Hanan arrest: AG’s conduct leaves much to be desired – Mercer

The recent re-arrest of Hanan Abdul-Wahab Aludiba, a former Chief Executive Officer of the National Food Buffer Stock Company (NAFCO), at the Accra International Airport has ignited a significant legal debate in Ghana. Aludiba, who was on trial for alleged financial crimes and had secured a High Court order to travel to the UK, was apprehended for allegedly attempting to access a frozen bank account. This action, publicly announced by the Deputy Attorney General, has drawn sharp criticism from legal professionals, including former MP Andrew Egyapa Mercer, who questioned the Attorney General's conduct. The incident highlights critical issues surrounding prosecutorial discretion, the sanctity of court orders, the right to personal liberty, and the procedural integrity of the criminal justice system in Ghana, prompting a closer examination of the Attorney General's constitutional mandate and its practical application.

The Ghanaian legal landscape is currently grappling with the implications of the re-arrest of Hanan Abdul-Wahab Aludiba, a high-profile individual facing charges of stealing and causing financial loss to the Republic. This development, which saw Mr. Aludiba apprehended at the Accra International Airport despite having obtained a High Court order permitting his travel to the United Kingdom, has sparked widespread discussion and criticism regarding the conduct of the Attorney General's office. Former Sekondi Member of Parliament, Andrew Egyapa Mercer, notably articulated concerns that the Attorney General’s handling of the matter "leaves much to be desired."

At the heart of this controversy lies the delicate balance between the state's power to prosecute and an individual's constitutional rights, particularly the right to liberty and due process. The circumstances surrounding Mr. Aludiba's re-arrest, coupled with the public pronouncements from the Deputy Attorney General, raise fundamental questions about the exercise of prosecutorial discretion, respect for judicial orders, and the overall integrity of the criminal justice system. This article delves into these issues, analyzing the Attorney General's actions against the backdrop of Ghana's constitutional and statutory framework, and exploring the broader implications for legal practice and the rule of law.

The Office of the Attorney General in Ghana holds a unique and powerful position, enshrined in Article 88 of the 1992 Constitution. This Article establishes the Attorney General as a Minister of State, the principal legal adviser to the Government, and, crucially, vests in them the responsibility for the initiation and conduct of all prosecutions of criminal offences. Furthermore, Article 88(4) stipulates that all offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney General or any person authorized by him in accordance with any law. This constitutional mandate grants the Attorney General broad discretion in prosecutorial matters, including the power to discontinue criminal proceedings through a *nolle prosequi*.

However, this extensive power is not unfettered. The exercise of prosecutorial discretion is expected to be judicious, fair, and transparent, upholding the fundamental human rights guaranteed by the Constitution, particularly Article 19, which ensures a fair trial within a reasonable time. Central to these rights is the presumption of innocence and the right to personal liberty, safeguarded by Article 14 of the 1992 Constitution. The Criminal and Other Offences (Procedure) Act, 1960 (Act 30), further elaborates on criminal procedure, including provisions for arrest and bail. Section 96 of Act 30 guides courts in granting bail, emphasizing that bail should not be refused as a form of punishment and outlining factors such as the likelihood of the accused appearing for trial, interfering with investigations or witnesses, or committing further offences. The landmark Supreme Court decision in *Martin Kpebu v Attorney-General (2015-2016)* affirmed that all offences are bailable, reinforcing judicial discretion in bail matters.

The re-arrest of Hanan Abdul-Wahab Aludiba, while he possessed a valid High Court order to travel, raises significant questions about the Attorney General's adherence to due process and respect for judicial authority. The Deputy Attorney General's justification for the re-arrest—that Mr. Aludiba allegedly attempted to access a frozen bank account using "false means"—implies a new alleged offence or a breach of existing bail conditions. However, the appropriate legal recourse for such an alleged breach, particularly when a court order is in place, would typically involve an application to the court for a review of the bail conditions, revocation of the travel permit, or an application for a fresh arrest warrant based on new information, rather than an immediate re-arrest that appears to override a subsisting court order. The Attorney General's subsequent announcement of an intention to seek a review of the travel order further underscores that a judicial process was available and arguably should have been exhausted before the physical re-arrest.

Mr. Aludiba's lawyers have indicated plans to initiate contempt proceedings, asserting that the re-arrest constitutes a deliberate violation of a valid High Court order. This contention is critical, as the rule of law demands that all state actors, including the Attorney General, respect and uphold judicial pronouncements. Any action that appears to circumvent or disregard a court order, even if based on new allegations, risks undermining public confidence in the judiciary and the justice system. The lawyers' argument that earlier freezing orders had lapsed when original charges were withdrawn and were not revived with new charges also introduces a complex legal dimension regarding the validity of the frozen account status at the time of the alleged attempt.

The Attorney General's broad prosecutorial powers under Article 88, while extensive, are not absolute and must be exercised judiciously and in good faith. The principle that bail should not be used as a form of punishment is well-established under Section 96(4) of Act 30 and affirmed by judicial precedent. While the state has a legitimate interest in preventing an accused person from absconding or interfering with evidence, any measures taken to achieve this must be proportionate and legally sound. The public nature of the Deputy Attorney General's announcement of the arrest via social media also warrants scrutiny, as such actions could be perceived as prejudicing the case or exerting undue influence, potentially conflicting with the accused's right to a fair trial under Article 19 of the Constitution.

Comparative legal systems, particularly within the common law tradition, emphasize the importance of prosecutorial independence coupled with accountability. While the Attorney General in Ghana serves as both a political appointee and the chief legal officer, the exercise of prosecutorial functions is expected to be guided by public interest and legal principles, free from arbitrary or politically motivated actions. The ongoing debate regarding the Attorney General's exclusive prosecutorial authority, as highlighted in cases concerning the Office of the Special Prosecutor, further underscores the constitutional sensitivity surrounding the scope and exercise of these powers. The Hanan arrest case thus serves as a potent reminder of the need for clarity, consistency, and strict adherence to established legal procedures, especially when dealing with individuals already under the purview of the courts.

The re-arrest of Hanan Abdul-Wahab Aludiba and the subsequent legal skirmishes underscore the critical importance of maintaining the integrity of the judicial process and ensuring that prosecutorial powers are exercised with utmost circumspection and adherence to the rule of law. For legal practitioners, this case highlights the necessity of vigilance in safeguarding clients' constitutional rights, particularly the right to liberty and due process, against actions that may appear to circumvent established court orders or procedures. It reinforces the imperative to challenge any perceived abuse of power, including through applications for contempt or review of bail conditions, to ensure accountability of state actors.

Moving forward, all stakeholders in Ghana's legal system must reflect on the implications of such incidents. The Attorney General's office, while vested with significant constitutional authority, must ensure that its actions are not only legally justifiable but also procedurally impeccable, fostering public trust rather than eroding it. Practitioners should closely watch the outcome of the proposed contempt proceedings and the Attorney General's application for review, as these will likely provide further judicial guidance on the boundaries of prosecutorial discretion and the sanctity of court orders in Ghana. This case serves as a powerful reminder that the strength of a democratic society is measured by its commitment to upholding the rights of all individuals, even those accused of serious offences, through fair and transparent legal processes.