Plea bargaining in Ghana: The Inception of Act 1079

Source: Nana Ama Dankwaa Kessey Adinkrah

Introduction

Various aspects of criminal legislation in Ghana have seen major changes in the last decade. Notice can be taken of the introduction of disclosure of documents or evidence prior to and during trials[1] as well as the declaration of section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as unconstitutional[2]. Prominent among these recent changes is the passage of the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) which introduced a structured regime for plea bargaining in Ghana. This amendment was passed into law by Parliament in July 2022 and assented to in the same month by the President of the Republic His Excellency Nana Addo Dankwa Akuffo-Addo. This article focuses on what plea bargaining is, the position of the Ghanaian criminal law on plea bargaining prior to Act 1079, the enactment of Act 1079, the benefits of plea bargaining, proposed implementation for plea bargaining as well as potential challenges its implementation may have.

Definition of Plea Bargaining

The Black’s Law Dictionary[3] defines Plea Bargaining, also referred to as a plea agreement, negotiated plea or sentence bargain, as a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges.

Plea bargaining also is a process in the criminal justice system where an accused person relinquishes his or her right to go to full trial in exchange of some other benefits.[4]

Existence of Plea Bargaining prior to Act 1079

Plea Bargaining is not entirely alien to our criminal jurisprudence. There are legislations which, to some limited extent, allow for plea bargaining, be it implied or express. These legislations include the Courts Act, Narcotics Commission Act, Special Prosecutors Act and Act 30. The following are sections of the various legislations which allow for plea bargaining:

Sections 54 of the Criminal and other offences (Procedure) Act, 1960 (Act 30)

“In any criminal case, and at any stage thereof before verdict or judgment, and in the case of preliminary proceedings before the District Court, whether the accused has or not been committed for trial, the Attorney-General may enter a nolle prosequi, either by stating in court or by informing the Court in writing that the state intends that the proceedings should not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but the discharge of the accused shall not operate as a bar to any subsequent proceedings against him on account of the same facts”

This section refers to the power of the Attorney-General to enter a nolle prosequi and bring to an end a criminal trial at any stage before judgement. It has been argued that this power in a sense can be a tool for plea bargain because the Attorney-General upon entering a nolle prosequi may prefer other charges or drop the charges all together against the accused person. Thus, nolle prosequi could arguably be stated as being a tool for plea bargaining. The issues arising out of this is that the plea bargaining power is limited to the prosecutor. There is no mention of the role of the accused person nor the court in an instance where the prosecution decides to discontinue a case under section 54(Supra).

Section 239 of Criminal and other Offences (Procedure) Act, 1960 (Act 30)

(1) A plea of guilty, when recorded, shall constitute a conviction.

(2) Where an accused is arraigned on an indictment for any offence and can lawfully be convicted on the indictment of some other offence not charged in the indictment, he may plead “not guilty” of the offence charged in the indictment but “guilty” of the other offence, and upon the plea of guilty, the Court may, with the consent of prosecution, acquit the accused of the offence with which he was charged and record the plea of guilty to the other offence

Section 239 offers the accused person an opportunity to plead guilty to a lesser offence in order to face a comparatively lesser sentence. The following case laws touch on section 239 and how it has been viewed by various stake holders as a tool for plea bargaining:

The Republic vrs Ohene-Djan and Another, 7 Review of Ghana Law 183 (1975)

The accused persons changed their plea of not guilty of murder to guilty for manslaughter. The trial judge allowed for same after the DPP had consulted the Attorney-General of the change in plea. They were convicted of manslaughter and sentenced to fifteen and ten years with hard labour respectively.

Though section 239 clearly allows for an accused person to plead guilty to a lesser offence, there was public outcry that the accused persons (one being a lawyer) was being given preferential treatment.

Again, in the case of Pobee alias Arko vrs The Republic [1981] GLR @ 743, the accused person was charged with attempted murder and he sought to come under section 239 and plead guilty to causing harm. The trial judge refused to allow him to do same explaining that section 239 in his opinion was a loophole in Act 30 which was being exploited by accused persons to avoid facing the full punishment of the offence they had been charged with.

Other cases such as Alhaji Yussif Alhassan @ Obolo vrs The Republic, Criminal Appeal No. H2/1/2014, judgment dated 29th February 2016. Vincent Kwashivi & 1 Other vrs the Republic, Criminal Case No. JFAP 34/2015, dated 22 May 2015 bring up varied issues with the use of section 239 as a tool for plea bargaining. From the above, it is evident that section 239 is lacking in detail as to the mode of its application as well as the role and rights of the parties involved.

Section 47 of Narcotics Control Commission Act, 2021 (Act 1019)

Special plea bargain - A person arrested and charged with the offence of possession of a narcotic drug or plant for trafficking who is only a courier for a principal may plead guilty to the offence during the trial proceedings and have the sentence reduced by at least half of the sentence if that person cooperates fully with officers of the Commission and the principal is arrested and charged after investigations.

This section provides that the accused (a currier) would have to plead guilty to the offence of possession of narcotic substances. Afterwards he is offered a reduced sentence if he cooperates fully with officers of the Commission and the principal is arrested and charged after investigations.

Section 35 of the Courts Act, 1993 (Act 459)

(1) Where a person is charged with an offence before the High Court or Regional Tribunal the commission of which has caused economic loss, harm or damage to the State or any State agency, the accused may inform the prosecutor whether he admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.

This section for a long time has been one of the closest legislations we have to plea bargaining prior to the enactment of Act 1079. It clearly states what an accused persons may do by way of plea bargaining. The accused person must have first been charged with an offence of having caused financial loss to the state or a State Agency, the accused subsequently may inform the prosecutor as to whether he admits the offence he has been charged with and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused. Though the scope is limited in nature, it allows for potential accused persons to explore the avenue of pleading guilty and making restitution as against going to prison.

Section 71 of the Office of the Special Prosecutor Act, 2017 (Act 959)

(1) A person under investigation or charged with corruption or a corruption-related offence may voluntarily

(a) admit the offence and make an offer of restitution; or

(b) admit the offence and offer to provide information that will aid in the arrest and prosecution of other persons whom that person knows have committed or are about to commit corruption or a corruption-related offence

Section 71 (supra) though limited to the operations of the Office of the Special Prosecutor, was one of the most detailed laws we had on plea bargaining prior to the passing of Act 1079. The power to enter plea bargaining lies with both the Prosecutor and the Court. Act 959 also considers the interest of members of the public when entering into a plea agreement and it limits same to custodial sentences.

The enactment of Act 1079

The work on the plea bargaining legislation began in 2019 with a nationwide discussion where relevant stakeholders were engaged at series of workshops and their views sampled. This occurred in seven regions across the country. The feedback was overwhelmingly positive for the introduction of a definitive plea bargaining law in Ghana. When posed with the question “Should legislation be made for plea agreement to be expanded to cover other crimes not yet covered by existing legal and regulatory instruments?”, 99.8% of the 250 participants who took the post-workshop survey affirmed that plea agreements are good for Ghana hence the ball was set rolling for its drafting and passing into law.

Accordingly, the drafting of Act 1079 commenced with same being modeled after the Kenyan and the United States plea agreement laws while at the same time tailoring it to meet Ghana’s specific needs. These two countries were chosen because among other reasons, the United States has a good track record of managing cases via plea agreements with about 90% of its cases being settled by a plea agreement[5]. Kenya on the other hand was considered as they are a common law African country which has had its plea bargaining laws in force since 2008 and so a helpful analysis could be made from their successes and challenges. A comparative analysis was made between the laws of the two countries and the best practices of both were reduced into Act 1079 with some modifications to suit our Ghanaian preferences. For instance, Act 1079 prohibits plea bargaining in cases of high treason, high crime, rape, defilement, genocide, robbery, kidnapping, murder, attempted murder, abduction, piracy, hijacking and an offence related to public elections.

Benefits of Plea Bargaining

The foremost benefit of Plea bargaining is the that it cuts the long trial process short. The accused upon accepting a plea bargain need not go through a long trial before being convicted (if at all). He may have his charge reduced to a lesser offence or his punishment reduced or have some charges levelled against him withdrawn.

The expeditious disposal of criminal cases leads to a significant reduction in the case load of both Judges and prosecutors who are already overwhelmed and overburdened with cases. This gives room for both the courts and prosecutors to concentrate on other cases not amenable to plea bargaining and would also leads to increased productivity.

Plea bargaining helps reduce congestion in the prisons. Accused persons, especially those in remand, would have the opportunity to enter into plea bargaining for a reduced sentence. In effect, a shorter sentence for the accused person would cumulate into less time spent in prison which would help reduce congestion in prisons.

Plea bargaining gives the accused some form of certainty with respect to the punishment he would face. This is because Act 1079 provides for the plea agreement to include a suggested sentence for consideration by the court, hence an accused has the opportunity to discuss same with the prosecutor before accepting the terms of the plea agreement[6].

The victims in a case are recognised as they can make an input in the plea bargaining process. They are spared having to partake in a court trial to relive their ordeals when testifying. Also, victims are assured of compensation and restitution (where necessary), in addition to the punishment of the accused[7].

Proposed Implementation of Plea Bargaining

Though Act 1079 has been passed, there is still some work to be done before it can take full effect. The Honourable Attorney-General Godfred Yeboah Dame upon the passing of Act 1079 into law stated that a series of training programmes would be organised for judges and prosecutors in the Office of the Attorney-General to ensure a sound and efficient application of the new law. This training would subsequently trickle down to Police Prosecutors who may be permitted by Act 1079[8] to engage in plea bargaining under the supervision of the Attorney-General. There is the need to also draft practice directions or guidelines for the implementation of Act 1079 to facilitate uniformity in its usage. The General public would also need to be sensitized on Act 1079 to encourage its acceptance and rule out potential misconceptions which may arise[9].

Potential Challenges with the Implementation of Act 1079

One major difficulty with the implementation of Act 1079 is adequate funding for the nationwide training of the judiciary and prosecutors and the sensitization of the general public. Another hurdle which has to be crossed is making people understand the nuance of plea bargaining under Act 1079 and dispelling ideas such as: Plea Bargaining is not punitive enough and that only a full trial can ensure the punishment of the accused person.

Conclusion

Plea bargaining has come to stay. Act 1079 would serve as an effective tool in the efficient and speedy delivery of justice in the criminal sector. The possibility of offering an alternative to a long criminal trial is an exciting prospect for all stake holders in the criminal justice sector. Though its early days yet, Act 1079 promises to facilitate the timeous delivery of justice which should have a ripple effect on other branches of the criminal justice divide such as the reduction in remand prison inmates and in effect ‘curing’ the popular maxim “Justice delayed is justice denied.”

Footnotes

[1] The Republic vrs Eugene Baffoe-Bonnie and 4 others (2018) JELR 92117 (SC)

[2]which forbade courts to grant bail in certain cases (Martin Kpebu vrs Attorney-General 2017-2020 SCGLR)

[3] Ninth Edition, page 1270

[4] Memorandum to Criminal and Other Offences (Procedure)(Amendment) Bill 2020

[5] Bureau of Justice Assistance, US Department of Justice 2011

[6] Section 162F Criminal and Other Offences (Proceedure)(Amendment) Act 2022, Act 1079

[7] Section 162E of Act 1079

[8] Section 162B of Act 1079

[9] Common misconceptions such as plea bargaining being an easy way out for the accused as he would not be punished or the victim would not have any input in the plea bargaining process.