A few weeks ago, the Attorney General’s Department filed a ‘nolle prosequi' application in the case of the Republic v Kwabena Duffour and others.
The Deputy Attorney-General, Dr Srem Sai, explained that following prolonged plea bargain negotiations and the recovery of 60 per cent of the sum of money which is the subject of the prosecution, proceeding with the trial would not serve any additional public purpose.
One of the main factors in the professional determination of whether to prosecute or not by the Attorney-General’s Department is the public interest aspect.
The decision has, as expected, generated heated debate in the media, not least among lawyers and professionals involved in the criminal justice system.
The decision has polarised the nation again: there are those who hail it and there are others who condemn it.
For some, the decision to continue the Unibank trial is like giving ‘carte blanche’ for public officials to steal money as they can always offer to pay 60 per cent of it in plea bargain negotiations in order to get off the hook of prosecution.
This, they claim, would undermine the state’s efforts to combat corruption, thus corrupt public officials would have a field day in looting public money.
Without wanting to dismiss the arguments of those against that move (discontinuance), it is also worth pointing out other aspects of the decision to discontinue which are not, in my humble opinion, receiving equal attention.
At the heart of any prosecution is whether there is enough evidence to secure a conviction.
Even though it has not been explicitly stated, the prosecution might be having problems with the evidence at their disposal.
If that is the case, then discontinuing the case after 60 per cent of the money involved had been recovered would not be untoward.
This is because it is far better to recoup 60 per cent of the money than to go to trial and lose everything when the accused is acquitted.
Not only will the state recover substantial sums but a lot of savings will accrue in time and resources by not proceeding with the trial.
Put in the context of the collapse of the trial of Mr Nyinaku of Beige Capital, where the accused has been acquitted following a submission of a ‘no case’ application midway in the trial, the decision of discontinuing the trial through a ‘nolle prosequi’ application might make sense if the Attorney-General is facing problems of reaching the high standard of proof in criminal cases which is proof beyond doubt.
The jury is out on this one.
Plea bargaining
What then is plea bargaining? It is essentially an arrangement between the prosecution and the defence in a criminal case whereby the accused pleads guilty to a lesser charge or reduced sentence or in some cases for the complete withdrawal of the whole case.
The advantage for the prosecution is that it saves them the time and resources that going through a full trial would present.
At a press conference, the Attorne -General painstakingly explained the factors that influenced the decision to file the ‘nolle prosequi’ in the case against Dr Duffour and others.
According to him, the evidence against the accused persons is not guaranteed to achieve a successful conviction. In other words, there is the possibility of not securing a conviction, as has happened in the Beige Capital case.
If, indeed, the way to a successful conviction is not clear cut then the decision to offer the withdrawal in exchange for receiving 60 per cent of the amount lost to the state might be a smart move.
This is because the state will retrieve a substantial part of the cash lost as opposed to getting nothing in the event that the prosecution fails. What might be the driving force in settling for part of the money as against losing everything is the high criminal standard of proof: proof beyond reasonable doubt.
If there are doubts in the case, the accused persons will be acquitted. In light of the Beige Capital case where the Attorney-General is licking his wounds by refusing to accept a GH¢10 million offer by the defence in a plea bargain arrangement only for the accused to be acquitted, might have played on the Attorney General’s conscience when deciding to withdraw the matter from court.
They say ‘half a loaf is better than none’ or, as Kofi Englishman, the renowned Pupil Teacher of ‘Konkonsa’ (gossip) town used to say, “half a loaf is better than bread!” I leave you with that immortal phrase.
The writer is a lawyer.
E-mail: georgebshaw1@gmail.com
