CONSTITUTION SUPPORTS FREE SPEECH AND NOLLE PROSEQUI IN A PENDING CASE
THE CONSTITUTION SUPPORTS FREE SPEECH ADVOCATING FOR GOVERNMENT TO ENTER A NOLLE PROSEQUI IN A PENDING CASE
BY MARTIN A. B. K. AMIDU
T“A lot of hypocrisy is happening right now. Political weaponization of the DOJ [Department of Justice], unfortunately, seems like the theme of this election cycle.” Jimmy Patronis
The Minister for Justice and the Attorney-General cannot be allowed to walk away with his penchant of talking down on the sovereign people of Ghana, using threats and intimidation to suppress citizens’ rights to free speech in criticizing the weaponization of the process of criminal justice administration entrusted to his care under Article 88 (3) & (4) of the 1992 Constitution with the spurious rhetoric in the name of citizens running “extremely prejudicial commentary on cases pending before the courts”.
The power and discretion of the executive branch to enter a nolle prosequi at any stage of any pending criminal proceeding before judgment, is derived from the prosecutorial powers and discretion of the Attorney-General under Article 88 (3) and (4) of the 1992 Constitution and Section 54 of the Criminal Procedure and Other Offences Act, 1960 (Act 30). The citizen is, therefore, empowered under the Constitution to hold the exercise of that power, like any other executive power, to the test of transparency and accountability through free speech.
The attempt by the Attorney-General through the press release dated 4 July 2023 to use the smokescreen of “prejudicial commentary on cases pending before the courts” to gag the citizens’ fundamental rights and freedoms to challenge the weaponization of the criminal justice system within the investigatory and prosecutorial process to perpetrate the autocratic governance of the Akufo-Addo regime is now becoming suffocatingly oppressive and unbearable.
The Attorney-General insinuated that legitimate criticisms of the investigatory and prosecutorial functions of his office “unduly interferes with the work of State Prosecutors performing their constitutional function of prosecuting crime in Ghana” without pointing to any provision under the 1992 Constitution which proscribes the sovereign people of Ghana from holding to account State Prosecutors who allow themselves to be misused to abuse the very prosecutorial constitutional function they purport to perform in aid of an oppressive Government whose aim is to weaponize the system of criminal justice administration to achieve electoral political objects in an election cycle.
Any Attorney-General is deemed to be a person who approaches the duties imposed upon his office under Article 88 (3) and (4) with deep humility and in his quiet and reflective moments engages in reflexive thinking. Consequently, one expects the Attorney-General to have realized that the “members of the legal profession of considerable standing” he alluded to in his press release have within them men and women who hold convincing considered opinions and disagree professionally and ethically with the weaponization of the investigation and prosecution of the processes of criminal justice administration under his watch.
These “members of the legal profession with considerable standing” include his predecessor Attorneys-General from both political divides who have exercised the discretionary power embodied in the concept of nolle prosequi and know better that an advocacy or appeal to the Attorney-General or the President as the repository of the executive power to order the entry of a nolle prosequi in a criminal case pending in court cannot be prejudicial to the administration of justice.
The above position is vindicated by the late eminent Ghanaian jurist, Justice of the Court of Appeal, Dean of the Faculty of Law of the University of Ghana, Director of Public Prosecutions, and Attorney-General and Commissioner for Justice, Mr. Justice A N. E. Amissah, writing, in his Criminal Procedure In Ghana, (repeating a truism every seasoned prosecutor knows), that: “The power of the Attorney-General to discontinue a case by the entry of a nolle prosequi or withdrawal is political in nature. No law prescribes the conditions under which it should be exercised or requires that he explain the reasons for doing so….”
What vested interest does a fair and impartial judiciary hearing a criminal case have in any decision of the Attorney-General to discontinue an action with the entry of a nolle prosequi that a public advocacy for such an action constitutes an interference in the trial of the case? Is the Attorney-General saying that there is any superior court judge in Ghana who has not achieved the level of maturity and experience to distinguish between urging the Attorney-General to enter a nolle prosequi in a case and comments prejudicial to the administration of justice?
In the United States of America today one of the most current constitutional disagreement is the indictment of former President Trump by the Department of Justice (DOJ) leading to more scathing criticizing of the DOJ and the Biden administration for weaponizing the administration of justice without threats of persecution by the DOJ hanging over the necks of the eminent lawyers and enlighten citizens for exercising their rights to free speech. The Americans also have the right to equality before the law and free speech enshrined centuries ago into their Constitution which we adopted in the 1992 Constitution. The United States Attorney-General has never dared to threaten citizens’ right to free speech for urging the executive branch to be decent and exercise a prosecutorial discretion in a certain manner. It is a total insult and slap to the Ghanaian public for the Ghanaian Attorney-General to do so.
On the same day, 4 July 2023, that the Attorney-General mimicked the President and issued his autocratic press release, the Chiefs of Assin North held a press conference and appealed to the President and the Attorney-General to exercise the nolle prosequi discretion in favour of the beleaguered Member of Parliament for their Constituency following the 27 June 2023 by-election there. The minority in Parliament on the same day also served notice in the following form to the public: “I wish to serve notice that the entire minority group will accompany our colleague to court today and any other day that he is to appear in court…We are solidarising with our colleague, I urge the government to listen to the good people of Assin North and do the right thing.” This is exactly what reasonable and experienced former Attorneys-General anticipated and tried to preempt by urging the Government to consider entering a nolle prosequi in the case.
The Chiefs of Assin North and minority in Parliament have virtually repeated the same thing “the members of the legal profession with considerable standing” had said. They also expressed solidarity with the Dormaahene, President of the Bono Regional House of Chiefs and Paramount Chief of Dormaa Traditional Area, Osagyefo Oseadeeyo Agyemenag Badu II who in his capacity as a traditional ruler had made a similar earlier appeal. The people of Ghana are consequently waiting with bated breath to see the Government and the Attorney-General implementing the Attorney-General’s threats and intimidations of citizens by persecuting the Assin North Chiefs and the minority in parliament for the exercise of their right to free speech, assembly, and movement under the Constitution.
Mr. Godfred Dame, the Attorney-General, should always remember that no condition is permanent and that the Chiefs and people he is threatening and intimidating now are the very people he met on his way up and would meet on his way down when he ceases to be the Attorney-General. As a protégé of Nana Akufo-Addo whom he trained from his law firm of Akufo-Addo, Prempeh & Co and appointed as Attorney-General, the perceptions of his independence and impartiality in that office has to be earned by his positive conduct and not by negative perceptions or suspicions that he is being used by the President to weaponize the Office of the Attorney-General against political opponents.
Ghana shall always endure and win with patriots defending the Constitution no matter what Governments do. The words of William Shakespeare in MacBeth ought to be a reminder to every Government and continue to serve as a warning to all tyrants and would be tyrants:
“… But in these cases,
We still have judgement here; that we but teach
Bloody instructions, which, being taught, return
To plague the inventor; this even-handed justice
Commends the ingredients of our poisn’d chalice
To our own lips….”
Patriots, let us continue to defend the Constitution, for Freedom and Justice shall prevail in the end. Salutations to all patriotic citizens!
Martin A. B. K. Amidu
5 July 2023