Kidnapping in Ghana and the law
October 24th, 2019
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November 7th, 2019

Acquitting the guilty and convicting the innocent; the lord detests them both

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Miscarriage of Justice ensues where a person is convicted wrongfully, i.e. for an offence the person didn’t commit. It also occurs when a person who commits an offence is made to go free with no form of reprimand. Its implications are dire. Nonetheless, it happens more frequently than can be imagined across the world. In the United States, for instance, statistics indicate that between 2.3 and 5% of all prisoners are innocent. [1]Further statistics show that about 10,000 persons are convicted wrongly each year. [2]Also, 4.1% of convicts on death row awaiting their execution are innocent of the crimes they have been sentenced to die on.

Reported cases of persons being wrongfully convicted are in abundance. In 1959, a 14-year old by name Steven Truscott was charged with the offence of rape and murder of his friend Lynne Harper. He was subsequently sentenced to die. He was however later taken off the death row and was given life imprisonment. Truscott was only able to turn his conviction in 2007, almost 50 years after conviction. The overturn of the conviction was based on a re-examination of forensic evidence where it became apparent the prosecution had suppressed some vital evidence at the time of the trial and where there was also limited scientific knowledge at that time to assess the evidence.[3]

Read: The law on sexual harassment in Ghana

In a South African instance, a carpenter who is a breadwinner for his family of four was convicted of murder. He was arrested by policemen at his shop in 2006 and without saying much, he was sent to the police station where the policemen strongly warned him not to say a word. After a brief trial with close to no evidence adduced by the prosecution to support the charge, he was convicted of murder. Something he had no idea of. It took twelve years for his appeal to the Supreme Court to be successful and to be acquitted of the crime.[4] The Supreme Court found that he had been convicted with little or no evidence at the trial court.

The situation isn’t any different in Ghana. A teacher in Tamale was convicted in September 2005 for defiling a 14-year old girl who was his student.  He was imprisoned for 13 years until the Supreme Court was able to quash the conviction and acquit him. The Supreme Court found as a fact that the alleged victim had concocted the story of defilement. It was further found through a DNA test that the alleged baby that came out of the “defilement” was not that of the accused. In fact, during the trial, the prosecution led no evidence that the accused had defiled the girl, yet the accused was convicted of defilement.

These are only a few of the stories reported where the victims subsequently got justice. There are many still in prison suffering for what they never did. There are many whose plight has never been brought to the light and have suffered grave injustice. Meanwhile, on the other hand, there have been many who have committed several heinous crimes who are on the loose with no reprimand.

The constitution of Ghana, 1992 provides for fundamental rules governing the trial of accused persons. If these fundamental rules could be adhered to religiously, many of these wrongful convictions may be prevented. The first fundamental rule is the presumption of innocence of the accused person. Article 19 of the constitution provides that any person charged with any offence shall be presumed to be innocent until proven guilty. Under this presumption, the burden of proof is shifted on the prosecution to prove beyond a reasonable doubt that the accused person committed that offence. This means that the prosecution must lead sufficient evidence to show that the accused person, (and no one else but the accused person) committed the offence. The standard of proving that the accused person committed the offence a beyond reasonable doubt is a high one. The accused person need not prove anything. Where the prosecution is unable to prove such a standard, or where there is still some doubt that the accused person committed the offence, that doubt must weigh in favour of the accused person and be acquitted. Sadly, this is not the case. The moment a person is arrested for an offence, the fundamental rule is reversed. It becomes “guilty, until proven innocent”. The burden rather seems to have been shifted on the accused person to prove his/her innocence.

Another fundamental rule under article 19 is that the accused person must always be given a fair trial within a reasonable time. The implication of a fair trial is that the accused person must be given all the facilities necessary to prepare his/her defence, be given an opportunity to be represented by a lawyer,  and be informed in a language the accused person understands of the charge levelled against the person. In many of the interviews conducted by Ibrahim Kwarteng (a journalist with particular interest with inmates) many of convicted persons complained they had no idea of the charge against them or never had a chance to contact a lawyer throughout the trial. They did not understand the whole trial process and all they knew was, they had been pronounced guilty of the offence and are currently serving sentences. All these are an affront to the constitution and an affront to the criminal justice system.

Read: Killing and murder in Ghana

The constitution of Ghana 1992, grants every citizen the right to legal aid under article 294. However, and as was noted by one of the prominent lawyers at the legal aid, Jeffrey Osei-Mensah Esq in an interview to JoyNews, the legal aid department is currently understaffed and that affects the quality of representations the clients get in court. The lawyers there aren’t enough to handle the myriad of cases that flood the department each day. The government, however, seems to be doing close to nothing to attract more lawyers there to help in representing persons who cannot afford the services of private practitioners. This leaves several accused persons to face their fate and a wrongful conviction becomes the inevitable result.

The entire criminal justice system needs an overhaul. There is a need for policymakers and law enforcers to take a second look at how criminal cases are handled especially in Ghana. The marginalized who get charged with an offence are almost always likely to end up in prison whether they committed the offence or not. The well-to-do are most likely to triumph the criminal system. This shouldn’t be so.

When the legal machinery acquits the guilty and convicts the innocent, the Lord detests them both.

 

[1]https://web.archive.org/web/20141110182624/http://www.innocenceproject.org/Content/How_many_innocent_people_are_there_in_prison.php (accessed on 25th October, 2019)

[2] Marvin Zalman, Qualitatively Estimating the Incidence of Wrongful Convictions, 48 Criminal Law Bulletin.

[3] https://www.innocencecanada.com/exonerations/steven-truscott/ (accessed on 25th October, 2019)

[4] https://www.timeslive.co.za/news/south-africa/2018-10-03-i-can-never-forgive-the-state-man-released-after-12-years-in-jail/ (accessed on 25th October, 2019)

 

Source: Kweku Attakora Dwomoh | attakoradwomo26@gmail.com