Ladies and Gentlemen of the Media:
Upon assumption of office as the Attorney General and Minister of Justice, I have taken decisions on certain prosecutions that were instituted by my predecessors, the Honourable Gloria Akuffo and the Honourable Godfred Yeboah Dame.
Specifically, I decided to drop the criminal charges laid against certain persons including those who served in the Government of the National Democratic Congress (NDC) that left office in January 2017.
I did so mindful of the fact that I am serving in a government that came to power on the back of promises of exacting accountability from everyone who has served or is serving in public office. I am here today to account to my fellow citizens for the decisions I have taken so far.
As Attorney General, I am keenly aware that the prosecutorial authority vested in me under article 88 of the Constitution is discretionary in nature and is subject to the constitutional requirements set out in articles 296 of the Constitution.
The import of these constitutional requirements is that, in the exercise of my prosecutorial power, I must not only act reasonably and fairly and comply with all the requirements imposed on me by law but also, I must be candid with those whose life and liberty depend on my decisions.
In addition, the Constitution requires that my decision to prosecute should not be “capricious or biased whether by resentment, prejudice or personal dislike”.
Before taking any of the decisions I am about to explain, I consulted widely:
- I had several briefings from the Director of Public Prosecutions (DPP) on each of the cases. Where I disagreed with her, I made my disagreement known to her with reasons.
- I spoke to the defense lawyers in each case and, again, where there were disagreements, as for instance in the banking clean-up cases which I shall deal with shortly, I made my views known to the lawyers.
- I spoke to some of the investigators involved in the cases at hand to get a sense of what they found during their investigations of the cases.
- Finally, I met with and discussed the banking sector cases with at least one of the receivers involved in these cases. I have scheduled a meeting with the second receiver.
Ladies and Gentlemen of the Media:
The traditional view within the legal profession has always been that the Attorney General owes nobody an explanation for his decision to enter a nolle prosequi (Latin for “there shall be no prosecution”) or terminate a prosecution.
But that view does not comport with the architecture of our Constitution, and I absolutely disagree with it. As ably articulated by Pwamang JSC in his concurring opinion in Gregory Afoko vrs Attorney General, Suit No. J1/8/2019, Supreme Court, 19th June 2019, at p. 20:
“The decisions to prosecute and to terminate prosecution of suspected offenders is a matter of immense public interest. Furthermore, it affects the rights of the suspected offenders who may be compelled to suffer the indignation of prosecution when there is seriously no point in mounting prosecution on the facts of the case. It is because of these considerations that the modern trend in democracies is for prosecutorial authorities to be open about the factors on which they take the decisions to initiate or terminate prosecutions.”
Therefore, my decision to be open and transparent about the factors animating the entry of nolle prosequi in some cases and withdrawal of others is not only because I wish to avoid accusations of partiality and or capitulation to political pressure but also to comply with the constitutional requirements stated in article 296 of the Constitution. Moreso, in the best ethics of the legal profession, every lawyer is mandated to act in the best interest of his client and no lawyer worth his or her salt will purport to act in the best interest of the client by doing so on the blindside of the client.
As Attorney General, my only client is the Republic of Ghana represented by its sovereign people. And as stated above, I intend to provide the reasons for my decisions in the cases in which I have either entered a nolle prosequi or withdrawn the charges laid against the accused persons involved to my fellow citizens who have entrusted this power to me through the President of the Republic.
Ladies and Gentlemen of the Media:
Before I proceed to assign the reasons for my decision in each of the cases, I wish to crave your indulgence to provide a brief explanation of the technical difference between the entry of a nolle prosequi and the withdrawal of charges.
The power to enter a nolle prosequi is contained in section 54 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Pursuant to this provision, the Attorney General may enter a nolle prosequi at any stage of a criminal trial.
The statute does not itself require the Attorney General to provide any reasons for his decision to abate proceedings by entering the nolle prosequi.
However, as I have made clear above, the constitutional principles in article 296 impose an obligation on the Attorney General to be candid in the exercise of discretionary power and I cannot fathom how one can be candid without explaining one’s actions.
When a nolle prosequi is used by the Attorney General to terminate proceedings in a criminal trial, he reserves the right to bring fresh charges against the accused person in the future.
In contrast, the Attorney General may terminate criminal proceedings by withdrawing the charges against an accused person pursuant to section 59 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).
Where the charges are withdrawn after the prosecution has closed its case, then the legal effect of the withdrawal is that the accused is deemed to have been acquitted and discharged.
So, in all the cases in which I have withdrawn the charges against the accused persons, and the prosecution has closed its case, those accused persons are considered to have been acquitted and discharged.
Ladies and Gentlemen of the Media:
My decision to terminate the criminal trials was animated in the main by three factors. The first was that for ethical and professional reasons, I could not in good conscience continue to prosecute some of the cases.
The second was that, for some of the cases, my own review and analysis of the charges showed clearly that the charges were defective, and some were filed against the promptings of plain commonsense.
The third reason was that, in some of the cases, the evidence led so far showed that there was reasonable doubt as to the guilt of the accused persons and no prosecutor should continue to pursue a case in the face of overwhelming doubt regarding the guilt of the accused.
Also, it is important to highlight the fact that in most of the cases in which I have terminated proceedings, the conduct of some of the individual judges left much to be desired. I will deal with the issue of judicial conduct in my concluding remarks. Suffice it to say that it raises the specter of lack of fairness in criminal proceedings where a judge is seen to be overly hostile to the accused and unreservedly deferential to the prosecution.
Now to my first substantive reason for dropping charges in some of the cases. As noted above, for purely ethical and professional reasons, I could not in good conscience continue to exercise my prosecutorial authority under article 88(3) in some of the cases. These cases were the Republic v. Cassiel Ato Forson & Another and Republic v. Ofosu Ampofo & Another.
This is because I was deeply involved as counsel in these two cases. In the case of Republic v. Ato Forson, I was not counsel of record but my junior partner, Godwin Kudzo Tameklo was. As a team, we discussed our case strategy in chambers, and I was involved in reviewing legal arguments and in some instances authoring some of the arguments that we filed. I believed then and still believe now that the Honourable Ato Forson was the victim of a political witch-hunt and that he had no case to answer in that trial.
That position was vindicated by the erudite judgment of the Court of Appeal which ruled that the trial court erred in calling upon the accused persons to mount their defence. When the then Attorney General vowed to file an appeal and actually went ahead to do so, I took the view that it was done to save face and that there was not a scintilla of merit to his appeal. Indeed, the appeal was, to say the least, incompetent.
My involvement in the case of Republic v. Ofosu Ampofo & Another is a matter of public record. At the initial stages of the trial, I was on record as counsel with the venerable Tony Lithur and my former boss, the Honourable Marietta Brew. It was our position as a team that the charges against the Honourable Ofosu Ampofo were trumped up and motivated purely by politics. I still stand by that view.
Ethically, a prosecutor should and must have the courage of his convictions and must remain fearless to stand by those convictions even in the face of a severe storm of public criticism. Strident criticism should not be reason why a self-respecting prosecutor must abandon his professional convictions in favor of political praise.
So, I am owning up to stand by the professional decision I took that in my current position as Attorney General, and the prosecutor for that matter, I was not going to suddenly recant my position and continue to prosecute the accused persons in the two cases. No new evidence has been presented to me upon assumption of office as Attorney General to cause me to abandon my professional convictions.
As an aside, in any decent constitutional democracy, the disgraceful and unethical conduct of the former Attorney General in interfering with a key witness who also happened to be the second accused in the Ato Forson case should have resulted automatically in a mistrial. But let us leave that for another day.
Ladies and Gentlemen of the Media:
The second reason why I dropped the charges in some of the cases, as I stated above, is that the charges were defective and, upon careful scrutiny, were filed against the promptings of plain commonsense. In the case of the Republic v. Collins Dauda & Others, for instance, the first accused was charged with misapplying public property (funds) in the sum of Two Hundred Million United States Dollars (USD200million).
In laying the charges, the prosecution failed and or neglected to take account of the basic fact that it was part of that US$200m that was used to construct the houses at Saglemi. In other words, the value of that built environment is, in my considered opinion, a key determinant of how much of the total sum was allegedly misapplied by the Honourable Collins Dauda. Discounting the value of the built environment renders the charge defective.
The prosecution in this case also failed and or neglected to take account of payments that were made by other Ministers who took office after the Honourable Collins Dauda. For instance, the Honourable Atta Akyea as Minister of Works and Housing approved a payment to the tune of US$5million in 2017. That ought to have been considered in determining the value of state funds that the Honourable Collins Dauda had misapplied.
In criminal law, an accused is entitled to know with precision the crime that he has committed and the burden that he must discharge in order to prove his innocence. This is basic criminal jurisprudence and the charges in this case failed to meet the standard of precision required to put an accused person on notice of his criminal liability.
Ladies and Gentlemen of the Media:
The third reason why I dropped the charges in some of the cases was that the evidence adduced so far fell significantly short of what was required to convict the accused and yet the state pressed on with the prosecution.
I consider that to be a total waste of state resources. As noted by Pwamang JSC in Afoko v. Attorney General, the prosecution may enter a nolle prosequi in situations where upon review of the proceedings, the Attorney General detects fatal flaws in the case which may lead to the acquittal of an accused person. In other words, a nolle prosequi may be entered to avoid a possible verdict against the prosecution.
My review of some of the cases certainly revealed fatal flaws in the case of the prosecution. A few examples are in order. In two of the banking trials still on-going, I took the decision to withdraw the charges against Johnson Pundit Asiama for the simple reason that in the course of my review of the cases, my attention was drawn to an internal memo prepared by the Prosecutions Division of the Department for the attention of the former Attorney General which recommended that the charges against him be dropped. Note that Johnson Pundit Asiama was charged with contravention of the Bank of Ghana Act for granting a facility of Ghs300million to Universal Merchant Bank and for causing financial loss to the state in the sum of Ghs150million. The internal memo concluded as follows:
“A study of the facts of the case indicates that the initial facility of Ghs300 million has been recovered, leaving GHS150 million outstanding. The Office has confirmed from the Bank of Ghana (through Mr. Alexander Taah, PW2), that the interest from the outstanding amount is presently being serviced by UMB Bank.
Mr. Taah also indicated that UMB has an amount of GHS150 million locked up with CBG. It is expected that when the said sum is released to UMB, the loan amount for which A3 [Johnson Pundit Asiama] was charged with causing financial loss will be repaid to the Bank of Ghana. This therefore may render the charges proffered against A3 moot, leading to his discharge.”
Obviously, the former Attorney General failed to act on these recommendations which were made to him by the Prosecutions Division. If he disagreed with the recommendations, I am unable to say but I agree with them.
Based upon these recommendations, I dropped the charges against Johnson Pundit Asiama in both the Unibank and UT Bank cases. In coming to this decision, I am fortified by the Rule 40(2)(a) of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423) which provides that, in a criminal case, a prosecutor shall refrain from prosecuting a charge that the prosecutor knows is not supported by the facts.
But note that I have not yet dropped the charges against the remaining accused persons because I am currently in discussions with the receivers in order to understand the financial implications of any decision I may take in these cases.
Ladies and Gentlemen of the Media:
My third reason for dropping the charges was that, in some of the cases, the evidence led so far showed that there was reasonable doubt as to the guilt of the accused persons and, as stated earlier, the ethics of the legal profession mandate that a prosecutor should not continue to pursue a case in the face of overwhelming doubt regarding the guilt of the accused. In other words, where a charge is not supported by the facts and evidence, a prosecutor is ethically enjoined to drop the charges.
In the case of Republic v. Stephen Opuni & Another, the entire case was built around the fact that an untested liquid fertilizer, Lithovit fertilizer, was purchased by COCOBOD and further that this fertilizer was not efficacious. In the event, according to the case of the state, all sums of money spent by COCOBOD to purchase this fertilizer caused a financial loss to the state.
Rather strangely, not a single farmer was called by the Prosecution to prove this fact. On the contrary, officials at COCOCBOD who were invited by the investigators, gave statements to the effect that Lithovit fertilizer was one of the most effective fertilizers purchased by COCOBOD and that farmers preferred this Lithovit fertilizer to the granular fertilizer. More importantly, in the course of the investigation, COCOBOD took statements from two farmers. Whiles 1 (one) stated that he did not see any significant change on his farm, the second farmer stated that after using Lithovit fertilizer, he saw a significant increase in yield, and that Lithovit fertilizer is a very good fertilizer.
Again, in the course of the trial, the defence tended an official report from COCOBOD which covered field visits by COCOBOD officials. The report, which was tendered, is to the effect that Lithovit fertilizer is a very good fertilizer and that farmers actually preferred Lithovit fertilizer to other fertilizers and was the fertilizer of choice in areas in which Lithovit fertilizer was supplied. This is clear evidence that contrary to the case of the Prosecution, the use of Lithovit fertilizer rather increased yield. The farmers who used Lithovit fertilizer, including the then national best farmer, in their evidence testified that Lithovit fertilizer use increased their yield and that Lithovit fertilizer is a good fertilizer.
During the course of their investigations, the investigators had two reports from Ghana Standards Authority on Lithovit fertilizer. The first report, which was later confirmed to have been done at the cosmetics department (the department which doesn’t have the mandate to test lithovit) of the Ghana Standards Authority, indicated that the sample of Lithovit fertilizer submitted for testing did not have any fertilizer ingredient in it.
This finding was challenged by the accused persons and the investigators, together with representatives of COCOBOD, and the suppliers of Lithovit fertilizer took a second sample from the warehouse of COCOBOD. This sample which was again tested by the same Ghana Standard Authority, but this time, by the proper department with the mandate to test fertilizers, concluded that the samples taken was the fertilizer and that the fertilizer was efficacious.
Furthermore, it is interesting to note that in this case, the complainant Dr. Adu Ampomah who was the 3rd prosecuting witness, PW3, lied under oath, to implicate the accused persons for which reason a perjury application was filed by Dr. Stephen Kwabena Opuni against him. The then trial judge, Justice Honyenuga, for reasons which are totally unacceptable, did not hear the application, but rather stated that hearing the application would prejudice hearing of the main case. He therefore adjourned the application until the conclusion of the case. This is most unacceptable because in a criminal trial it is important to hold the scale of justice evenly and any doubt raised must inure to the benefit of the accused.
Ladies and Gentlemen of the Media and my fellow country men and women:
The judiciary in our country is independent under the Constitution. In the context of criminal justice, judges demonstrate their independence by remaining neutral and impartial arbiters in disputes between the state and individual citizens. The scales of justice must be held in a delicate balance between the obligation of the state to prosecute crime and the right of the accused to a fair trial. Conduct by judges that undermines the fair trial rights of citizens should be concerning to the prosecution.
Without meaning to impugn the integrity of any of the judges who were involved in the cases in respect of which I have either entered a nolle prosequi or withdrawn the charges, I am deeply concerned not only about the conduct of some of the judges but also concerned about the fact that the executive branch took certain actions that could be reasonably interpreted as inducements to convict the accused persons. An ethical prosecutor must endeavor to protect the innocent and convict the guilty and one cannot do so if the judiciary is not impartial.
When Justice Honyenuga single-handedly expunged otherwise exculpatory evidence from the record in the Opuni case and then proceeded to rule that the accused had a case to answer in his ruling on their submission of no-case, he was far from portraying a vraisemblance of neutrality. Indeed, he directly undermined the fair trial rights of the accused persons. Again, when, in accordance with law and practice, Justice Anokye Gyimah decided he was going to hold a de novo trial in the same Opuni case, he was instantly transferred to Kumasi and the case was allocated to a new judge who then proceeded to adopt the proceedings.
Also, the decisions by the executive branch of government to promote some judges who were sitting on some of the cases is very concerning. The perception whether true or not is that the promotion may be an inducement to convict the accused persons.
Ladies and Gentlemen of the Media and my fellow country men and women:
In conclusion, I wish to make it clear that I did not take these decisions lightly. As I indicated above, I consulted widely and reviewed the files diligently before coming to a decision on each of the cases. You would note that in some cases, such as the SSNIT case and the banking cases, I withdrew charges against some of the accused persons while others are under consideration. I am keenly aware of the need to balance the public interest against the interests and rights of the accused persons.
Also, as Attorney General, I take absolute responsibility for all the decisions taken so far. I am not under any instructions or pressure to discontinue any case or to bring charges against one. Those who are in a haste to tag the President as a clearing agent should hasten slowly because he is not responsible for prosecutions and has not directed me to drop any case. Moreover, with the exception of one charge of bribery in the Opuni matter in respect of which no evidence was led, none of the persons affected by my decisions so far has looted state resources. There is a gulf of difference between the offense of causing financial loss to the state and the offenses of bribery, corruption or that of using public office for private gain. In the latter offenses, the individual charged can be accurately labelled as looters; in the former it would be thoroughly unfair and defamatory to label the accused as persons who have looted state resources.
Thank you and God bless you.