By Saidu Koroma, Esq.

The Attorney-General and Minister of Justice occupy a unique constitutional position within Sierra Leone’s criminal justice system. As the principal legal adviser to the Government and the chief public prosecutor, the Attorney-General is entrusted with significant prosecutorial discretion, including the power to discontinue criminal proceedings through the entry of a nolle prosequi. The recent decision to discontinue the criminal proceedings against former President Dr. Ernest Bai Koroma has generated widespread legal, political and public debate. While opinions remain sharply divided, many legal commentators maintain that the discussion should be guided by legal principles rather than political sentiment.” This article examines the legal nature of nolle prosequi under section 45 of the Criminal Procedure Act, 2024, the scope of the Attorney-General’s discretion, and the implications of that power for the rule of law, judicial independence and constitutional governance in Sierra Leone.

The Legal Meaning of Nolle Prosequi

The expression nolle prosequi is derived from Latin and literally means “to be unwilling to prosecute.” It is a common law doctrine that permits the prosecution to discontinue criminal proceedings before a final judgment is delivered. Section 45(1) of the Criminal Procedure Act, 2024 provides that the Attorney-General may, at any stage before judgment, enter a nolle prosequi, thereby bringing the pending criminal proceedings to an end. However, Parliament deliberately qualified this power by providing that:

“…such discharge of the defendant shall not operate as a bar to any subsequent proceedings against him on account of the same facts.”¹

This single provision distinguishes a nolle prosequi from an acquittal and remains one of the most important procedural safeguards within Sierra Leone’s criminal justice framework.

A Nolle Prosequi Does Not Amount to an Acquittal

One of the most common misconceptions surrounding section 45 is the belief that once the Attorney-General discontinues proceedings, the accused has been legally exonerated. This is incorrect.

A nolle prosequi neither convicts nor acquits the accused. Rather, it merely terminates the pending proceedings. The constitutional authority to determine guilt or innocence remains vested exclusively in the judiciary. Consequently, only a court of competent jurisdiction may pronounce an accused person guilty or not guilty after evaluating the evidence presented before it.

The Attorney-General’s statutory authority therefore complements—but does not replace—the judicial function. The distinction between discontinuance and acquittal also explains why the Attorney-General retains the power to revive proceedings under appropriate circumstances.

The Power to Recommence Proceedings

Perhaps the most distinctive feature of section 45 is Parliament’s express preservation of the Attorney-General’s power to recommence criminal proceedings on the same facts.

Unlike the doctrine of autrefois acquit or the constitutional protection against double jeopardy, which applies only after a lawful acquittal or conviction, a nolle prosequi leaves the substantive issues unresolved.

Accordingly, should fresh evidence emerge or circumstances change, the Attorney-General retains the legal authority to institute new proceedings arising from the same alleged conduct.

This statutory safeguard reflects the principle that prosecutorial discontinuance should not permanently extinguish criminal liability where justice may subsequently require prosecution.

Is the Power Unlimited?

Although section 45 confers broad discretion upon the Attorney-General, the exercise of that discretion is not entirely beyond legal scrutiny.

Every exercise of public power must be consistent with constitutional principles, including legality, rationality, fairness and the rule of law. The Attorney-General is therefore expected to act independently, impartially and in the public interest.

Furthermore, prosecutorial discretion must never be exercised arbitrarily, for improper purposes or in a manner inconsistent with constitutional values.

Courts in many Commonwealth jurisdictions have recognised that while prosecutorial discretion is extensive, it remains subject to judicial review in exceptional circumstances where abuse of process or unconstitutional conduct is alleged.

Does Section 45 Create Legal Uncertainty?

An important feature of section 45 is that it does not prescribe a limitation period within which discontinued proceedings must be recommenced.

The absence of a statutory time limit raises legitimate legal questions. Does the indefinite possibility of renewed prosecution create uncertainty for an accused person? Could an excessive delay amount to an abuse of process? How should courts balance prosecutorial discretion against an accused person’s constitutional right to a fair hearing within a reasonable time? “These concerns are not merely theoretical; they touch directly on constitutional protections afforded to every accused person.

Although the Criminal Procedure Act does not expressly answer these questions, they remain important issues for future judicial interpretation.

Ultimately, the courts may be required to determine whether prolonged delay in reviving discontinued proceedings infringes constitutional guarantees of fair trial and due process.

The Ernest Bai Koroma Proceedings

The criminal proceedings involving former President Dr. Ernest Bai Koroma have become the most prominent modern example of the Attorney-General’s exercise of section 45. Regardless of political affiliation, the legal consequences remain the same.

The entry of a nolle prosequi did not amount to a judicial declaration of innocence. Equally, it did not constitute a conviction. Rather, the proceedings were discontinued while preserving the Attorney-General’s statutory authority to recommence prosecution should the legal requirements for doing so arise.

This distinction is essential for maintaining public understanding of criminal procedure and preventing misconceptions regarding the legal status of discontinued proceedings.

Prosecutorial Discretion and the Rule of Law

The Attorney-General’s power to discontinue criminal proceedings exists to serve the public interest. Circumstances may arise where continuing a prosecution is no longer appropriate because of insufficient evidence, diplomatic considerations, humanitarian concerns, witness availability or broader interests of justice, etc.

However, because this discretion is exceptionally broad, transparency and accountability remain indispensable. Public confidence in the criminal justice system depends not only upon prosecutorial independence but also upon the perception that prosecutorial decisions taken fairly, objectively and without political influence.

The rule of law demands those legal principles—not personalities—guide prosecutorial decisions.

Conclusion

Section 45 of the Criminal Procedure Act, 2024 represents one of the most significant prosecutorial powers within Sierra Leone’s criminal justice system. Properly understood, a nolle prosequi does not determine criminal liability; it merely discontinues existing proceedings while preserving the Attorney-General’s authority to institute fresh proceedings on the same facts.

These principles are not merely theoretical; they have practical significance in contemporary Sierra Leone.

The recent proceedings involving former President Dr. Ernest Bai Koroma have highlighted the importance of understanding the constitutional distinction between prosecutorial discretion and judicial authority. Ultimately, it is not the Attorney-General who determines guilt or innocence, but the courts.

As Sierra Leone continues to strengthen its democratic institutions and commitment to constitutionalism, prosecutorial powers must continue to be exercised with transparency, fairness and fidelity to the rule of law. Equally, public discourse surrounding such powers should remain anchored in legal analysis rather than political rhetoric. A mature constitutional democracy depends upon an informed citizenry that understands both the reach and the limits of prosecutorial discretion.

About the Author: Saidu Koroma, Esq., is a Barrister and Solicitor of the High Court of Sierra Leone practicing with Tejan-Sie & Tejan-Sie Law Firm. He is the recipient of the Hon. Justice N. C. Browne-Marke Memorial Prize for Best Performance in Criminal Law (Opinion Writing) and Criminal Procedure in the Sierra Leone Law School Bar Final Examination, 2025.

Copyright –Published in Expo Times News on Monday, 27th July 2026 (ExpoTimes News – Expo Media Group (expomediasl.com)