such judicial oversight is considered necessary even where the dispute is essentially private, how much more should it be required in a criminal prosecution, where the proceedings implicate not merely the interests of the parties but the wider public interest in the administration of justice?
The Review Committee’s recommendation provides a constitutionally coherent answer. It does not transfer prosecutorial authority to the Judiciary. Rather, it recognises that once proceedings have commenced, the court has a legitimate institutional interest in ensuring that the judicial process is not terminated or truncated arbitrarily, capriciously or for purposes inconsistent with the administration of justice.
Constitutional Supremacy
Perhaps the most decisive constitutional consideration is Article 1(2), which provides:
“This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”[16]
This provision fundamentally changes the manner in which the common-law doctrine concerning nolle prosequi must be approached in Ghana.
The historical common-law position may explain why the Attorney-General traditionally possessed an extensive power to discontinue criminal proceedings. It cannot, however, determine whether that power, in its present form, is compatible with Ghana’s constitutional order.
The common law is not the supreme law of Ghana. The Constitution is.[17]
Therefore, the fact that the Attorney-General’s power has historically been exercised without judicial approval cannot, by itself, constitute a sufficient reason for preserving the power in its traditional form. Where an existing common-law rule, statutory provision or constitutional practice is inconsistent with the Constitution, Article 1(2) requires the Constitution to prevail.
This is the critical weakness in the Government’s reliance upon the “best traditions of the common law”. The issue before Ghana is not simply whether judicial leave was traditionally required under English common law. The issue is whether Ghana’s own constitutional values now require greater accountability in the exercise of prosecutorial power.
Judicial Oversight Is Not the Abolition of Prosecutorial Discretion
The Government’s argument that judicial leave would “place a fetter” on the Attorney-General’s discretion also requires careful examination.
The Review Committee’s recommendation does not abolish the Attorney-General’s power to discontinue a prosecution. Neither does it vest the power to prosecute in the Judiciary. It merely introduces a requirement that, after a prosecution has commenced, discontinuance should be subject to judicial approval.
There is an important distinction between judicial oversight of discretion and judicial substitution of discretion.
A requirement to seek leave of court does not necessarily mean that the court must determine whether the Attorney-General’s prosecutorial decision was substantively correct. Rather, it permits the court to ensure that the discontinuance is consistent with the law, the Constitution and the interests of justice.
Indeed, judicial review is a principle of constitutional government.[18] The Judiciary exercises supervisory jurisdiction over the exercise of public power precisely because discretionary authority, however extensive, cannot be regarded as an unrestricted licence to act without constitutional accountability.
The Absence of a Duty to Give Reasons
Amissah’s observation that no law prescribes the conditions under which nolle prosequi should be exercised or requires the Attorney-General to explain the reasons for exercising it is particularly important.
The absence of a statutory requirement to give reasons may have been acceptable within the traditional common-law conception of prosecutorial prerogative. However, in a modern constitutional democracy, the absence of reasons can create a serious accountability problem.
If the Attorney-General may discontinue a commenced prosecution without providing reasons and without seeking judicial approval, the accused, the victim, the court and the wider public may be left without an effective mechanism for determining whether the power has been exercised lawfully and for a proper purpose.
The Government argument that, requiring judicial leave would indirectly compel disclosure of reasons and could create difficulties in sensitive prosecutions does not necessarily justify the preservation of an entirely unreviewable power.
The Constitution could provide, or Parliament could enact, appropriate procedures for dealing with sensitive information. The court could, where necessary, receive confidential material, restrict disclosure, or determine the application on the basis of information whose disclosure to the wider public is not required. The possibility that some prosecutions involve sensitive information is therefore an argument for carefully designed judicial procedures, not necessarily an argument against judicial oversight altogether.
From Prosecutorial Discretion to Constitutional Accountability
The main issue is therefore not whether the Attorney-General should retain prosecutorial discretion. That discretion is essential to the effective administration of criminal justice. The real question is whether that discretion should remain virtually absolute after a prosecution has commenced before an independent court.
The existing authorities in Felicia Abrokwa and Adu Tutu Gyamfi, together with Amissah’s observation, illustrate the breadth of the traditional position. Yet the Constitution of 1992 introduced a new constitutional paradigm founded upon popular sovereignty, equality before the law, judicial independence, constitutional supremacy and accountability in the exercise of public power.
Article 1(1) locates sovereignty in the people. Article 17(1) guarantees equality before the law. Article 125(1) entrusts the Judiciary with the administration of justice in the name of the people. Article 1(2) makes the Constitution supreme over every inconsistent law or exercise of public authority.
These provisions provide a compelling constitutional basis for reconsidering the traditional approach to nolle prosequi.
Constitutional Review Committee’s recommendation
The Constitutional Review Committee’s recommendation should therefore not be dismissed merely because it departs from the historical traditions of the common law. The purpose of constitutional reform is, in part, to identify areas in which inherited legal arrangements no longer provide adequate protection for constitutional values.[19]
The proposed requirement of judicial leave should accordingly be understood not as an attack upon prosecutorial discretion, but as a constitutional check upon the exercise of prosecutorial power once the judicial process has been invoked.
The Government’s reliance upon the “best traditions of the common law” should therefore be rejected as an insufficient constitutional justification. Ghana’s constitutional order is not frozen in the common-law traditions inherited from England. Those traditions remain relevant, but they operate subject to the supreme authority of the 1992 Constitution.
Therefore, the question Ghanaians must confront is both simple and fundamental: once the State has commenced a criminal prosecution before an independent court, should a single public officer retain the unilateral power to terminate that proceeding without judicial approval, prescribed conditions, or a mandatory duty to provide reasons?
The Constitutional Review Committee has answered that question in the negative, and its recommendation deserves serious constitutional consideration. The Government’s objection, founded principally on historical common-law tradition and the preservation of prosecutorial discretion, does not sufficiently address the demands of Ghana’s modern constitutional order. The fact that nolle prosequi has historically been exercised as a prerogative power cannot, by itself, justify its continued insulation from meaningful judicial oversight in a constitutional democracy founded on the rule of law.
The recommendation that a commenced prosecution should not be discontinued without the leave of the court should therefore be retained and developed as a constitutional safeguard against the arbitrary, improper or inconsistent exercise of prosecutorial power. Such a reform would not abolish the Attorney-General’s discretion to prosecute or discontinue proceedings; rather, it would ensure that, once the judicial process has been invoked, its termination is subject to the scrutiny of an independent court.
Reconsidering the Unfettered Exercise of Nolle Prosequi
Some academicians and lawyers have argued that the courts cannot supervise the conduct of a criminal prosecution or compel the Executive to prosecute where the Attorney-General has decided otherwise. That proposition is sound only to the extent that it protects the constitutional responsibility of the Attorney-General to determine whether and how criminal proceedings should be instituted or conducted. It cannot, however, be extended to mean that the exercise of prosecutorial discretion is wholly immune from constitutional and judicial scrutiny.
The critical distinction is between reviewing the substance of a prosecutorial decision and reviewing the legality of the manner in which the power has been exercised. The courts should not substitute their judgment for that of the Attorney-General on whether a prosecution is in the public interest. They must, however, retain the authority to determine whether the power to discontinue proceedings has been exercised in accordance with the Constitution and the law. To hold otherwise would be to place prosecutorial discretion above the rule of law.
Accordingly, if the Constitution or Parliament prescribes conditions or procedures for entering a nolle prosequi, those requirements would have legal consequences. A failure to comply with them should be capable of judicial review. The court would not thereby assume the prosecutorial function; it would simply perform its constitutional role of ensuring that public power is exercised lawfully. The independence of the prosecuting authority cannot mean independence from the law.
The case for reform is particularly compelling where the State has commenced criminal proceedings before an independent court and the prosecution has advanced to the point where a prima facie case has been established. At that stage, an unrestricted power to terminate the proceedings without explanation raises legitimate concerns about transparency, accountability and public confidence in the administration of justice. A statutory requirement that reasons be given for discontinuing such proceedings would not deprive the Attorney-General of prosecutorial discretion. Rather, it would subject the exercise of that discretion to minimum standards of constitutional accountability.
The Constitutional Review Committee’s recommendations should therefore be approached as an opportunity to strengthen, rather than undermine, the constitutional architecture of prosecutorial independence. The objective should not be to transfer prosecutorial authority from the Executive to the judiciary, but to establish appropriate protections against arbitrary or unexplained exercises of that authority. Constitutional reform must ensure that the considerable power to terminate a criminal proceeding is accompanied by corresponding standards of responsibility.
The fundamental principle is therefore straightforward: the Attorney-General should retain the discretion to prosecute or discontinue a prosecution, but the exercise of that discretion should not be beyond the discipline of the Constitution. Judicial review should not determine the merits of the prosecutorial decision; it should determine whether the power was exercised by the proper authority, according to the prescribed procedure, for a lawful purpose and consistently with constitutional standards.
Henceforth, a constitutional democracy should not accept a conception of prosecutorial discretion in which power is treated as sufficient justification for its own exercise. Discretion should operate within the law, prosecutorial independence should coexist with accountability, and the power to discontinue a criminal proceeding should remain subject to the supremacy of the Constitution. Reform is therefore not an assault on prosecutorial independence; it is a necessary protection for the legitimacy of that independence.
Comparative approach and Evolving position of Nolle Prosequi
The position of nolle prosequi in Ghana can be better understood by comparing it with other common-law jurisdictions, particularly Kenya, which shares a similar legal tradition with Ghana. Unlike Ghana, Kenya has expressly subjected the discontinuance of criminal proceedings to judicial oversight.
Article 157(8) of the Constitution of Kenya 2010 provides that the Director of Public Prosecutions (DPP) cannot discontinue a prosecution without the permission of the court. It states:
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”[20]
This provision provides a level of accountability and transparency in the exercise of the Director of Public Prosecutions (DPP’s) discretion.
Under Article 165 (6) of the Constitution of Kenya 2010, the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a quasi- judicial function, but not over a superior court. The Kenya High court is vested with supervisory jurisdiction in relation to any question whether any person or authority has exercised any functions in accordance with the Constitution or any other law. It was held in the case of Philemon Musembi v Republic[21] that, the discretionary powers of the Attorney-General under Section 26(3)(c) of the then Kenya’s Constitution 1963 and section 82(1) of the Criminal Procedure Code are subject to the supervisory jurisdiction of the Kenyan High Court. Section 26(3) (c) of the then Kenyan Constitution 1963 upon which the Kenya Court relied on was similar to section 54 (1) of Criminal and Offences (Procedure) Act 30.[22]
The Kenyan experience is therefore enlightening for Ghana. It demonstrates that recognising prosecutorial discretion does not necessarily require that such discretion be placed beyond judicial scrutiny. On the contrary, a constitutional system may preserve the independence of the prosecuting authority while concurrently requiring judicial supervision when the power is exercised to terminate proceedings already before the court.
Apart from Kenya and India, Nigeria, the United Kingdom, Canada, and several other Commonwealth jurisdictions have progressively departed from the traditional common-law position on nolle prosequi. These jurisdictions have introduced legal and procedural precautions designed to make the exercise of the power more transparent, accountable, and victim-centred, while, in some instances, subjecting the exercise of prosecutorial discretion to judicial scrutiny.
In Gregory Afoko v. Attorney-General, [23] the Supreme Court held that the exercise of the power to enter a nolle prosequi constitutes an executive, rather than a quasi-judicial, function and is therefore not subject to the specific requirements of article 296(c) of the 1992 Constitution governing the exercise of discretionary power. It is important, however, to distinguish the Court’s express holding from the broader question of whether the Attorney-General’s decision to enter a nolle prosequi is amenable to judicial review. That question was not directly in issue before the Court in Afoko’s case.
However, aspects of the Court’s reasoning arguably support the conclusion that the exercise of the power is not wholly immune from constitutional scrutiny. In particular, the Court considered whether the circumstances surrounding the Attorney-General’s decision disclosed bias, unfairness, arbitrariness or capriciousness, matters falling within the constitutional standards prescribed by article 296(a) and (b). Although the Court found that the plaintiff had failed to establish such grounds, its consideration of those standards is noteworthy. It suggests that the exercise of the Attorney-General’s prosecutorial discretion, notwithstanding its executive character, cannot be divorced entirely from the constitutional limitations imposed upon the exercise of public power.[24]
The logical implication is that the constitutional characterisation of the power as executive does not necessarily place the exercise of that power beyond judicial scrutiny. Rather, where the exercise of the power is alleged to have been tainted by bias, bad faith, unfairness, arbitrariness, capriciousness or other constitutionally impermissible considerations, the courts may be called upon to examine whether the constitutional limits governing the exercise of public power have been observed. Thus, a person who contends that the Attorney-General’s decision to enter a nolle prosequi fails the constitutional standards embodied in article 296(a) and (b) may perhaps invoke the supervisory jurisdiction of the courts for appropriate relief.
Therefore, while Afoko does not expressly establish that every exercise of the power to enter a nolle prosequi is subject to judicial review, its reasoning provides a basis for the more limited and defensible proposition that the exercise of that prosecutorial discretion is not constitutionally unreviewable. The executive character of the power does not, in itself, immunise its exercise from judicial scrutiny where there is an allegation that the discretion has been exercised in a manner inconsistent with the Constitution.
The emerging position in Ghana itself appears to support a reconsideration of the traditional understanding of nolle prosequi. In the recent decision of Noah Ephraem Teteh Adamtey v Attorney-General (The OSP Case),[25] Baffoe-Bonney CJ, at page 45, emphasised the constitutional seriousness of the power in these terms:
“The power of nolle prosequi is solemn one. It is committed to the Attorney General not for his own Convenience, nor for the convenience of any government, but for the ordered administration of the criminal law of the Republic. This Court expects that it will not be exercised lightly in a prosecution for corruption, and that when it is exercised the reasons will withstand the scrutiny both of the courts and of the public” (Empasis added).
The venerable Chief Justice’s observation is remarkable because it treats nolle prosequi not as an unfettered prosecutorial power, but as a solemn constitutional responsibility. Since the power must serve the “ordered administration of the criminal law”, its exercise must be lawful, reasonable and accountable. The emphasis on reasons that must withstand scrutiny by both the courts and the public further suggests that the exercise of nolle prosequi is not beyond constitutional scrutiny.[26]
In his dissenting opinion, which, on the face of the judgment, appears almost to assume the character of a concurring opinion, the indefatigable Justice Pwamang JSC in Afoko v Attorney-General[27] explained the essence of disclosing reasons when entering nolle prosequi as follows:
“The purpose of Article 296(c) is to infuse transparency in the exercise of discretionary powers and thereby check abuse of discretion by those upon whom it is conferred. In the case of nolle prosequi, with which we are concerned in this case, published regulations would assure the public that the Attorney-General can be held legally accountable and furthermore, published regulations would provide a framework within which, if the exercise of the discretion of nolle prosequi is challenged, a court can judge the fairness and reasonableness of the nolle prosequi on a case-by-case basis. In fact, there have been instances where Attorney-Generals under public pressure, have disclosed the considerations that led to the entry of nolle prosequi. In October 1976, the Attorney-General of Ghana went public to explain the factors that led to the entry of nolle prosequi in the case of The Republic v El Helou & Others which involved high public interest. In recent times, the Attorney-General offered an explanation for the nolle prosequi entered to terminate the prosecution of Kwasi Kyei Darkwa, a popular Ghanaian broadcaster. Is a person in the situation of the plaintiff in this case, who is directly affected by the Attorney-General’s exercise of her discretion, not entitled to know beforehand the factors that were taken into consideration in filing the nolle prosequi in his case?
The decisions to prosecute and to terminate prosecution of suspected offenders is a matter of immense public interest. Furthermore, it affects the rights of the suspected offenders who may be compelled to suffer the indignation of prosecution when there is seriously no point in mounting prosecution on the facts of the case. It is because of these considerations that the modern trend in democracies is for prosecutorial authorities to be open about the factors on which they take the decisions to initiate or terminate prosecutions.”[28]
The current Attorney-General, Hon Dr Dominic Akuritinga Ayine, under whose tenure the constitutional reform process is being undertaken, has, in 2025,[29] publicly explained the reasons for filing nolle prosequi notices to discontinue certain high-profile criminal prosecutions.[30] This practice represents a significant and welcome departure towards greater transparency and accountability, notwithstanding the fact that the Attorney-General is not presently under a statutory or constitutional obligation to provide reasons for the exercise of the power. If the Attorney-General himself has demonstrated, as a matter of constitutional practice, that reasons can be given for the exercise of this extraordinary prosecutorial power, on what principled basis should the Government reject a reform proposal that would institutionalise such transparency and accountability?
The 11-member Constitutional Review Implementation Committee
The Attorney-General has inaugurated an 11-member Constitutional Review Implementation Committee, tasked with examining the Government’s position paper alongside the Report of the Constitutional Review Committee and developing a comprehensive framework for implementing the proposals, it is my humble prayer that the Government’s position on nolle prosequi will be reconsidered and rejected by Ghanaians. The 11-member Implementation Committee should recommend the retention and implementation of the Review Commission’s proposal requiring the Attorney-General, or any person exercising prosecutorial authority, to obtain the leave of the court before discontinuing a commenced prosecution.
Conclusion
Ghana’s constitutional democracy must not remain bound by inherited legal traditions where those traditions no longer adequately serve the values of our constitutional order. The proposed reform presents an opportunity to place prosecutorial power within a framework of greater accountability while preserving the legitimate interests of the State and the independence of prosecutorial decision-making. Its implementation would strengthen confidence in the administration of criminal justice, reinforce public trust in democratic governance, and demonstrate that Ghana’s Constitution is capable of evolving to meet the demands and aspirations of a modern constitutional democracy.
Authored by:
Goodnuff Appiah Larbi, (PhD)
Student, Ghana School of Law
Email: aappiahlarbi@gmail.com
[1] The Author works with the Judicial Service of Ghana and he is currently pursuing the Professional Law Course at the Ghana School of Law. He holds a Doctor of Philosophy (PhD) in Development Studies, a Master of Philosophy (MPhil) in Development Studies, a Bachelor of Laws (LLB) and a Bachelor of Science (BSc) in Financial Mathematics. He can be reached via; Email: aappiahlarbi@gmail.com
[2] Nolle prosequi, a Latin expression meaning “to be unwilling to pursue” or “not to prosecute,” represents a formal declaration by the State, through the Attorney-General, that it no longer intends to continue with a criminal prosecution. This definition was affirmed in Republic v. Felicia Abrokwah cited infra (below).
[3] R v. Comptroller-General of Patents (1899) 1 Q.B 909
[4] (1989–90) 1 GLR 385
[5] [Criminal Appeal No. H2/20/2005, 20 February 2005],
[6] J A N Amissah, Criminal Procedure in Ghana (Ghana Universities Press 1988) 22
[7] Final-Recommendations-of-the-CRC_Presented-to-President-Mahama.pdf
[8] Ibid
[9] 2026 CRC Report_Government Position Paper (Clean) TheIncomingLawyer Media share.pdf
[10] [2009] SCGLR 242
[11] Ibid at 251
[12] Samuel Opoku-Agyakwa, ‘Nolle Prosequi in Ghana: Reflections of Criminal Justice Practitioners’ (2026) 5(1) UAICLJ.
[13] Constitution of Ghana 1992, Article 17
[14] Constitution of Ghana 1992, Article 125(1)
[15] See Order 17 of C.I. 47
[16] Constitution of Ghana 1992, Article 1(2).
[17] Ibid
[18] See also Anthony Larbi Appiah, Comparative and Theoretical Analysis of Judicial Review in Constitutional Interpretation, Administrative Action and Human Rights Dispute: Ghana in Perspective (PhD dissertation, Africa Research University 2024).
[19] CM Fombad, ‘Constitutional Reforms and Constitutionalism in Africa: Reflections on Some Current Challenges and Future Prospects’ (2011) 59 Buffalo Law Review 1007; Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019).
[20] Constitution of Kenya 2010, Article 157(8).
[21][21] ([2005] eKLR (HC KAK Misc Crim Case 50 of 2005)
[22] Goodnuff Appiah Larbi and Nana Nyarkoa, ‘Guarding the Guardian of Justice: A Purposive Interpretation of Prosecutorial Discretion and Nolle Prosequi in Ghana’s Criminal Justice System’ (2026) 10 GSLSJ 189–222.
[23] Afoko v. Attorney-General [2019] GHASC 41 (19 June 2019)
[24] See also Samuel Opoku-Agyakwa, ‘Nolle Prosequi in Ghana: Reflections of Criminal Justice Practitioners’ (2026) 5(1) UAICLJ.
[25] Suit No J1/3/2026, decided on 29 July 2026,
[26] See also Goodnuff Appiah Larbi and Nana Nyarkoa, ‘Guarding the Guardian of Justice: A Purposive Interpretation of Prosecutorial Discretion and Nolle Prosequi in Ghana’s Criminal Justice System’ (2026) 10 GSLSJ 189–222.
[27] Ibid
[28] Ibid
[29] Dr. Cassiel Ato Forson & Richard Jakpa (Ambulance procurement) – The trial involving alleged financial misconduct in a €2.37 million ambulance deal was abruptly halted following the state’s withdrawal of an appeal. (c). Collins Dauda & others (Saglemi Housing Project) – In a case involving the misapplication of $200 million intended for affordable housing, the charges were dropped, sparking public outrage. (d). Dr. Ernest Thompson & others (SSNIT software deal) – The AG halted prosecutions involving irregularities in a $72 million software project, again citing insufficient public interest. (e). Dr. Johnson Asiama (Bank of Ghana/Unibank collapse) – Former Deputy Governor of the Bank of Ghana was cleared in a case linked to the financial sector cleanup. (f). Samuel Ofosu Ampofo & Anthony Kwaku Boahen (NDC leaked tape) – Accused of plotting political violence, charges against the party executives were withdrawn. (g). Oliver Barker-Vormawor & activists (Democracy Hub protest) – Protest-related cases were dropped as a supposed commitment to human rights, despite existing police reports alleging unlawful assembly. (h). The Attorney-General entered a nolle prosequi after claiming the state had recovered at least 60% of misappropriated funds in the Republic v. Kwabena Duffuor & 7 others. Dr. Duffuor, a former finance minister and founder of Unibank, had faced charges of embezzlement, money laundering, and fraud. See https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Why-the-AG-was-forced-to-file-nolle-prosequi-in-some-high-profile-cases-Barker-Vormawor-1993408
[30] See also https://www.thelawplatform.online/post/document-reasons-why-a-g-cleared-ndc-politicians-and-others-from-prosecution
