Ghana

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Introduction

Ghana attained independence from colonial British rule on March 6, 1957. It became a republic on 1 July 1960. Civilian republics have been interspersed with periods of military rule. These have been done four times. On January 7, 1993, the Fourth Republic was inaugurated, complete with a new Constitution.

Geography, religion, languages, culture

Geographically Ghana is situated in the center of the Gulf of Guinea coast, 2,420 km of land borders with three countries: Burkina Faso (602 km) to the north, Ivory Coast (720 km) to the west, and Togo (1,098 km) to the east. To the south are the Gulf of Guinea and the Atlantic Ocean. The country's main religious groups are Christian (71.2%) Muslim (17.6%) and Traditional (5.2%), other 0.8%.

Nine languages have the status of government-sponsored languages: Akan, Dagaare/Wale, Dagbane, Dangme, Ewe, Ga, Gonja, Kasem, Nzema. However, two dialects of Akan, Twi and Fante, although not government-sponsored, are also widely-spoken in Ghana. Hausa is widely used as a lingua franca by Muslims in Ghana.

There are more than 50 identified different ethnic/cultural groups in Ghana with the six larger groups being the Akan (Ashanti and Fanti), the Ewe, the Ga-Adangbe, the Mole-Dagbani, the Guan and the Gruma.


History

The Portuguese built the first permanent trading post, the Elmina Castle, in 1482. The Portuguese lost Elmina to the Dutch in 1642. The Portuguese then left the Gold Coast permanently. Conflict dominated the next 150 years between the Europeans fighting for trade within this area. The Dutch and Britons formed trading companies. Britain dominated the area by 1872. In 1844 The British Governor Hill signed a treaty to protect Fanti chiefs and keep the trade routes open.

This laid the legal foundation for subsequent colonization of the coastal area. This was then formally laid down with the establishment of the Supreme Court in 1853. The British Settlements Act of 1843, empowered the British Crown to “establish such laws, institutions and ordinances, and to constitute such courts and offices as may be necessary for the peace, order and good government” of the territories concerned. (Section 1 of the British Settlements Act, 1843).

In 1876, the Gold Coast Supreme Court Ordinance (No. 4 of 1876), was passed providing for The Common law, the Doctrines of Equity, and the Statutes of General Application which were in force in England at the date when the colony obtained a local legislature to be law. Indirect rule became formalized by Section 19 of this Act that provided for the application of customary law. The legal pluralism that was recognized under the 1876 Supreme Court Ordinance still persists today. It is moderated by elaborate choice of law rules.

Type of Legal System

Ghana is an independent country that has its Legal system based on the Common law. The Country also recognizes customary law as a source of Law. The Country has had three successive constitutions. They are the 1969, 1979 and 1992 constitutions. The 1992 constitution stipulates the sources of Ghanaian law to be the Constitution, Acts of Parliament Delegated Legislation made under the authority conferred by the Constitution, laws both unwritten and written in force before the enactment of the 1992 Constitution, Common law, Doctrines of Equity and Customary law.[1]

The Ghanaian court system is based on civil and criminal divisions. The highest Court is the Supreme Court of Ghana that has the sole mandate over Constitutional interpretation of the law. This mandate is of original jurisdiction over matters relating to the rights under The Constitution. The Court consists of The Chief Justice and four other judges. This Court is also the final Court of Appeal. The Court is not bound to follow decisions of any other Court. The principle of stare decisis works in this Court but they may deviate from their decisions.The Court has supervisory jurisdiction over pending matters in any Court. The Court can also review its decisions.[2]The next Court in the hierarchy is The Court of Appeal of Ghana. This Court has jurisdiction over appeals that emanate from judgments, decrees or High Court justices orders. The Court consists of the Chief Justice and five judges. The Court is the final Court of Appeal in election petitions.[3] The next Court is The High Court that has The Chief Justice in charge and twelve other Judges has jurisdiction in civil and criminal matters except treason. The Court has jurisdiction to hear piracy cases and protect fundamental human rights under the Constitution. The Court has divisions that deal with different matters. This are the Fast Track,Commercial,Land,Human Rights,Labour and Financial Crimes Division.[4].The ten regional courts are next in the hierarchy. They consist of the Chief Justice, Chairman, and members who are not lawyers. They have jurisdiction over criminal matters only. Appeals on criminal matters go straight to the Court of Appeal.


The lower Courts are the next in the hierarchy and consist of the Circuit Court, District Magistrate Court. The Judicial Committee of The National House of Chiefs, The Judicial Committee of the Regional House of Chiefs and the Judicial Committees of the traditional Councils.[5]Circuit courts have both criminal and civil jurisdictions. Criminal cases can all be heard except treason, offences punishable by death or indictment.[6]District Magistrate Courts have jurisdiction in both criminal and civil matters.[7] Ghana runs a Legal Aid Scheme. This falls under the docket of The Ministry of Justice. A twelve member board oversees its work. All the ten regions of Ghana have a Legal Aid office. The scheme is run by Legal Aid officers and lawyers. Legal aid is run pursuant to the Legal Aid scheme Act of 1997.

The Constitution of Ghana under Article 294 also provides for enforcement of constitutional rights that are protected by the Scheme. All crimes that lead to the Death penalty and Juvenile cases get representation. The scheme provides for all other criminal matters to be represented where one cannot afford a lawyer. Civil matters also get representation.

A number of NGO's supplement The Government’s effort to provide Legal aid.[8] Ghana has a population of 6759 lawyers for a population of 24 million.

Sources of Defendants Rights

The defendants’ rights are contained in The Constitution of Ghana and the Criminal Procedure code. Chapter five of The Ghanaian Constitution provides for the fundamental Human rights of People in Ghana.[9]The Ghanaian constitution under Article 12 provides that all government departments should respect and uphold these rights and enforce them.[10]Ghanaian law also provides for international instruments to be applied in Ghana. These are applicable whereby the Government of Ghana has ratified the international agreement though it may not be in The Constitution. The international agreements already recognized include The International rights of the Refugees and Children and The Beijing Rules.

Other international sources of law applicable in Ghana are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), the Convention on Elimination of Discrimination Against Women (CEDAW), the Convention Against Torture (CAT) and the Convention on the Rights of the Child (CRC).i Ghana has signed and ratified all of the above instruments.

These rights are said to start from the time one is a suspect and extend to when on is sent to trial, convicted and sentenced.

Rights of the Accused person

The accused person’s rights are protected under The Constitution. They follow the following principles of Law.

Legality principle

This stipulates that one shall not be charged for an offence that one was not recognized as one at the time of committing the offence. The Ghanaian Constitution is silent on this particular right.

Presumption of innocence

Article 19(2) (c) of the Ghanaian Constitution provides for the presumption of innocence against an accused person: “A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.

Freedom from prolonged pretrial detention

The Ghanaian criminal system protects the accused from unlawful long detention. The law provides one has to be arraigned in Court and granted bail within 48 hours under Article 14 of the Constitution.

Capital punishments

This is provided for under the Criminal code of 1960 and the Constitution. Crimes that are punishable by death include murder, attempted murder and treason.

Rights that lead to a fair trial

Double jeopardy

This is provided for in section 19(7) of the Ghanaian Constitution in that “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for the offence.”

This subsection however operates under a caveat that a Superior Court may order otherwise during the course of either appellate or review proceedings.

Right to a counsel

The Ghanaian Constitution provides under Article 14(2) for the right to legal representation. The Article states as follows: A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.

Right to habeas corpus

The legal principle of habeas corpus is regulated by the habeas corpus Act 244 of 1964 and section determines that “Where an allegation is made by any person that he is being unlawfully detained an application may be made under this section to the High Court or any Judge thereof for an enquiry into the cause of the detention.”

Section 2 of the Act determines that such application may be brought either by the person him/herself alleging that he/she is being detained unlawfully, any person entitled to the custody of the detained person or any other person acting on such detained person's behalf.

Right to notice of charges.

This provided for under Criminal and other offences act and the Constitution Article 14: the accused has to be informed why he has been arrested.

Right to a fair trial

This is provided for under Article 19 of the Constitution. This provides that the accused has to be brought to Court within a reasonable time and accorded fair hearing.

Right againstself-incrimination

The Evidence Act gives protection against self-incrimination to the accused person. Section 97(1) of the Act enshrines a privilege against self-incrimination in that “In any proceedings a person has a privilege to refuse to disclose any matter or to produce any object or writing that will incriminate him.”

Right to a speedy trial

This is provided for under article 143(b). This provides for one to be brought before Court within 48 hours.

Right to a trial by Jury

Article 125(2) provides for the right of trial by Jury. This states that citizens have the right to participate in administration of justice through the jury.

Right to an impartial judge

This is not provided for under The Constitution.

Right to Appeal

This particular right is provided for under article 137(2) of the Constitution which determines that: “Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.”

Rights in prison

Ghana has ratified international instruments on the right soft prisoners; these include The International Convention on Civil and Political Rights (2000) and the Convention against Torture and other Cruel, inhuman or Degrading Treatment or Punishment.

The people of Ghana under Article 15 are to be treated with dignity and it is not to be violated.No person shall whether or not he is arrested, restricted or detained be subjected to torture or other cruel, inhuman or degrading treatment or punishment; any other condition that detracts or is likely to detract from his dignity worth as a human being. A person not convicted of crime should not be treated as a convict and shall be kept separately.

Article 16 provides: no person shall be held in slavery or servitude. The prison decree provides that under Section 2 of the Prisons Decree it is the duty of the Prisons Service to ensure that no person shall be subjected to inhuman or degrading punishment; or any other condition that detracts as a human being.

Section 35(1)of the decree grants the Director of Prison (now, the Director General of Prisons) the duty to ensure that every prisoner is regularly supplied with wholesome and nourishing food in quantities sufficient to maintain him in good health; at all times be supplied with clothing, soap, bedding and other necessities in quantities sufficient to maintain his decency; at all reasonable times permitted access to washing and toilet facilities sufficient to keep him or herself clean and decent in person; permitted to have daily exercise outside his or her cell during the hours of day for not less than one hour a day; promptly supplied with all medicines, drugs, special diets or other things prescribed by a medical officer of health as necessary for the good health of that prisoner.

This section’s importance of the treatment of offenders with decency and their right to health is exemplified by the fact that section 35(3) indicates that no punishment shall be imposed on an offender which has to affect any of section 35(1). Thus, irrespective of the punishment to be meted out on an offender it should not affect any of section 35(1). Article 15(2) of the constitution has been given effect to protect offenders against torture section 43 of the Prison Decree points out that no person other than the Director of Prison or Officer in Charge shall have the power to impose any punishment on a prisoner for an offence against discipline. This section 43(2) mentions that the power shall not be delegated to impose punishment on an offender for an offence against prison discipline.

Sections 44, 45 and 46 of the Decree bar the use of corporal punishment, mechanical restraints and the use of force respectively. A warrant of commitment is the document that gives the prison the authority to hold a prisoner and contains the reason why someone is in prison. The warrant of commitment of remand prisoners contains a time limit which a judge should review every 14 days on whether or not the warrant should be renewed. This often does not happen, due tothe system’s inefficiencies and lack of resources. Ghana’s prisons are overcrowded by 45.50 per cent,[11]

According to the data, Ghana’s prisons currently have a total inmate population of 14,368, when it is only authorized to accommodate a population of 9875. 11,684 of the inmates in the prison are convicted. The prisons have a high rate of deaths from communicable diseases and preventable deaths. There is a high recidivism rate due to lack of resources to properly rehabilitate the criminals. Prisoners are fed poorly while the farm lands lie underutilized due to lack of farming implements. This is as a result of lack of funding. The mental health of inmates is poorly catered for in Ghanaian prisons. Women inmates are prone to sexual violence and the jails are overcrowded. The women are allowed to stay with their children. However these children do not enjoy the same rights as those of children who are not in prison.


Rights at arrest

The accused person is to be informed as to why his been arrested and has to be taken to the police station to do this. This is as set under the Criminal and other offences Act of 1960 and the Constitution under Article 14(2).[12]The person arrested without a warrant has to be brought to court and granted bail to release him within 48 hours. This is as per sec 13 Act 30 and Article 14 of The Constitution.[13]Once a person is arrested they should make a voluntary statement free from torture or any act that would dehumanize him. Failure to do this makes the statement recorded inadmissible as evidence. This as per article 1 and 2 of the Constitution and section 120 of Act 30.[14]The accused has to be arraigned before a Court of competent jurisdiction presided over by a Judge. This is as provided under Article 19(2) and Section 2 of Act 30.

The charge sheet under the law has to contain particulars of the offence as well as the offence committed. This is provided for under Article 19(c) and the case of Dadzie v C. O. P. [1963] 1 GLR 244 Act 263.[15]

Plea Taking

All persons are presumed innocent until proved guilty. Accused persons have the option of pleading not guilty or guilty with an explanation. The court where one pleads guilty will sentence. Where one pleads guilty with an explanation the Court will consider whether the explanation amounts to a defence. Where it does amount to one is classified as not guilty. Where it leads to an admission of a lesser offence then one is charged with the lesser offence or enters a not guilty verdict.Kofi Aseidu vs. The Republic (Civil motion No. H2/16/2010.)Unreported set the precedent in this case.[16] Bail can be granted for non bailable offences by the high courts as under Article 33(3) of The Constitution.[17]

The Trial

The trial Court has to give the accused fair trial within a reasonable time. The rules of natural justice have to observed under Article19 (1).[18]A mini trial is provided for where the accused person statement was taken contrary to Article 15(1).[19]Accused persons not granted bail should be kept as remand prisoners and not convicted prisoners. Juvenile offenders are kept separate from adult offenders under Article 15(4) of The Constitution. Juveniles also have to be tried within 6 months or they be discharged under the International Rights of the Child and Section 33 of The Juvenile Justice Act.[20]

The Court has to establish a prima facie case. This is based on two grounds (1) that the ingredients of the offence have been proved under the law. (2)The prosecution witness’s evidence is not credible enough to convict.Moshie v The Republic [1977] 1 GLR 287 sets the law in these criminal cases.[21]Under the constitution Article19 (10) gives the right to remain silent, if the accused person feel like. The accused may rely on his statement to the police or give evidence. Article 19(e) and (f) protect the accused right to prepare his defence. This is for both summary and trial on indictment.[22]

The accused person under 273(30) of Act 30 address the Court.[23]The accused sums up his case to the Jury. The court then sums up the case to the jury. This has to be done well to propagate a fair trial. Failure to do this leads to non-direction and misdirection that are grounds of appeal. Judgement is given based on either an acquittal or conviction. Where the charge is deemed frivolous or vexatious then the Court can award compensation to the accused person. This is under Article 14 of The Constitution.The Court should not discriminate against any accused under the prevention of discrimination and equality right under Article 14.[24] The sentence given must be according to the law. This is as stipulated under Article 19 (6) of The Constitution. The sentences given are death, detention, imprisonment, fines, compensation and police supervision.


Appeals

The right to appeal is provided under the law. The grounds of appeal can be

1. The conviction or acquittal was unreasonable

2. The decision was made in ignorance of the law.

3. The evidence does not support the sentence

4. Miscarriage of justice has taken place.

The above lead to unfair trial hence the appeal will succeed. Where one co-accused appeals and succeeds the Court will do the same for the rest without joining them. The accused person who appeal a sentence and the court finds the sentence was wrong and imposes the correct one will enjoin the rest of the accused persons. Article 14(6) provides that the Court has to take into consideration time spent in custody when sentencing the accused. Sentencing begins on day of conviction and is not retroactive. The Court has to hear from the accused before enhancing a sentence. The accused has a right for the trial Court to suspend trial until the Court of appeal listens to Stay of Execution proceedings.Court of Appeal case of Michael Essien vs. VeralightDelademAckumey (Civil Appeal No H1/261/2010) set this precedent.

References

  1. 2. ARTICLE137 OF THE GANIAN CONSTITUTION
  2. Articles 125 – 133 of the 1992 Constitution and the Courts Act, Act 459
  3. Articles 125 – 133 of the 1992 Constitution and the Courts Act, Act 459
  4. 5. Section 29 of Act 459
  5. 6. Section 42 of Act 459
  6. 7. Section 47 of Act 459
  7. 8. Legal Aid scheme Act of 1997.
  8. Office of Legal Aid in Ghana
  9. 11. Chapter five of The Ghanaian Constitution
  10. 12. Article 12 Ghanaian constitution
  11. 12. Article 12 Ghanaian constitution
  12. 13. Article14(2) the Constitution
  13. 14. Article 14 of The Constitution.
  14. 15. Article 1 and 2 of the Constitution and Section 120 of Act 30
  15. 16. Article 19(c) and the case of Dadzie v C. O. P. [1963] 1 GLR 244 Act 263
  16. 17. Kofi Aseidu vs. The Republic (Civil motion No. H2/16/2010.)Unreported
  17. 18. Article 33(3) of The Constitution
  18. 19. Article19 of The Constitution
  19. 20. Article 15(4) of The Constitution.
  20. 21. Section 33 of The Juvenile Justice Act.
  21. 22. Moshie v The Republic [1977] 1 GLR 287
  22. 23. Article 19(e) and (f) of The Constitution.
  23. 24. 273(30) of Act 30
  24. 26. Article 14 of The Constitution