In a unanimous decision, the Supreme Court (SC), yesterday, dismissed a case filed by Gregory Afoko, challenging the decision of the Attorney-General (A-G) to discontinue his trial at the High Court.
The A-G filed nolle prosequi on January 28, 2019 to end the trial of Afoko, following the arrest of alleged accomplice, Asabke Alangdi in neighbouring Abidjan, Cote d'Ivoire on January 25, over allegations that the duo conspired to murder Adam Mahama, the former Upper East Regional Chairman of the New Patriotic Party (NPP).
Displeased by the decision of the A-G, the plaintiff, acting through his counsel, K. Osafo- Buabeng, filed a writ at SC, and contended that that the entry of nolle prosequi is inconsistent with or is in contravention of articles 23 and 296 of the 1992 Constitution and should be declared as such.
In his writ invoking the original jurisdiction of the SC, Afoko asked for a declaration that the nolle prosequi filed by the A-G on January 28, 2019, is a violation of articles 23 and 296 of the 1992 Constitution, and therefore, "unconstitutional, null and void".
The plaintiff further contends that with the coming into force of the 1992 Constitution, the power of nolle prosequi is subject to constitutional provisions and any exercise of the power of nolle prosequi under section 54 of the Criminal and Other Offences Procedure Act, 1960 Act 30 must be consistent with the constitution.
But, ruling on the case, a seven-member panel of judges stated that Afoko failed to prove that the nolle prosequi entered by the A-G was unfair, arbitrary or capricious.
Canvassing his arguments in opposition, a Deputy A-G, Godfred Yeboah Dame said the invocation of the SC by plaintiff was improper as there is no genuine constitutional interpretation raised in the plaintiff's action.
The defendant argued that the true import of the plaintiff's action is to seek judicial review of the decision of the A-G to file nolle prosequi, adding that the instant action is nothing but a disguised application for judicial review.
Assuming the court's jurisdiction had been properly invoked, the deputy A-G contended that all aspects of prosecutorial authority of the A-G are executive functions and that such functions are not subject to the duty to publish regulations in accordance with articles 296(c) and 11(7) of the constitution.
It is the case of the defendant that an application of articles 296(c) and 11(7) will have the effect of a "nuclear meltdown" of the prosecutorial work of the Attorney-General."
Afoko's trial started in 2016 and was nearing completion after the prosecution and the defence had closed their cases.
On January 26, 2019, Afoko closed his case after he and John Ishmael Afoko, his brother had testified.
The prosecution, led by a chief state attorney, Mr Matthew Amponsah, had called 14 individuals as prosecution witnesses.
The facts are that, the late Mahama lived in Bolgatanga with his wife.
On May 20, 2015, he left home in the morning at about 7am for his construction site in his Toyota Pick-Up with registration number MR761-14.
He returned home at about 11pm and stopped his vehicle at the entrance of his house.
Prosecution said that as soon he stopped two men signalled for him to roll down the window of his vehicle which he did.
The two men then poured the acid on his body including his face and head, after which they fled on a motorcycle.
The deceased screamed for help and his wife and other neighbours rushed to his aid and sent him to the Bolgatanga Regional Hospital where he passed on the following morning.
Prosecution alleged that the late Mahama mentioned to his wife and other witnesses that Afoko and Asabke poured the acid on him.