Nolle Prosequi in Ghana: Reflections of Criminal Justice Practitioners

Abstract

At common law, when a prosecutor enters a nolle prosequi, there is no requirement to explain or judicial review of the decision. Ghana follows the common law, although some common law jurisdictions, including India, Kenya, Nigeria, and the United Kingdom, have gravitated away from the common law on nolle prosequi. These countries have made the process of entering nolle prosequi transparent, victim-centred and in some cases subject to judicial scrutiny. In this article, I collect and discuss the views of 52 criminal justice practitioners (defence lawyers, judges, and prosecutors) on Ghana’s nolle prosequi law. Seventy-five per cent of them want the Attorney-General’s nolle prosequi power to be subject to judicial oversight. The respondents’ views suggest mistrust between prosecutors and defence lawyers regarding how the Attorney-General enters a nolle prosequi, with the majority of defence lawyers indicating that partisan considerations influence the exercise of this prosecutorial discretion. I identify the benefits of infusing transparency and accountability in exercising this power while advocating for judicial oversight over how a nolle prosequi is entered and for the Ghanaian taxpayer to compensate victims when there is evidence that a prosecution and nolle prosequi were initiated or entered, arbitrarily, capriciously illegally, unfairly, or out of dislike.