Prominent legal scholar Professor Stephen Kwaku Asare, also known as Kwaku Azar, has raised serious constitutional, legal, and public interest concern
Prominent legal scholar Professor Stephen Kwaku Asare, also known as Kwaku Azar, has raised serious constitutional, legal, and public interest concerns following the decision by Ghana’s Attorney-General to enter a nolle prosequi in the high-profile criminal case involving Dr. Kwabena Duffuor and seven others.
The move effectively discontinues prosecution in the Republic v. Kwabena Duffuor & 7 Others — a decision Kwaku Azar argues demands transparency and critical scrutiny, especially in light of Ghana’s ongoing anti-corruption campaign.
The Attorney-General, through a press statement dated July 22, 2025, and signed by Deputy Attorney-General Dr. Justice Srem-Sai, announced that the state would no longer pursue criminal proceedings in the case.
The release attempted to justify the decision on grounds of resource recovery, claiming that the state had successfully retrieved 60% of the value allegedly lost.
However, Kwaku Azar, writing on behalf of the civic group GOGO (Governance and Good Order), has asked the Attorney-General’s office to clarify the legal foundation for this action.
He questions whether the nolle prosequi was initiated under Section 35 of the Courts Act, 1993 (Act 459), which allows for court-supervised settlements in cases involving restitution to the state.
If so, he asks, was there a court order approving such a settlement, and was the process transparent and legally compliant?
Alternatively, if the decision was solely based on the Attorney-General’s discretionary powers under Article 88 of the Constitution, Kwaku Azar stresses that even such powers must be exercised non-capriciously and in alignment with the public interest.
Recovery Process Oversight: Who determined the 60% recovery threshold, and by what metrics? Were interest, inflation, and time value of money considered? And what form did the recoveries take — were they cash payments, asset transfers, or mere promises?
Transparency in Negotiations: Over what period did these negotiations occur? Were external auditors, the Auditor-General, civil society groups, or the victims of the alleged financial mismanagement involved in these discussions?
Parliamentary Accountability: Will the full terms of the settlement, including valuation documents, be submitted to Parliament? Will the Public Accounts Committee or other oversight bodies be allowed to scrutinise the deal
Kwaku Azar also questions whether the discontinuance aligns with the government’s recently launched anti-corruption initiative known as Operation Recover All Loot (ORAL).
While the Attorney-General’s office claims this decision supports ORAL’s objectives, Kwaku Azar argues that partial asset recovery cannot substitute for legal accountability.
“A 60% recovery may be pragmatic,” he writes, “but it falls short of the full accountability ORAL promises. Without a conviction or trial, we risk sending the message that financial elites can negotiate their way out of justice.”
The concern is that such precedents may undermine the deterrent effect of prosecution, especially in high-level financial crimes involving public funds.
“This could signal to others that if you loot and later refund a portion, you can walk free — a pattern that normalises impunity under the guise of legal settlements,” Azar cautions.
He further probes the consistency of the Attorney-General’s decision. Will similar settlements now be offered to other individuals being prosecuted under the financial sector cleanup efforts? Is there a formal policy guiding such discretionary decisions, and is it publicly accessible?
Another area of concern is whether civil or regulatory sanctions are still being pursued in parallel with the dropped criminal case.
“If criminal responsibility is avoided, what about civil liability? Has the state forfeited its right to pursue unjust enrichment through other legal channels?” Azar asks.
In conclusion, the GOGO statement, endorsed by Azar, calls for a comprehensive review of Section 35 of the Courts Act.
Initially designed to encourage restitution, the law has increasingly been used — or misused — to settle criminal cases involving powerful figures behind closed doors.
“There is growing concern,” Azar writes, “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.”
While acknowledging the constitutional powers of the Attorney-General and the effort made to justify this decision, GOGO insists that public confidence in Ghana’s justice system can only be preserved through judicial oversight, transparency, and consistent policy application.
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