Mercy - Procedural irregularity No 1 It is only the AG who is permitted in law to terminate or discontinue a case using either of two modes; Withdrawal or Nolle Prosequi. This, the AG is allowed to do even without assigning reasons. A prosecutor may lead a withdrawal “with the consent of the court or on the instructions of the Attorney-General at any time before judgment is pronounced...” A complainant may only seek withdrawal of a complaint at the police station. It is trite learning that criminal charges are primarily brought in a court of law only by the AG or on her instructions and all prosecutions conducted in the name of the state. This flows from Article 88(3) and (4) of the 1992 Constitution: “(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences. (4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.” A criminal trial, therefore, is a fight mounted by the state against the accused and it is only the state that can by due process prematurely terminate the trial. Procedural irregularity No. 2 Kenu’s letter was addressed directly to the Judge informing him “to discontinue with the case on health grounds and other related family matters.” We seek adjournments on such grounds not discontinuance. The practice is, if one chooses not to communicate information to the Court orally in open court or in chambers, he must do so by addressing the correspondence to the Registrar of the Court and not the Judge. It has to be properly filed in the Registry of the Court by paying the appropriate charges if any before it can be brought to the attention of the Judge by being placed on the case docket. Procedural irregularity No 3 More importantly, the heading of the letter is wrong as I have already indicated. The procedure of a withdrawal being done at the instance of a Complainant is unknown in our criminal jurisprudence and if the Court elected to construe this letter as a request for settlement, then the Judge erred in striking out the case immediately. The option of out-of-court settlement is available to all parties for the promotion of reconciliation. The law says, “A court with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of an offence not amounting to felony and not aggravated in degree, on payment of compensation or on any other terms approved by the Court before which the case is tried, and may during the pendency of the negotiations for a settlement, stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person. So this case being non felonious and perhaps non aggravated in degree but probably a minor misdemeanour is liable to this process and if this, in substance, was what was intended and effected, the case ought to have been adjourned pending the filing of Terms of Settlement and/or the announcement of such subject to the approval of the court. Doc Ernest Kwarko this is the more specific part to confirm Ndebugris position. - See more at: graphic.gh/features/opinion/31091-kenu-police-judge-all-caught-in-fatal-error.html#sthash.ltJMWEwN.dpuf
Posted on: Fri, 16 Jan 2015 05:29:04 +0000
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