Right to Fair Trial in Ghana Criminal Proceedings Eric Appiah Yeboah TESI DOCTORAL UPF/2016 DIRECTOR DE LA TESI Professor Roberto Toniatti Professor González Pascual, María Isabel DEPARTMENT DE DRET Dedication To my wife Margaret and three daughters Stephanie, Esperanza, and Britney. ii | P a g e Acknowledgement This dissertation has certainly come into reality after a long walk and journey to discover the extent at which the right to fair trial in Ghana is compromised and constrained to the detriment of the accused within the criminal justice system. Honestly, I could not have possibly completed this dissertation without the rich support and help of numerous academics, professionals, friends, colleagues, and family whom I would be very ungrateful if I fail to thank and acknowledge. I am grateful and wish to express my utmost gratitude to my two directors and supervisors Professor Dr. Roberto Toniatti and Professor Dr. Gonzalez Pascual, Maria Isabel for their endless discussions, the numerous critiques, great sugges- tions, comments and recommendations, and for pushing me to restructure my thinking to reconsider several arguments along these years. Their supervision during the research and the great benefits derived from them has made the writ- ing of this dissertation a reality. My sincerest thanks go to the academics and colleagues from the Department of Law at the University Pompeu Fabra, for their crucial support. Many thanks to Professor Victor Ferreres Comella, Professor Josep Ibañez Muñoz and Profes- sor Anna Ginès I Fabrellas University Pompeu Fabra, for their suggestions, comments, and criticisms during the defence of the thesis proposal project, I am grateful to Professor Aida Torres (Coordinator of the PhD in Law Programme) University Pompeu Fabra, and Mrs. Luìsa Garcia (Secretary of the PhD in Law Programme) for their administrative support during the research. I am indebted to Mr. Evans Anokye-Nyamekye (Solicitor-Advocate) and all Birds Solicitors Lawyers –London, for their support during my research stay with them in London; many thanks to the staff of the Reference Library and Law Faculty of London South Bank University. iii | P a g e I am thankful to the Honourable Lady Chief Justice Georgina Theodora Wood, and Lord Justice J.B. Akamba (Supreme Court Judge, Ghana) who was ap- pointed by the Honourable Lady Chief Justice to assist me during my research in Ghana for enriching my understanding; Special thanks to the Judicial Secre- tary Justice Alex B. Poku-Acheampong- Accra, the Registrar and Library Staff (Ghana School of Law); Judges at the Accra Criminal and Specialised Fast Track Courts and Registrar; Mr. Eric Boamah (BA, LLB, BL), Mr. Tuah- Yeboah (LLB, BL) all of Asempa Chambers- Sunyani, and DSP Charles Ameyaw (Ghana Prisons Headquarters- Accra). I thank Nana Kwabena Korang VI -Paramount Chief and President of Odumase Traditional Council-Sunyani, Sub-Chiefs, and the Brong Ahafo Regional House of Chiefs for enlightening my understanding into customary law and adjudication proceedings in Ghana. Finally, I would like to acknowledge friends and family who supported me throughout this journey. I thank my dear wife Margaret Appiah for her encour- agement and support, my three daughters Stephanie, Esperanza, and Britney; Mr. Robert C. Diawuo (Father) and Ms. Gladys Agyeiwaa (Mum), and siblings for their love and understanding of my lengthy disappearance from home, and having to share me with books. My profound gratitude to my uncles Mr. Nicho- las Dartey & Wife -Mrs. Rosemary (Geneva), Mr. Kwabena Badu-Yeboah (Bsc. M.Ph. Biology) EPA -Accra & wife Mrs. Gloria Donkor for their support. I wish to thank my cousins Mr. Paul Kwasi Dartey (Barcelona), Mr. Augustine Tawiah Kyeremeh (MBA) & wife Ms. Janet Effah (London) for their support. I am thankful to Rev. Isaac Abankwah Lartey (Church of Pentecost- Barcelona), Elder Eric Yaw Adinkrah, and all friends for their moral and prayer support. It would have been impossible without all of you. iv | P a g e Abstract Fair trial in the criminal process of Ghana has been violated, constrained and compromised because procedural rights of the accused remain unenforceable. The current legal instruments within the liberal framework for protection are misguided, and the existing instruments do not guarantee the right here in ques- tion. The dissertation discusses procedural rights that interrelate with the prin- ciple of equality of arms. I advocate that the system fails to put the criminally accused on equal balance and relative equality with the state prosecution. For interest of justice, I suggest that legal aid lawyers should be assigned to repre- sent the unrepresented accused at the state expense where the accused has no means to pay. This remains dormant, basic and in superficial application in Ghana. How imperative customary law proceedings as a complement to the English system has been unfolded; and the distinguishing features between Ghana and England/Wales criminal law procedure; impact of the African Char- ter and European Convention over the domestic criminal proceedings of Ghana and England/Wales has been analysed. v | P a g e Resumen Juicio justo en el proceso penal de Ghana ha sido violada, constreñido y com- prometida debido a los derechos procesales o de procedimiento de los acusados sigue siendo inaplicable. Los instrumentos legales actuales dentro del marco li- beral para la protección son equivocados, y los instrumentos existentes no ga- rantizan la cuestión en el presente documento derecha. Se analizan los derechos de procedimiento que se interrelacionan con el principio de igualdad de armas. Abogo por que el sistema no puede poner el acusado penalmente en igualdad de equilibrio y la igualdad en relación con la fiscalía estatal. Por el interés de la justicia, sugiero que abogados de oficio deben ser asignados para representar al acusado sin representación a expensas del estado en el que el imputado no tiene que pagar. Este permanece latente, básico y en aplicación superficial en Ghana. La necesidad imperiosa de un procedimiento de derecho consuetudinario como complemento al sistema de Inglés ha sido desplegada; y las características dis- tintivas entre Ghana e Inglaterra / Gales del procedimiento penal; impacto de la Carta Africana y el Convenio Europeo sobre el proceso penal interno de Ghana e Inglaterra / Gales ha sido analizado. vi | P a g e Prologue The dissertation precisely is centered on the right to fair trial in Ghana with re- spect to procedural rights in the criminal trial proceedings from the pre to the post-trial stages. The research argues that the right in question is compromised and constrained in Ghana, and judicial interpretation and support for guarantee- ing fair trial rights has been very weak to the detriment of the accused person in Ghana. This often results into unfair conviction and longer detention under re- mand custody without due process of the law. The presumption that the purpose of the criminal justice system is to punish the offender for their guilt and set the innocent free is legally arguable even if the sentence is proportional to the crime committed. Notwithstanding, justice would never be served without procedural justice and fairness for the interest of justice. It has been argued that a breach of the one of the three stages of the trial affects the entire proceedings resulting to miscarriage of justice. The dissertation compares the Ghana and England (UK) criminal procedure thereby observing and illustrating the distinguish features between the two sys- tems and the extent of the impacts of the African Charter over Ghana criminal procedural rights; and the European Convention on Human Rights over Eng- land and Wales criminal law and procedural rights. It considers how the cus- tomary law adjudication of criminal/civil cases functions alongside the state court system in Ghana. The conclusion affirms that the current legal institutions and instruments are weak and inadequate to guarantee the right to fair trial in Ghana as compared to the UK and therefore recommends the need for re-enactment of legal mecha- nisms to replace the inefficient and unenforced system in order to improve ac- cess to justice and fairness. vii | P a g e Table of Contents Dedication ii Acknowledgement iii Abstract v Resumen vi Prologue vii Chapter 1 1 GENERAL INTRODUCTION AND THE CENTRAL THEME OF THE DISSERTATION 1 1.0. Introduction 1 1.0.1 Methodology of the Research Survey 10 a. Interviews 11 b. Observations 12 c. Questionnaires 13 d. Documentary Analysis 14 1.0.2 Weaknesses and Strengths of the Research Approach 14 1.1.0 Constitutional Development and Legal System in Ghana 15 1.1.1. Constitutional Development of Ghana 16 1.1.2 Ghana Legal System 21 1.1.3 Sources of Laws in Ghana 23 1.1.4 The Judicial System in Ghana 26 1.1.5 Independence of the Judiciary in Ghana 32 1.2. Human Right Laws in Criminal Proceedings 36 1.3. Regional and International Human Right Systems 46 1.3.1. The African Charter 46 1.3.2. The ECOWAS Court of Justice 56 1.3.3 Impact of African Charter /ECOWAS Court on the Ghana Criminal Law and Procedure 62 viii | P a g e 1.3.4 Impact of the European Convention on Human Rights over UK Criminal law and Procedure 72 1.4. Conclusion 85 Chapter 2 88 ANALYSIS OF FAIR TRIAL IN THE CRIMINAL PROCEDURE OF GHANA 88 2.0. Introduction 88 2.1.0 Pre- Trial 94 2.1.1 The Power to Prosecute in Ghana 99 2.1.2 Trial of Juveniles in Ghana 105 2.2 Bails and Remand in Ghana 108 2.2.1 Legal Aid in Ghana 116 2.3.0. The Specific Rights of the Defence 127 2.3.1 Right to Disclosure of Documents to the Defence 127 2.3.2 Right to Legal Representation and Defence 135 2.3.3 Right of privilege against self-incrimination 139 2.3.4 Right to Presumption of Innocence 145 2.3.5 Right to Remain Silent 150 2.3.6 Right to be tried without delay 152 2.3.7 Right to be tried in one‘s Presence 153 2.3.8 Right to call Witnesses for Examination 155 2.3.9 Post-Trial Rights 157 2.3.10 Right to Appeal 158 2.3.11 Double Jeopardy (NE BIS IN IDEM) 165 2.4 Measures of Coercion 172 2.5 What Time Frame Constitute Fair Trial in Reasonable Time? 178 2.6.