There is a minor legal mix-up in Sierra Leone that has lasted for decades, and even lawyers fall into it. It sounds like a dry point of law, but it goes to a simple and serious question that touches every citizen: who has the power to stop a criminal case, and where does that power come from?

Two officers sit at the top of our prosecution system. One is the Attorney-General and Minister of Justice. The other is the Director of Public Prosecutions (DPP). Each of them can bring a case to an end before it finishes. That is the first thing to hold on to. The DPP is not powerless to stop a case. He has the power of his own to do so.

The confusion comes in because the two officers stop cases using two different powers that carry two different names and come from two different books of law. Because the result looks the same from the outside, people treat the two powers as the same. In effect, they are very close. In law, they are not identical, and it matters to know why.

The Attorney-General and the nolle prosequi

Start with the older of the two powers. It carries a Latin name, nolle prosequi, which simply means “to be unwilling to pursue.” In plain words, it is the power to say, “The State will not go on with this case.” When it is entered, the case stops.

This power belongs to the Attorney-General. It is written into our Criminal Procedure Act. The Attorney-General can enter it by standing up in court and saying so, or by informing the court in writing. Either way, it is his power. It has one job only, which is to stop a prosecution. It does not do anything else.

Here is the part people forget. This power belongs to the Attorney-General, and to the Attorney-General alone. The DPP does not have a nolle prosequi of its own. We will come back to why that is easily overlooked and why it has been so often abused once we have looked at the DPP’s own powers.

The DPP and the Constitution

Now turn to the second power, which comes from a different book altogether. It is written into the Constitution of 1991, and it belongs to the DPP.

The Constitution gives the DPP a set of tools of its own. He may start a case. He may take over a case that someone else has started and carry it on. And he may discontinue a case, meaning stop it, at any point before judgment. It is that last tool, the power to discontinue, that matters most for our purpose.

The DPP’s power to discontinue is, in essence, the same as a nolle. When he uses it, the case stops, just as it stops when the Attorney-General enters a nolle. So, the DPP is not left standing helpless while only the Attorney-General can end proceedings. The Constitution hands the DPP his own way to bring a case to a close, and in plain effect, it does the very same job.

Why, then, do lawyers insist the two are not the same? Because they come from different places and they are not identical in every respect. The nolle is a single narrow power that only stops a case. The DPP’s constitutional power is broader because it also lets him take a case over and continue it, something the nolle can never do. And the two powers belong to different officers under different laws. The nolle is the Attorney-General’s, granted by statute. The power to discontinue is the DPP’s, granted by the Constitution. Same outcome, different power, different owner.

This is where the real error creeps in. Because the DPP already has his own power to stop a case, he does not need to reach for the Attorney-General’s nolle, and in truth, he has no right to. If a DPP wants a case stopped, the honest route is his own constitutional power to discontinue. The nolle stays with the Attorney-General, and the DPP may enter one only on the Attorney-General’s authority and instructions.

Why it matters

You may ask why any of this should trouble an ordinary reader. The answer is that the power to stop a criminal case is a power to decide who is prosecuted and who walks free. When we are unclear about who holds that power and where it comes from, we are unclear about who is accountable when it is misused. A DPP who enters a nolle on his own, as though it were his to give, is reaching for a power the law never handed him, when he had a proper power of his own to use all along. That is not a small technicality. It is the difference between acting within the law and acting outside it.

There is a further point. When the DPP discontinues a case, does that close the matter for good, or can the State bring it back? The Act says plainly that a nolle does not bar a fresh prosecution on the same facts. The Constitution says nothing on the question of the DPP’s discontinuance. That silence has never been settled by our courts.

A gap left too long

The real failing is not that lawyers get confused. It is that the confusion has never been cleared up at the top. Our Supreme Court has had chances to explain the difference and to correct the practice, and it has not done so. The anomaly has been allowed to run for generations, from one era to the next, so that each new set of lawyers inherits the same muddle.

None of this makes the system collapse. The two powers can live side by side. The Constitution does not give the DPP a nolle, and the law keeps the Attorney-General at the head of the whole field. But a country’s justice system should not rest on a confusion that everyone repeats, and nobody resolves. Sooner or later, a court will have to say clearly what the rest of us have been arguing about for years. The sooner it does, the better.