Abstract
In February 2025, the Attorney-General of Ghana announced reasons for discontinuing high-profile cases involving former Government officials and businesspeople. Article 88 of the Constitution of Ghana, 1992, gives the Attorney-General the power to conduct prosecutions on behalf of the State, including the discretion to enter nolle prosequi. In Afoko v Attorney-General [2019] DLSC 6356, the Supreme Court of Ghana affirmed the exercise of this discretion as an executive act, not subject to article 296(c), which requires non-judicial officers to publish regulations governing their discretion. This article argues that the Supreme Court missed an opportunity to address a fundamental constitutional question: whether the exercise of the power of nolle prosequi is subject to judicial review under article 296(a) and (b), which mandate fairness, candour, and nonarbitrariness in discretionary acts. By confining its analysis to article 296(c), the Court did not evaluate the Attorney-General’s prosecutorial discretion against the broader constitutional and administrative law standards required by articles 23 and 296(a) and (b). The article further contends that decisions to enter nolle prosequi are, in principle, reviewable in all cases, and that, where the Attorney-General gives reasons, courts should assess the reasonableness of those reasons against constitutional and administrative standards. Drawing on common law jurisdictions, this article outlines the conditions for reviewing prosecutorial discretion and proposes a structured standard of review inspired by the Canadian reasonableness doctrine, as articulated in Canada (Minister of Citizenship and Immigration) v Vavilov [2019] SCC 65.
