The widely-publicised and much-talked-about Woyome criminal trial at the Accra Fast Track High Court has made the Latin legal term, nolle prosequi, a matter of common public interest after the prosecution filed a nolle prosequi to discharge Mr Alfred Woyome and three accused persons of various counts, including defrauding by false pretences, corrupting a public officer, conspiracy and abetment.
According to Wikipedia, nolle prosequi literally means "be unwilling to pursue." The phrase means to "do not prosecute." It is a concept that is practised in many common law criminal jurisdictions like the UK, most parts of the US and Ghana.
Nolle prosequi as a declaration is most often used in criminal cases but some jurisdictions make use of nolle prosequi in civil law suits. The prosecution can decide to discontinue criminal charges voluntarily before, during or after a trial when a verdict is not given. Courts hardly refuse to accept applications for nolle prosequi. In criminal cases in the US, it has been held improper for a court to enter an order of nolle prosequi suo motu (on its own) without a motion by the prosecutor. Similarly, in Ghana, a judge has no power to refuse a nolle prosequi but s/he must be satisfied that the officer is above the rank of state attorney and has the approval of the Attorney-General (A-G).
Article 88 (3) of Ghana's Constitution solely gives the A-G the power of prosecution: "The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences." Thus, the country does not have private prosecutors as other jurisdictions do. The A-G's Department offices in all the ten regions must send copies of their advice to the A-G in Accra. The Director of Public Prosecutions (DPP) normally reviews the advice and accepts or rejects such advice. At the lower courts (District court and circuit co urt), the A-G delegates its prosecutorial function to a Police Officer of the rank of Sergeant and above. In prosecuting cases on indictment, the A-G prepares the bill of indictment which is made up of the charge sheet and the summary of evidence. The charge sheet is made up of a statement of the offence and the particulars of the offence written at a Police Station. Summary of evidence? All witnesses write or give oral accounts of the events that caused the offence to the police who write the oral statements down concisely and include the objects (like knife, gun, etc.) used to commit the offence as the summary of evidence.
Section 54 of the Criminal Procedure Code, 1960 (Act 30) states that in any criminal case, and at any stage of it before verdict or judgment is given by the court, and in the case of preliminary (committal) proceedings before the District Court, whether the accused has, or has, not been committed for trial, the A-G may enter a nolle prosequi either by stating in court or by informing the court in writing that the state intends that the proceedings should not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered. If s/he has been committed to prison, s/he shall be released, or if on bail, his/her recognizances (sureties) shall be discharged. But the discharge of the accused shall not operate as a bar to any subsequent proceedings against him on account of the same facts.
For that matter, the A-G can later prosecute the discharged person at any time because the nolle prosequi does not serve as an acquittal. The legal protection rendered by the principle of double jeopardy ensures that an accused person is not tried again for a crime of which s/he has been discharged and acquitted. Though statute law does not require Ghana's A-G to give reasons for declaring a nolle prosequi, it may be entered based on some grounds. Nolle prosequi may be made because the charges cannot be proved due to very weak evidence to carry the burden of proof; the evidence is fatally flawed in light of the charges/claims brought; the prosecutor has become doubtful of proving the accused's guilt beyond reasonable doubt; and because the accused is dead. Nolle prosequi is also used to control prosecution; and to ensure that justice is done. It is not used to correct deficiencies in the prosecution process.
Furthermore, NRCD 279 allows all officers not below the position of state attorney to exercise all powers conferred on the A-G.. Section 55 of Act 30 empowers the A-G to delegate certain individuals to exercise the power of nolle prosequi: "(1) The Attorney-General may order in writing that the powers expressly vested in him by section 54 of this Code be vested for the time being in any person appointed to sign indictments or to represent the State at trials on indictment at any place; and the powers may be exercised by any such person accordingly." The A-G has a standing order that enjoins any attorney who enters a nolle prosequi to have very good reasons for doing so. The A-G only accepts the reasons if they are in the interest of justice.
The matters arising from the Woyome case are that: the entering of the nolle prosequi means the discharged three accused persons could be re-arrested and re-charged with the same offences at any time. note that criminal offences are not time and statute - barred.Why did the state enter a nolle prosequi for all the accused but re-arrested and re-charged Woyome alone? Since no reasons were given by the A-G for the action, some people speculate that the accused were discharged because the prosecution intends to use them later as prosecution witnesses.
Another permutation of the case is that some lawyers want the discharged accused persons to test the law by applying to the Supreme Court to compel the A-G to give reasons for the nolle prosequi since article 296 (a) and (b) of the Constitution mandates persons in whom discretionary powers are vested to have "a duty to be fair and candid" and "shall not be arbitrary, capricious, or biased" in exercising the powers.