Criminal justice, due process and legal aid: thoughts from Ghana

Abenaa Owusu-Bempah

During a recent trip to Ghana, I visited the Faculty of Law at the Kwame Nkrumah University of Science and Technology (KNUST). I was also able to speak with Eric Delanyo Alifo, a criminal lawyer based in Accra. These conversations were a stark reminder of the struggles faced by those accused of criminal wrongdoing in Ghana, and the struggles faced by those who endeavour to assist them. Mr Delanyo Alifo set up and runs an NGO called HelpLaw Ghana. The purpose of the NGO is to provide free legal assistance to those who cannot afford it. Unfortunately, it has been, and continues to be, an uphill battle, in terms of both the workload and available resources.

Ghana does have a state-run system of legal aid. However, it is largely ineffective and is fraught with difficulties. The nature of these difficulties has been carefully explained in an article by Renee Morhe, a lecturer at KNUST. They include a shortage of experienced lawyers, low levels of remuneration for lawyers, and poor access to legal aid offices. As a result, many of those who are accused of criminal wrongdoing go unrepresented, causing them serious problems at each stage of the criminal process.

For example, once accused persons have been arrested, anecdotal evidence suggests that it is not uncommon for the police to beat ‘the truth’ out of them. This claim is supported by a recent report which found that as many as 40% of pre-trial detainees said they had been tortured by a state official since their arrest. Without the assistance of a lawyer, it is very difficult for accused persons to challenge the validity of confessions obtained in this way. This problem is compounded by the high rates of illiteracy amongst accused persons, making it easy for the suspect to be tricked into signing a false confession, and making it nearly impossible for the accused to adequately prepare for trial or challenge the evidence against him in court.

Ghanaian pre-trial procedure is not subject to the kind of regulation that English procedure is. For example, police interviews are not routinely recorded. Even if the accused is fortunate enough to have a lawyer, the police might prevent the lawyer from being present during interrogations, and the lawyer’s own meetings with the accused might be observed or monitored by the police, depriving them of any confidentiality. These practices are not compatible with Ghanaian law, including Article 19 of the Constitution, which provides, inter alia, that a person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.

Ghana Supreme Court
Ghana Supreme Court

One consequence of the lack of legal representation is that pre-trial detention periods can be incredibly long. This is, in part, due to the fact that the accused is not competent to apply for, or obtain, bail. A recent report on the socioeconomic impact of pre-trial detention in Ghana, published by Open Society Foundations, found an average pre-trial detention period of 14 months, with the longest coming in at 7 years. Many of the detainees were held in relation to non-violent crimes and were unlikely to abscond or pose any risk to society. The same report found that only 27% of detainees had seen a legal representative (none of whom said that the state had paid for the cost of their legal representation). The result is many innocent people wasting significant periods of their lives in prisons which are severely overcrowded and unhygienic (for more information on current prison conditions in Ghana, see this Amnesty International report).

What I have outlined above is just the tip of the iceberg in terms of the unsatisfactory nature of criminal procedure in Ghana, and the lack of respect accorded to fundamental due process rights. More detailed accounts, based on the experiences of Eric Delanyo Alifo, can be found here. I have the utmost respect for Mr Delanyo Alifo and other dedicated lawyers who are making significant personal sacrifices in their efforts to create change. As a country, Ghana has a lot to offer; it is often employed as a shining example of democracy and economic development in Africa. Yet, the approach to criminal procedure and due process has remained largely stagnant.

Thinking closer to home, one becomes aware of just how important it is to resist government plans to cut legal aid fees by up to 30%. Without adequate funding, many lawyers will be forced to abandon the criminal bar; the quality of state-funded legal representation will diminish; the rights of accused persons will be put in jeopardy; and the potential for both wrongful convictions and wrongful acquittals will increase.

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