Why the Attorney General’s decision to provide reasons is a step toward legal transparency

In recent discussions surrounding the role of the Attorney General (AG) in legal proceedings, a contentious debate has emerged. Some lawyers argue that the law does not require the AG to provide reasons for their decisions, and therefore, the AG was wrong to do so. I strongly disagree with this position. In fact, I believe that the AG’s decision to provide reasons for withdrawing cases is not only commendable but also essential for fostering transparency, accountability, and the development of our legal system.

The argument that the AG should not provide reasons because the law does not explicitly require it is, in my view, a flawed interpretation of the spirit of justice. As a lawyer friend Ace Ankoma recently reminded me, “Marietta Brew gave reasons why she discontinued the case against KKD. She’s probably the first AG to have done that.”

He also pointed me to case law. The fact of this explanation was captured by Pwamang JSC in his dissenting opinion in Gregory Afoko V Attorney-General (Writ No J1/8/2019; 19 June 2019) as follows: “The purpose of Article 296(c) is to infuse transparency in the exercise of discretionary powers and thereby check abuse of discretion by those upon whom it is conferred. In the case of nolle prosequi, with which we are concerned in this case, published regulations would assure the public that the Attorney-General can be held legally accountable and furthermore, published regulations would provide a framework within which, if the exercise of the discretion of nolle prosequi is challenged, a court can judge the fairness and reasonableness of the nolle prosequi on a case by case basis. In fact, there have been instances where Attorney-Generals under public pressure, have disclosed the considerations that led to the entry of nolle prosequi. In October 1976, the Attorney-General of Ghana went public to explain the factors that led to the entry of nolle prosequi in the case of The Republic v El Helou & Ors which involved high public interest. In recent times, the Attorney-General offered an explanation for the nolle prosequi entered to terminate the prosecution of Kwasi Kyei Darkwa, a popular Ghanaian broadcaster. Is a person in the situation of the plaintiff in this case, who is directly affected by the Attorney-General’s exercise of her discretion, not entitled to know beforehand the factors that were taken into consideration in filing the nolle prosequi in his case?”

“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.” ’This precedent, though rare, highlights the importance of transparency in legal decision-making. It is not enough for the AG to act as a mere executor of the law; they must also act as a steward of public trust.

The AG’s decision to provide reasons for withdrawing cases is a significant step toward achieving this trust. Transparency in such decisions is not just a matter of procedural formality; it is a cornerstone of a functioning democracy. When the AG provides reasons, it opens the door for legal scrutiny, academic analysis, and public discourse. These reasons become a springboard for deeper examination, allowing legal scholars, practitioners, and students to assess the propriety of the decision. Such scrutiny is vital for ensuring that the AG’s powers are exercised responsibly and in the public interest.

Moreover, the provision of reasons sets a precedent for future cases. It creates a body of reasoning that can be studied, debated, and refined over time. This, in turn, enriches our jurisprudence, particularly in areas such as corruption and nepotism, where transparency is often lacking. By unmasking the rationale behind legal decisions, we can confront the systemic issues that plague our justice system and work toward meaningful reform.

Critics may argue that providing reasons could expose the AG to unnecessary criticism or political pressure. However, this concern is outweighed by the benefits of transparency. The AG, as a public official, must be accountable to the people they serve. Providing reasons for their decisions demonstrates a commitment to accountability and reinforces the principle that no one is above the law.

I commend the AG for taking this bold step. It is a move that aligns with the principles of justice and fairness, and it sets a positive example for future holders of the office. I urge legal academics, practitioners, and students of the law to closely examine the reasons provided by the AG. Such analysis will not only determine the propriety of the decision but also contribute to the ongoing evolution of our legal system.

In conclusion, the law should not be a shield for opacity. It should be a tool for promoting justice, transparency, and accountability. The AG’s decision to provide reasons for withdrawing cases is a welcome departure from the status quo, and it is my hope that this practice will become the norm rather than the exception. Let us embrace this opportunity to strengthen our legal system and ensure that it serves the interests of all.

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