1. Introduction
Articles 88(3) and (4) of the 1992 Constitution confer on the Attorney-General the authority to initiate, conduct and discontinue criminal proceedings. This power to enter a nolle prosequi is recognised under sections 54 and 55 of the Criminal and Other Offences (Procedure) Act. Traditionally, the exercise of this power has been regarded as a matter of prosecutorial discretion and has enjoyed substantial protection from judicial interference.

In Republic v Felicia Abrokwa, the High Court held that a nolle prosequi entered by a State Attorney is presumed to have been regularly exercised and is not open to judicial review. The Court of Appeal, Kumasi, similarly affirmed this position in Republic v Adu Tutu Gyamfi. J.A.N. Amissah, in Criminal Procedure in Ghana, further observed that no law prescribes the conditions under which a nolle prosequi should be exercised or requires the Attorney-General to provide reasons.

These authorities demonstrate the breadth of the traditional prosecutorial discretion. They also expose the accountability problem that the Constitutional Review Committee sought to address: a prosecution may be discontinued after commencement without clearly defined statutory standards, mandatory reasons, or prior judicial approval.

2. The Constitutional Review Committee’s Recommendation

The Constitutional Review Committee recommended, in paragraph 4.25 of its Report, that the Committee also recommends that the Attorney-General or any person exercising prosecutorial authority may not discontinue a commenced prosecution without leave of court.

This would significantly alter the traditional position by requiring judicial approval before a commenced prosecution could be discontinued.

However, the Government’s position paper dated 28 July 2026 rejects the recommendation. It argues that requiring the Attorney-General to seek leave of court would be inconsistent with the traditions of the common law, fetter prosecutorial discretion and indirectly compel the disclosure of reasons, potentially creating difficulties in sensitive prosecutions.

With respect, this position should be reconsidered in light of Ghana’s constitutional framework.

3. Constitutional Accountability and Judicial Review

The Government’s objection places considerable emphasis on prosecutorial discretion. Yet discretion exercised by a public officer is not synonymous with unfettered power.

Articles 23, 141 and 296 of the Constitution establish important safeguards against arbitrary exercises of public power. Article 23 requires administrative bodies and officials to act fairly and reasonably and to comply with the law. Article 141 gives the High Court supervisory jurisdiction over lower courts and adjudicating authorities. Article 296 provides that discretionary power must be exercised fairly and candidly, must not be arbitrary, capricious or biased, and must conform to due process.

In Enekwa & Others v KNUST, the Supreme Court recognised that persons performing public functions are generally amenable to judicial review where there has been an abuse of power.

The Attorney-General is a public officer exercising public power on behalf of the Republic. The fact that prosecutorial discretion is constitutionally entrusted to the Attorney-General cannot therefore mean that every exercise of that discretion is immune from constitutional scrutiny.

The critical distinction is between reviewing the legality of a decision and substituting the court’s judgment for that of the Attorney-General. Judicial oversight need not determine whether the Attorney-General was right to discontinue a prosecution on its merits. Rather, it can ensure that the power was exercised lawfully, fairly, for a proper purpose and in accordance with prescribed procedures.

4. Sovereignty, Equality and the Administration of Justice

Article 1(1) provides that sovereignty resides in the people of Ghana. The Attorney-General therefore does not exercise prosecutorial power as a personal prerogative; that power is exercised on behalf of the Republic and ultimately the people.

Article 17(1) further provides that all persons are equal before the law. An unrestricted power to discontinue criminal proceedings without reasons or judicial scrutiny creates the potential for inconsistent or selective treatment of similarly situated persons. At a minimum, it creates an accountability gap that can undermine public confidence in equal application of the criminal law.

Article 125(1) is equally significant. It provides that justice emanates from the people and is administered in their name by an independent Judiciary.

Once a criminal prosecution has commenced before a court, the matter is no longer solely an internal prosecutorial process. It has entered the judicial domain. The question therefore arises: why should a prosecutorial authority have an unrestricted power to terminate proceedings that are already before an independent court without obtaining the court’s leave?

The Review Committee’s recommendation does not transfer prosecutorial authority to the Judiciary. It simply recognises that once the judicial process has commenced, the court has a legitimate constitutional interest in ensuring that its process is not terminated arbitrarily or for an improper purpose.

5. Constitutional Supremacy Over Common-Law Tradition

The Government’s reliance on the “best traditions of the common law” is not, by itself, a sufficient constitutional justification. Article 1(2) declares the Constitution to be the supreme law of Ghana. Any law inconsistent with it is void to the extent of the inconsistency.

The historical common-law position may explain why the Attorney-General traditionally possessed extensive powers to discontinue criminal proceedings. It cannot, however, determine whether those powers remain appropriate within Ghana’s constitutional order.

Ghana’s Constitution introduced principles of popular sovereignty, equality before the law, judicial independence, fairness, due process and accountability. These principles must inform the modern interpretation and exercise of prosecutorial power.

The relevant question is therefore not whether English common law historically required judicial approval of a nolle prosequi. The question is whether Ghana’s constitutional values now justify greater accountability when a prosecution has already commenced before a court.

6. Judicial Oversight Does Not Abolish Prosecutorial Discretion

The Government argues that judicial leave would “fetter” the Attorney-General’s discretion. This argument should be carefully distinguished from the actual effect of the proposed reform.

The Committee does not propose to abolish the Attorney-General’s discretion to prosecute or discontinue proceedings. Nor does it seek to make the Judiciary responsible for prosecutorial decisions.

Instead, the proposal introduces a procedural safeguard: after a prosecution has commenced, its discontinuance should require judicial approval.

Judicial oversight and judicial substitution are fundamentally different. A court can review whether the requirements for discontinuance have been satisfied without deciding whether the prosecution itself should have been brought or whether the Attorney-General’s assessment of the public interest was correct.

Indeed, the independence of a prosecuting authority cannot mean independence from the Constitution or the law. Public power must remain accountable even when the official exercising it has substantial discretion.

7. The Problem of ‘Reasons’

A significant concern with the current system is the absence of a mandatory duty to give reasons for entering a nolle prosequi. The absence of reasons may make it difficult for the accused, victims, the court and the public to determine whether the power has been exercised lawfully and for a proper purpose.

The Government argues that requiring judicial leave could indirectly compel disclosure of reasons and create difficulties in sensitive prosecutions. That concern is legitimate, but it does not necessarily justify preserving an effectively unreviewable power.

Appropriate protections could be developed for sensitive information. Courts could receive confidential material, restrict disclosure where necessary, or establish procedures protecting legitimate state interests. The possibility of sensitive prosecutions should therefore encourage the development of appropriate judicial procedures rather than eliminate judicial oversight altogether.

8. The Emerging Position in Ghana
The argument for reform is strengthened by Ghanaian jurisprudence.

In Gregory Afoko v Attorney-General, the Supreme Court characterised the Attorney-General’s exercise of the power to enter a nolle prosequi as an executive rather than quasi-judicial function. However, the case did not directly determine the broader question of whether every exercise of the power is immune from judicial review.

Significantly, the Court considered allegations relating to bias, unfairness, arbitrariness and capriciousness. This suggests that the executive character of the power does not necessarily place its exercise beyond all constitutional limitations.

Justice Pwamang’s dissent in Afoko was particularly compelling on the importance of transparency. He emphasised that regulations governing discretionary powers would provide a framework through which courts could assess fairness and reasonableness and would assure the public that the Attorney-General could be held legally accountable.

More recently, in Noah Ephraem Teteh Adamtey v Attorney-General (the OSP Case), Chief Justice Baffoe-Bonney described the power of nolle prosequi as a solemn power entrusted to the Attorney-General for the “ordered administration of the criminal law” and stated that, when exercised, the reasons should withstand scrutiny by the courts and the public.

This observation is important. It treats nolle prosequi not as a personal or unrestricted prerogative but as a serious constitutional responsibility.

The current Attorney-General, Dr Dominic Akuritinga Ayine, has also publicly provided reasons for discontinuing certain high-profile prosecutions. This demonstrates that transparency is not necessarily incompatible with prosecutorial discretion. If reasons can be provided voluntarily in appropriate cases, there is a strong argument for developing a legal framework that institutionalises appropriate accountability.

9. Comparative Experience
Ghana can also draw lessons from other common-law jurisdictions.

Kenya provides a particularly relevant example. Article 157(8) of the 2010 Kenyan Constitution expressly provides that the Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.

This demonstrates that prosecutorial independence and judicial oversight can coexist. The prosecuting authority retains responsibility for prosecution, while the court exercises a limited supervisory role when proceedings already before it is sought to be discontinued.

Other Commonwealth jurisdictions, including India, Nigeria, the United Kingdom and Canada, have also developed protections around prosecutorial discretion, reflecting an international movement towards greater transparency, accountability and protection of public confidence in criminal justice.

The Kenyan experience is therefore instructive: judicial supervision need not undermine prosecutorial independence. Rather, it can strengthen the legitimacy of prosecutorial power by ensuring that its exercise is subject to constitutional and legal standards.

10. The Way Forward
The central issue is not whether the Attorney-General should retain prosecutorial discretion. That discretion is necessary for an effective criminal justice system. The real question is whether that discretion should remain virtually absolute once a prosecution has commenced before an independent court. The answer should be no.

The Constitutional Review Committee’s recommendation should therefore be understood as a protection rather than an attack on prosecutorial independence. It would ensure that the termination of a commenced prosecution is subject to judicial scrutiny while preserving the Attorney-General’s fundamental responsibility for prosecutorial decisions.

The 11-member Constitutional Review Implementation Committee should accordingly recommend that the Government reconsider its position and retain the Review Committee’s proposal.

A suitable reform should ensure that:

• the Attorney-General retains the discretion to initiate and discontinue prosecutions;
• discontinuance after commencement requires leave of court;
• the court reviews legality, procedure and constitutional compliance rather than substituting its prosecutorial judgment;
• appropriate reasons or grounds for discontinuance are provided, subject to protections for genuinely sensitive information; and
• the exercise of prosecutorial discretion remains subject to constitutional standards of fairness, reasonableness and non-arbitrariness.

11. Conclusion
Ghana’s constitutional democracy should not remain bound by inherited legal traditions where those traditions no longer adequately protect constitutional values. The common law remains an important part of Ghana’s legal heritage, but it operates subject to the supreme authority of the 1992 Constitution.

The power of nolle prosequi is too consequential to be treated as an unrestricted prerogative. Once the State has commenced a criminal prosecution before an independent court, the termination of that proceeding affects not only the accused and the prosecution but also victims, the Judiciary and the broader public interest in the administration of justice.

Requiring judicial leave would not abolish prosecutorial discretion or transfer prosecutorial authority to the Judiciary. It would simply ensure that the exercise of this extraordinary power is accompanied by an appropriate measure of constitutional accountability.

The Government’s reliance on historical common-law tradition is therefore insufficient. Ghana’s constitutional order demands that public power be exercised within the discipline of law, fairness and accountability.

The Review Committee’s recommendation should consequently be retained and implemented. Prosecutorial independence should coexist with judicial oversight, and discretion should operate within the Constitution. Such reform would strengthen public confidence in criminal justice, reinforce the rule of law and demonstrate that Ghana’s constitutional democracy is capable of evolving to meet the demands of a modern constitutional state.

Authored by:
Goodnuff Appiah Larbi, PhD
The author 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 at [email protected].