Afoko retrial: Prosecution or persecution?

Criminal justice issues have featured prominently in the opening months of the assumption of office by the National Democratic Congress (NDC) led by John Dramani Mahama. 

The new Attorney General, Dr Dominic Akuritinga Ayine, has certainly hit the ground running with decisions that have far-reaching positive consequences for the administration of justice.

I refer to the recent spate of nolle prosequi – a formal notification to discontinue the prosecution of a case – decisions in respect of some high-profile cases pending before the courts.

This decision — which resonates with me, because it aligns not only with my professional beliefs, but more importantly, with international best practice relative to prosecutorial discretion — has engendered fierce discussions within legal, academic and political circles.

Views remain polarised along political lines. However, this is for another day as today's article is focused on what we believe to be one of the instances of a clear abuse of prosecutorial discretion — the trial of Gregory Afoko.

Case

At the press conference where the Attorney General announced the nolle prosequi decisions, the case of Afoko was flagged up by a journalist who sought his view on the fate of Afoko.

Dr Ayine acknowledged the delay that trial had suffered and promised a review of the case. We wholeheartedly support the review, but we urge the Attorney General to discontinue that case entirely as it remains a blot on our criminal justice system.

This is because the case ranks in the high echelons of the most egregious and abusive uses of professional discretion. The answer to the question posed in the heading of this article is a resounding yes! to persecution.

Background

A brief recount of the background to the trial will help situate our conclusions as to why the trial ranks as a perfect example of how not to mess up a prosecution in a modern democratic setting.

In 2015, Alhaji Mahama, the then NPP Chairman of the Upper East Region, died in mysterious circumstances when acid was poured on him.

Gregory Afoko, a brother of Paul Afoko who was removed as National Chairman of the NPP in questionable circumstances at the time, was arrested and charged with the murder of Alhaji Mahama. 

However, after three years of trial, the Attorney General filed a nolle prosequi and discontinued the case when Asabke Alangdi, an alleged accessory to the crime, who was at large, was arrested.

Gregory Afoko, who had been denied bail in the earlier truncated trial was re-arraigned to stand trial together with Asabke Alangdi for the murder of Alhaji Mahama. 
On March 14, 2019, Justice George Buadi, at the High Court, granted Gregory Afoko bail. When the trial of Afoko began again after the addition of Asabke Alangdi at the

High Court, differently constituted, Afoko’s bail was rescinded.

The prosecution argued that the circumstances of the bail that was granted had changed: the bail was granted because there was uncertainty as to when the trial would commence; the state had completed committal and commenced trial; the nature of the offence and expected punishment meant that there was a high possibility that Afoko would abscond.

The trial judge surprisingly obliged the prosecution and Afoko was kept in custody.

On April 27, 2023, a seven-member jury returned a ‘not guilty’ verdict of murder in respect of Afoko.

A re-trial was ordered and poor Afoko is undergoing a third trial. If there was a case that warranted the filing of a nolle prosequi, this is it because, in most advanced jurisdictions and certainly in England where I practised criminal law from 1998, the Crown (prosecution) would have gracefully offered no evidence i.e., nolle prosequi for well-grounded principles under the code for crown prosecutors.

Alex Segbefia, who practised extensively in England, can testify to this.

10 years

Gregory Afoko is undergoing a third trial and has been in custody for 10 years and counting. Given the slow grind of criminal trials in Ghana, I bet he is going to be in custody for as long as his current trial goes on. 

His fundamental and constitutional rights have been grossly abused: right to liberty; right to presumption of innocence; right to be tried in a reasonable time.

If the freedom and justice in our national motto has to resonate with the people, Afoko has to be freed because he has been persecuted — he has suffered unfair and cruel treatment by reason of his identity. Free Afoko has to trend. 

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com