Thaddeus Sory reacts to AG’s case withdrawals

Renowned lawyer Thaddeus Sory weighs in on the Attorney General’s recent discontinuation of prosecutions, analyzing the legal justifications and raising critical questions about political influence in Ghana’s legal system. The recent decision by Attorney General Dr. Dominic Ayine to discontinue several high-profile cases has sparked intense debate in Ghana’s legal and political circles.

Thaddeus Sory has added his voice to the conversation, offering a legal perspective on the AG’s discretionary power, the principle of nolle prosequi, and the implications for Ghana’s justice system.

Sory begins by addressing the fundamental legal concept at play—nolle prosequi, which grants the AG the authority to withdraw cases at any stage before a court delivers its final judgment.

He underscores that this power is well-established in Ghanaian law and across Commonwealth jurisdictions, emphasizing that the AG is not legally required to provide explanations for such decisions. However, Sory challenges the widespread public demand for justifications, arguing that the law does not impose such an obligation on the AG.

He then delves into specific cases that have been discontinued, raising critical questions about their initial merit and potential prosecutorial overreach.

In the case of Hon. Ato Forson, Sory highlights that the Court of Appeal had already acquitted Forson and Jakpa before the AG withdrew his appeal, questioning why the case was pursued in the first place.

He also points out inconsistencies in the prosecution of Collins Dauda, noting that the charges of financial mismanagement seemed flawed, given that part of the alleged misapplied funds never reached Ghana.

Similarly, in the case of Dr. Stephen Opuni, Sory recounts judicial irregularities, including the striking out of favourable evidence and the controversial transfer of a judge.

Sory argues that these instances indicate prosecutorial actions that may have been politically motivated or, at the very least, legally unsound. He suggests that rather than focusing on whether the AG should explain his decisions, the public should examine whether these prosecutions were justified from the outset.

Read Thaddeus Sory’s analysis on the subject matter below:

The Story of King Pyrrhus – Part II [Nolle Prosequis, Withdrawals et al]

In Part I of this discussion, I advised the learned Professor to provide answers to certain questions I posed to him about the meaning of a “prima facie” determination. The Professor responded promptly and in a characteristically professorial manner.
Rather than answering directly, he treated us to an allegorical story set in Umuofia.
Since my question has been answered, I will not dwell much on it. Suffice it to say that “prima facie,” as an adjective, means “sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved untrue.” As an adverb, it means “at first sight; on first appearance but subject to further evidence or information.” See the 10th Edition of Black’s Law Dictionary.
What this essentially means is that once an allegation makes sense and raises reasonable questions, a prima facie case has been established, requiring actual investigation.
Whatever the case may be, legal authorities make it clear that two officials who have held the same office at different times are entitled to their respective opinions on whether the same set of facts constitutes a prima facie case. Both are entitled to different conclusions, and each may take action based on their assessment. Thank you, Professor.
However, Professor, one of the characters in your Umuofia story interests me—particularly in light of recent events. This character shares a name with our current Attorney-General (AG): Ayine. He rightly received justice when he was given a fair hearing.
The AG has been accused of hastily discontinuing prosecutions without providing reasons. Some suggest these cases were politically motivated and had merit but were abandoned. A politician even insinuated that the AG has no “moral” basis or “justification” to prosecute officials from the opposing political side under similar circumstances, given his decision to discontinue certain proceedings. My good friend Manasseh also weighed in, applying the well-known phrase “clearing agent” to the situation.
So, let’s begin with my first question: What is a Nolle Prosequi?
Rooted in Latin, Nolle Prosequi means “to be unwilling to pursue.” In our legal framework, two statutory provisions grant the AG—who, by convention, is irrefutably presumed to be learned—the power to simply file a nolle prosequi, indicating unwillingness to proceed or an intention to withdraw criminal proceedings at any time before judgment. See Sections 54, 55, and 59 of the Criminal and Other Offences (Procedure) Act 1960, Act 30.
The power of the AG to discontinue prosecutions is well established across Commonwealth jurisdictions. It is also firmly recognized that the authority to file a nolle prosequi is exclusively vested in the AG or anyone acting under their authority. This power is not shared with any other entity.
Now, my second question: At what point can the AG discontinue proceedings?
It is unequivocally established in our legal system that the AG may do so at any time before the court delivers its final judgment. This principle is consistent across Commonwealth jurisdictions.
My third question: Is the AG required to explain why they are unwilling to pursue a case?
Traditionally—and as observed in other Commonwealth countries—the AG seldom provides an explanation for such decisions. The law does not require the AG to justify withdrawing a case, as they have the statutory discretion to halt any criminal proceedings. I will add here that if we trust the AG to initiate proceedings in good faith, then we must also trust the AG’s judgment when deciding to discontinue a case. Since we are discussing an office, we must distinguish between the office of the Attorney-General itself and the individual currently occupying it.
In some common law jurisdictions, the AG’s power to discontinue criminal proceedings is subject to court approval. However, that is not the case in Ghana.
My fourth question: On what grounds may the AG exercise the power to halt ongoing criminal proceedings? The reasons, among others, include:
inability to prove the case because key witnesses have become unavailable or uncooperative.
evidence failing to meet the threshold of proof beyond a reasonable doubt.
iii. unreliable evidence.

The prosecutor personally doubting the accused’s guilt.
a new prosecutor taking a different view of the case.
With all due respect to my friends who are quick to demand explanations from the AG—despite having no legal right to such explanations—how many have actually questioned whether the decision to discontinue proceedings was justified based on the specific facts of each case? Now, let me discuss two or three cases and allow you to judge whether the AG has abused his powers.
In some instances, there was clear evidence of prosecutorial vindictiveness.
At certain points during a particular trial, it became evident that the criminal proceedings were being pursued simply to assert political power. There were even attempts to fabricate evidence against the accused.
Did we not read reports of a petition against a judge alleging collusion between the judiciary and the prosecution in one of these cases?
Given these publicly available facts, why do we not pause to consider whether the AG observed that some of these prosecutions were pursued in bad faith? Let me examine three cases.

HON. ATO FORSON

Before the AG withdrew his appeal in this case, the Court of Appeal had already acquitted Ato Forson and Jakpa. The majority of the Court held that the trial court had no reason to find that a prima facie case had been established against them.
I will not ask why Jakpa, as the local agent of the company that contracted with the government, was charged while his principal—the actual contracting party—was not. However, given the Court of Appeal’s ruling, should the AG have continued this prosecution.
Let me add, the appeal filed against the decision of the Court of Appeal was even incompetent and we were going to attack it.

COLLINS DAUDA

Hon. Collins Dauda was prosecuted for allegedly misapplying $200 million of public funds, causing financial loss to the Republic, and issuing false interim payment certificates.
However, according to the prosecution’s own evidence, only about $198 million of the funds actually reached Ghana due to bank charges. How, then, could Collins Dauda have misapplied $200 million that never even arrived in the country?
The contract tendered as evidence showed that, before Collins Dauda became Minister, $80 million had already been paid under his predecessor.

Furthermore, there was evidence that a project existed on-site, and part of the payments had been authorized by a minister from the previous AG’s government. Given these facts, why was Collins Dauda charged with misapplying the full $200 million?
The prosecution’s own discoveries showed that none of the interim payment certificates were issued by Collins Dauda—they were all issued by project consultants. Why, then, was he charged with issuing them?
Since the charge of causing financial loss was based on the alleged issuance of false certificates, how could Collins Dauda be held liable when he did not issue them?

OPUNI

Discussing this case is disheartening. We all recall the courtroom drama where, at the submission of no case, evidence favorable to Opuni was struck out by the trial judge.
We also remember how a judge, who correctly applied the long- established principle that criminal trials must start afresh (de novo) when a new judge takes over, had his ruling overturned—shocking many.

As if that were not enough, this judge was promptly transferred. And if one transfer wasn’t enough, there were additional transfers.
These facts have always been in the public domain. Even if they were not, the law does not require the AG to justify discontinuing proceedings. There is no need to pressure the AG, as no legal basis exists for such demands.

ERNEST THOMPSON

Let me just say one thing about this and leave it. Mr. Thompson was arraigned before the court on 20 charges. At the close of the prosecution’s case, 18 of those charges were struck out. The remaining two were evidently weak. The judge described some of the charges as “bizarre”.
As Mariama Ba concluded her SO LONG A LETTER, I say also, “Too bad for me if once again I have to write you so long a letter.”