Accounting professor and private legal practitioner Kwaku Asare, aka Kwaku Azar, has issued a statement requesting further clarification from the Attorney-General regarding the recent nolle prosequi entered in the case of Republic v. Kwabena Duffour & 7 Others.
While acknowledging the Attorney General’s constitutional discretion, he called for greater transparency and public confidence in matters of national significance, particularly concerning the recovery of state resources.
The statement issued on Tuesday, July 22, 2025, demanded answers to the legal basis and procedural details of the decision.
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The lawyer wants to know if the nolle prosequi is grounded in Section 35 of the Courts Act, 1993 (Act 459).
According to him, it was also important to establish whether a court-supervised settlement was undertaken and if a corresponding court order exists approving the terms of recovery and discontinuance, as legally required.
He further argued that if the decision to file for nolle prosequi was based solely on the Attorney-General’s prosecutorial discretion, then such discretion must be exercised transparently, non-capriciously, and in the public interest.
He acknowledged that 60% recovery may be pragmatic but questioned if the remaining 40% is unrecoverable and/or if efforts will be pursued.
In his view, this sends a message that public officers can avoid legal consequences through negotiation, asking how the state will mitigate this moral hazard.
“There is growing concern, as Ghanaians observe these outcomes, that financial crimes are being treated as risk-free activities: loot, negotiate, refund a fraction, walk free. That is not justice. It is impunity dressed in due process,” he stated.
Read below his full statement
RE: PRESS RELEASE ON NOLLE PROSEQUI IN REPUBLIC V. KWABENA DUFFOUR & 7 OTHERS
GOGO has sighted the press release dated July 22, 2025, signed by Hon. Dr. Justice Sai, announcing the Attorney-General’s entry of a nolle prosequi in the case of Republic v. Kwabena Duffour & 7 Others.
While GOGO acknowledges the Attorney-General’s constitutional discretion under Article 88 and appreciate the effort to provide some justification, we respectfully seek further clarification to foster transparency and public confidence in the process, especially in a matter of such national significance.
A. Legal and Procedural Clarifications
- Is this decision grounded in Section 35 of the Courts Act, 1993 (Act 459)?
If so, was a court-supervised settlement undertaken, and is there a corresponding court order approving the terms of recovery and discontinuance, as the law requires? - Alternatively, if the decision is based solely on the Attorney-General’s prosecutorial discretion,
we submit that such discretion, while constitutionally grounded, must be exercised transparently, non-capriciously, and in a manner consistent with the public interest. In that spirit:
a. Who are the “relevant State agencies” that collaborated in determining and verifying the 60% recovery threshold?
b. How was the 60% recovery threshold determined? What methodology was used to value the losses and the recoveries? Were interst and time value of money principles taken into account? Was this threshold applied uniformly across similar prosecutions?
c. When and how was the recovery threshold met? Were recoveries made in cash, assets, or undertakings? What mechanisms are in place to ensure the recoveries are secured and irreversible?
d. How prolonged were the negotiations? Over what period did these discussions occur? Were they conducted transparently, and were the Auditor-General or any external auditors, civil society observers, or victims consulted?
e. Will Parliament be apprised of the full terms of the settlement and recovery? In the interest of democratic oversight, will details of the agreement, valuations, and benchmarks be shared with the relevant committees?
B. Alignment with Operation Recover All Loot (ORAL)
The press release suggests that the decision to enter a nolle prosequi aligns with a broader national objective of recovering State resources. If this reflects or is meant to support Operation Recover All Loot (ORAL), the following issues arise:
a. Partial Recovery ≠ Full Recovery:
A 60% recovery may be pragmatic, but it falls short of the full accountability suggested by ORAL. Can the public be assured that the remaining 40% is unrecoverable, or will future efforts continue?
b. Rule of Law and Deterrence Risks:
Without conviction or trial, there is a risk of sending the wrong message—that public officers or financial elites can bargain their way out of legal consequences. How will the State mitigate the moral hazard this precedent could create?
c. Public Confidence and Transparency:
For ORAL to succeed, the public must see not just asset recovery, but accountability and justice. How will the Attorney-General’s office ensure that this decision does not erode public trust in anti-corruption efforts?
d. Consistency in Application:
Will similar arrangements be offered to others under investigation in the financial sector clean-up? Is there a transparent, published policy that governs when nolle prosequi will be exercised in asset recovery cases?
e. Complementarity with Civil or Regulatory Sanctions:
Does this decision affect any parallel civil or regulatory proceedings against the accused? If not, will the State still pursue further measures to prevent unjust enrichment?
C. The Need to Revisit Section 35
This case also highlights the urgent need to revisit Section 35 of the Courts Act. What began as a tool to encourage restitution has, in some instances, become a loophole for powerful individuals to avoid criminal responsibility through negotiated settlements, often behind closed doors.
There is growing concern, as Ghanaians observe these outcomes, that financial crimes are being treated as risk-free activities: loot, negotiate, refund a fraction, walk free. That is not justice. It is impunity dressed in due process. If unchecked, it will corrode public confidence and institutional legitimacy.
We commend the Attorney-General’s office for offering some justification for this decision, but we urge that full disclosure, judicial supervision, and policy consistency be observed in all future cases.
Without these safeguards, such actions, however well-intentioned, risk undermining both the letter and the spirit of Operation Recover All Loot.
Respectfully,
GOGO
Da Yie!
By: Rainbowradioonline.com/Ghana
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