I have just read Oliver Barker-Vormawor’s very educative 41-paragraph piece on the calls for the OSP to simply put former Finance Minister Ken Ofori-Atta on trial in absentia. I have little useful to add to his central argument. But his intervention confirms concerns I have raised about how quickly sections of the media have embraced the refrain, “just try him in absentia,” without sufficient attention to the important nuances of our law. Let me try explaining in the next 24 paragraphs.

Yes, our law recognises trial in absentia. But that is only the beginning of the inquiry. How exactly is such a trial commenced and conducted where the accused was already outside Ghana when proceedings began, has never appeared before the trial court (I do not know of one) and has never personally been arraigned? I am searching for a precedent.

And there is another important question: if such an accused may lawfully be tried in his absence, can he nevertheless appoint counsel to appear and fully defend him while he remains abroad?

Article 19(3) of the Constitution makes presence at a criminal trial the rule. The relevant exception is where the accused, having been duly notified of the trial, refuses to appear.

Oliver’s central concern is therefore fundamental: what amounts to being “duly notified of the trial”? Is service of a summons abroad sufficient? Must actual receipt be proved? Could substituted service suffice? Is knowledge that charges have been filed the same as notification of the trial? And when may a court properly conclude that an accused who has never appeared has actually refused to appear?

Bonsu alias Benjillo v Republic does not completely answer that problem. There, the absentee accused persons knew the charges, had appeared before the court, their trial had commenced in their presence, they obtained bail and thereafter absconded. That is materially different from an accused who was already abroad when proceedings commenced and has never appeared before the trial court.

Then comes Act 30, and its progression is revealing. Section 70 expressly allows personal attendance to be dispensed with in specified cases involving offences other than felonies, including where the accused pleads guilty in writing or appears by counsel. Even then, the court may subsequently require his personal attendance.

Where that dispensation does not apply and the accused fails to appear, ss.72 and 167 point instead to a warrant to apprehend and bring him before the court. Our law ordinarily seeks first to secure the accused’s presence rather than immediately proceed without him.

Section 170 comes later and is significantly headed “Non-Appearance of Parties after Adjournment.” Subject to its terms, and excluding a felony, it permits the court to proceed where an accused fails to appear at the time or place to which the hearing or further hearing has been adjourned.

The apparent statutory progression is therefore broadly: summons → attendance or lawful dispensation from attendance → warrant upon non-appearance → hearing/adjournment → subsequent non-appearance → possible trial in absentia under s.170.

That immediately raises the difficulty: where in that progression does an accused fit who was already abroad when proceedings commenced, has never appeared, has never personally pleaded and has never reached an adjourned hearing? Section 170 does not obviously provide a comprehensive answer.

There is wisdom in our law’s insistence upon personal appearance, particularly for felonies. A criminal trial is not merely an intellectual contest between prosecutors and lawyers. Criminal punishment is ultimately directed at the offender personally.

Imagine the alternative. A person with sufficient means could commit a serious offence, including corruption involving enormous public resources, leave the jurisdiction with the proceeds and thereafter engage lawyers to conduct the entire criminal trial while he remains comfortably abroad. If convicted, he continues beyond the reach of the punishment imposed by the court. What impunity that would permit!

That helps explain why our law repeatedly seeks to secure the accused’s presence and why s.170 expressly excludes felonies from its mechanism for proceeding after non-appearance. The criminal process cannot be reduced to litigation by proxy where the very person liable to punishment deliberately remains beyond the reach of the court.

Act 30 nevertheless provides machinery once a valid trial in absentia is underway. Under s.171, where the court proceeds under s.170, it enters a plea of not guilty for the absent accused. Section 172 then allows prosecution witnesses to be questioned by “the accused or his counsel,” while s.174 provides for the defence where there is a case to answer.

But that produces my additional question: does an accused who has never appeared before the court, but is ordered to be tried in absentia, have the right to remain abroad and nevertheless appoint counsel to conduct his entire defence?

Can counsel cross-examine prosecution witnesses, make a submission of no case, make necessary elections, call defence witnesses and otherwise participate fully while the accused himself refuses to attend? What is the legal basis, extent and limit of counsel’s authority in that peculiar situation?

I do not suggest that the answer must be no. Article 19’s fair-trial guarantees, including the right to defend oneself personally or by a lawyer of one’s choice, are obviously important. My point is that the answer should not simply be assumed. Our law does not appear to provide a complete modern procedural framework for an accused who remains outside the jurisdiction from the commencement of proceedings to their conclusion.

Oliver therefore identifies the first major gap: what constitutes constitutionally sufficient notification under Article 19(3)(a) where the accused was already abroad and has never appeared before the trial court?

I would add the second: once that constitutional threshold is crossed, what rules govern arraignment, plea, representation by counsel, cross-examination, the defence, conviction and sentence where the accused has never personally appeared?

This also explains why extradition cannot simply be dismissed as pointless bureaucracy. Bringing the accused physically before the court resolves many of these questions. He receives the charge, appears before the court, takes his plea and instructs counsel. If he subsequently absconds or refuses to attend after due notification, the constitutional footing for proceeding without him becomes considerably firmer. That is much closer to what occurred in Bonsu.

I therefore agree with Oliver that this case presents an opportunity for authoritative clarification. His proposed question is important: whether the summons ordered to be served outside Ghana constitutes sufficient notification of a criminal trial for purposes of Article 19(3)(a), where the accused was outside Ghana when proceedings commenced and has never personally appeared before the trial court.

I would add: Where such an accused is lawfully ordered to be tried in absentia, what is the legal basis, extent and limit of the right of counsel appointed by him to participate in the proceedings while he remains absent?

The State must urgently provide clear and detailed rules to fill these gaps. And I hope the media is taking notes. I have previously raised concern about the readiness to swallow the “just try him in absentia” proposition, and other claims attributing the absence of a trial to OSP failure, incompetence or conspiracy, without first interrogating the nuances of our law. Trial in absentia exists; “just try him” is not the law.

Oliver needed 41 paragraphs to carefully expose the problem. I have attempted mine in 25. The bottom line is simple: the difficult questions are when such a trial may constitutionally begin, what amounts to sufficient notification, how Act 30 applies to an accused who has never appeared, and what role his lawyers may lawfully play while he remains absent. These are not excuses for delay. They concern the legality and integrity of the trial itself. The worst time to discover that we do not have satisfactory answers is after years have been spent obtaining a conviction that cannot stand.

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