A private legal practitioner, Justice Srem Sai, has called for a review of the provision in Ghana’s statutes which allows the Attorney General the power to file nolle prosequi (discontinuation of legal proceedings) in criminal cases.
For him, it is unfair for the AG to file a nolle prosequi in a case which has been heard and travelled almost to an end, and decide to re-start prosecution of the same case from scratch.
His comments come on the back of a nolle prosequi request made on Monday by the Attorney General in the murder case of the New Patriotic Party Upper East Regional Chairman, Adam Mahama.
The trial of Gregory Afoko, who was arraigned on charges of murder and conspiracy at the Accra High Court two years ago was almost winding up for judgement to be delivered when the AG put in the request.
The AG’s action followed the arrest of a new suspect in the case Asabke Alangdi. He is said to have conspired with Afoko attack the late NPP chair with acid at his residence in Bolgatanga in May 2015.
Speaking to the issue Monday night on TV3 News@10, Mr. Srem Sai said it is unfair to have someone who has gone through trial all these years to begin the whole process again.
“The question that will come up is whether we are being fair to the person who has been standing trial all this while. It is a question of fairness; is it fair to someone who has gone through trial up to the point of closing a case, with 14 witnesses called to testify?” he quizzed.
He said the Attorney General should not have started the case in the first place if it felt there was more information to be gathered.
“It is a question of what is this new person bringing on board? Could that information be brought on board, and if that information was not available, what convinced the AG to start the prosecution in the first place?” he questioned.
According to Mr. Srem Sai, the case which has led to the filing of a nolle prosequi calls for a review of the AG’s power to file such applications.
“It is a very difficult issue that I think must be looked at very closely, not just in respect of the accused person, but also in respect of the victim.
“This case presents an opportunity for a judicial review over the use of the powers of the Attorney General to enter polle prosequi,” he stated.
He said there is a school of thought in law which says the AG’s power to enter nolle prosequi is not subject to Judicial Review, while there is another school of thought which disagrees with that.
The lawyer stated that there is no public power which cannot be reviewed in court.
The legal practitioner however argued that there is a provision in law which subjects every power of the Attorney General to review.
“Every discretional power is subject to control in Article 296. By the effect, it means the AG’s power to enter nolle prosequi is also subject to Judicial Review, and I belong to that school of taught that the power is not beyond Judicial Review.”
He stated that the family of the first suspect, Gregory Afoko, can question the decision of the use of power by the AG to file nolle prosequi if they so desire.
By Irene Amesimeku| 3news.com| Ghana