Revisiting the Right to Counsel in Light of the Introduction of Plea Bargaining in Ghana

Source: E. K. Bidzakin

A close look at the practicality of Article 14(2) of the Constitution of Ghana, 1992, and the protections it affords in plea bargaining negotiations.

Introduction

Despite the presence of the Legal Aid Commission in Ghana, and a constitutional provision that protects the right to counsel, many accused persons appear before a court without legal representation[1]. This often leads to accused persons pleading guilty to crimes they may not have committed during what is usually a rushed process of inquiry after the prosecution reads its charge sheet.[2] The Courts have yet to fully ensure that the right to counsel is guaranteed to persons without lawyers especially in misdemeanour cases, leaving the vast majority of accused persons to grapple with the nuances of substantive criminal law and procedure which they barely understand.[3] The introduction of plea bargaining in Ghana, although a useful addition to the criminal justice corpus, is sure to worsen the effects that arise out of the lack of counsel for accused persons. Prosecutors and the Office of the Attorney General will most likely offer plea deals to accused persons who are ill-equipped to determine whether or not to take a plea deal and to understand the legal implications of taking or rejecting a plea deal. This paper seeks to discuss the general right to counsel, its current application in Ghana, and how the right is central to the effective administration of plea bargaining.

The Right to Counsel in Ghana

Modern-day human rights can be traced to the United Nations declaration that everyone is entitled to all rights and freedoms "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."[4] These rights which have been dubbed "human", whether classified as fundamental or not, are the foundation of the international community's concept of democracy. They are "the foundation of freedom, justice, and peace in the world" and are indeed universally recognized to be derivable from the inherent dignity and equality of all persons constituting the human family[5]. These international perspectives greatly influenced the framers of the 1992 Constitution of Ghana, so much so that a chapter which is Chapter Five (5) was devoted to fundamental rights and freedoms including the right to a fair trial for every person in Ghana, irrespective of their citizenship.[6] The further guarantees of the right to a fair trial are made possible by the right to counsel.[7] A fortiori, Article 14(2) contained in the same chapter states that “A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, ... of his right to a lawyer of his choice.”[8] In the case of the Republic v. High Court (Fast Track Division) Accra: Ex Parte Tsatsu Tsikata[9] the Supreme Court of Ghana defined the phrase “lawyer of his choice” as provided in Article 14(2) by stating what it is; it held that a lawyer of one’s choice was not a particular lawyer if such lawyer knowingly absents himself from the court”. Thus, concluding that any lawyer who is appointed as counsel qualifies in this regard.

Article 14(2) if read alone seems to limit the right to counsel to a right to be merely informed by the prosecutor or arresting officer of one’s right to appoint a lawyer. However, if read together with the Courts Act of Ghana, this right imposes an obligation on judges to “ assign a lawyer by way of legal aid to any party to any proceedings before the Court or Tribunal where the Court or Tribunal is of the opinion that it is desirable in the interest of justice that the party should have legal aid and that he is financially unable to obtain the services of a lawyer.”[10] Article 294 of the Constitution expands this right even more by mandatorily requiring and stipulating that a person is entitled to legal aid in connection with any proceedings relating to the Constitution if he has reasonable grounds for taking, defending, prosecuting, or being a party to the proceedings which seek to enforce any of the provisions of the Constitution.[11]

The question of what constitutes legal aid becomes pertinent at this point in determining the scope of this right. The Courts Act graciously provides the answer in sub-section 4 of Section 144, where it defines legal aid as consisting of representation by a legal practitioner including assistance in preliminary or incidental matters to any proceedings or arriving at or giving effect to a compromise to avoid or to bring an end to any proceedings.[12] This broad definition is certainly not limited to the legal aid commission but extends to all legal practitioners who ply their trade in the Courts of Ghana.[13] It also covers proceedings such as plea bargains which seek to find and give an effect to a compromise before or during a trial.

On several occasions, the Courts in Ghana have had the opportunity to adjudicate the effect of this right. In the Court of Appeal decision in Okorie alias Ozuzu v The Republic[14] Justice Azu Crabbe interpreting similar provisions on the right to counsel in the Constitution of Ghana, 1969 held that a person who was lawfully arrested or detained must be informed of his right to consult counsel of his own choice as required by Article 15(2) of that Constitution, otherwise, confession statements under caution obtained from such a person would not be admissible in evidence at his trial. This decision was based on the opinion of the Court that the right to counsel is fundamental to the ideals of a fair trial, which meant that whether an infringement of that constitutional right led to a miscarriage of justice or whether it had been raised by counsel on appeal was irrelevant in determining if the right had been breached. In arriving at this decision, the court determined that the right to counsel was a fundamental right. The court relied on the United States Supreme Court decision in Miranda v Arizona[15] and the principles underlying it as persuasive authority.

This decision was closely followed by Republic v. Akosah[16], where the High Court excluded a confession obtained by the police from the defendant, who had been accused of attempted abortion because the police before questioning him did not inform him of his right to consult a lawyer and to have him present before answering any question. Clearly, the right to counsel in Ghana is therefore fundamental to a fair trial, and any usurpation of that right will result in the quash a conviction or any proceedings that have been held in violation of that right on appeal. It is safe to say that this right has come to stay in Ghana and is an essential element in every trial.

The Right to Counsel and Plea Bargaining

Ghana has fairly discharged its obligations in providing legal counsel to accused persons through the legal aid scheme[17] and the Court Assigned Counsel Scheme.[18]However, these interventions have not been without hitches. Firstly, the Legal aid scheme does not provide legal counsel as of right to those in need, but rather has the discretion to determine which cases to take[19]. Even though it provides automatic assistance to those who have been charged with offences that have a penalty of up to life imprisonment, it omits and regrettably so, protections for persons charged with serious or capital offences from this automatic assistance. [20] For both the Court Assigned Counsel and Legal Aid, clients still pay certain fees inclusive of filing fees, and cover administrative costs, the costs of preparing a record of appeal, and so forth.[21] Currently, most accused persons charged with serious crimes are covered by legal aid protections and barring such coverage may be assisted by court-assigned counsel. However, these legal aid protections do not extend to the two groups that are subject of the plea bargaining bill: defendants in lower courts charged with misdemeanours and second-degree felonies and who typically appear in court without legal representation.[22] Consequently, the purpose of this paper is to discuss how this lack of counsel will affect the plea-bargaining process and what might be done about it.

“Criminal justice today is for the most part a system of pleas, not a system of trials.”[23] The practice of plea bargaining or plea negotiations occurs when the prosecutor offers a lesser penalty or no time served in exchange for eliciting a guilty plea from the defendant.[24] This substantial discretion gives the prosecutor the legal power and the flexibility to negotiate a plea bargain, especially when the odds of obtaining a conviction are not that good for different reasons or the cases are numerous, routine, involving defendants who have limited financial means to mount a vigorous defence and therefore have little choice but to settle[25]. Plea bargaining as it is generally practised today was not found in the common law until the nineteenth century mostly because it encompassed a non-trial method of determining criminal cases.[26] Early American legal views on the practice were that it was unconstitutional because such a non-trial procedure subverted the design of their Constitution, which provided that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial. .by an impartial jury”[27]

Over the past two decades, plea bargaining has been accepted by some African countries[28] as a solution to watering down the piles of dockets before judges[29], long unending criminal trials[30], and the alarming remand incarceration system[31] which are the ills of criminal justice administration. Additionally, plea bargaining has also been welcomed as a solution to decongesting the prisons and saving the resources expended by the state in funding prosecutors and investigators to build cases against accused persons during trial. In response to these views, a plea-bargaining bill was brought before the Parliament of the Republic of Ghana in December 2021.[32] It contained provisions allowing the accused to admit their guilt to the court for certain nonviolent crimes and enter a negotiation with the prosecutor to reduce their sentence or even avoid serving time. Passing this bill will provide an outlet for guilty persons to admit their guilt, bypass arduous judicial proceedings, and receive their punishment sooner.[33]

The persons who qualify to be considered for plea negotiations in Ghana are persons charged with nonviolent crimes and these persons usually fall in the bracket of persons charged with misdemeanours and second-degree felonies who are mostly unrepresented by counsel. This poses a very imminent risk that accused persons without counsel may be induced by prosecutors to take pleas without understanding the implications. The following reasons account for this assertion.

An accused person is generally in a vulnerable position after being arrested and detained. He is most likely not in the right psychological state to make a good decision.[34] Research has proven that pretrial detention increases a person's likelihood of pleading guilty by forty-six percent (46%).[35] In Ghana there have been rife reports of the BNI and police holding people in pretrial detention, manhandling, and putting remand prisoners through inhumane treatment before trial in the news[36]. There is a growing sense of distrust in our security agencies by the citizenry[37]. The question arises, how can an accused person feel confident in a plea agreement, when the state actors have already provided him with a taste of prison.

Ethically, this will also pose challenges to prosecutors. The effectiveness of a prosecutor ultimately lies in his ability or otherwise to convince a court in any given trial of the guilt of the accused[38]. In plea negotiations, a prosecutor is given an easy way out if he succeeds in brokering a plea deal with the accused. It is for this reason that the courts only admit a confession of an accused person obtained by the police into evidence only when it was given voluntarily.[39] Confessions given by accused persons in detention are subjected to judicial scrutiny.[40] In fact, such a confession will not be admissible if there is any evidence to show that it was coerced by the police.[41] During plea bargaining what the accused person does is to admit to the crime, even though this is different from a confession in form, it is substantially similar as either can be relied upon by a court to convict the accused. Because confessions carry such an evidential weight, medieval European courts accepted summarily trying cases where the accused had confessed. Since the standard of proving crime was quite high, and the evidence against the accused persons was nothing short of circumstantial, prosecutors who wanted to avoid going through the indictment process began to use torture to force accused individuals to confess. They knew without a confession the case would be thrown out, whereas a confession would guarantee them a summary trial in which a conviction was certain.[42]

It is to safeguard against this sort of abuse of power that the Court of Appeal in the case of Akrofi Kudoaji v The Republic[43] held that a confession of an accused person would only be admitted into evidence if the requirements in Article 14(2) on the right to counsel was adhered to, and if the accused made the statement in the presence of an independent witness who understands the language in which the accused made the confession and at the same time can read and understand the English Language. Secondly, the court required that “where the confession was in writing, the witness must write on it that the confession was voluntarily made and further that the accused understood it fully”.

Beyond ensuring that confessions by accused persons are not manufactured by prosecution and police, the courts have also emphasized the importance of obtaining a voluntary plea from an accused person who was not coerced but understood the implication of his plea. This consideration was seen in Yeboah v The State[44], where the accused was arraigned before the District Court on the charge of stealing. On his first appearance in Court, he entered a plea of not guilty and was subsequently granted bail. On the second appearance, he was discharged for want of prosecution. He was later rearrested on the same charge and appeared before the same judge, this time pleading guilty. The judge convicted him and sentenced him. On appeal, he argued that his trial was irregular because the prosecution induced him to change his plea and that he did not understand the import of a plea of guilty. Kinsley Nyinah J. (as he then was) sitting in the Court of Appeal allowed the appeal holding that when the appellant suddenly changed his erstwhile plea of “not guilty” to “guilty” the magistrate “ought to have paused for judicial thought” and enquired from the accused the circumstances surrounding and leading to his sudden change of plea and recorded his answers. If his answers indicated that he had a defence, the court should have proceeded to try the case under section 199 (4) of the criminal procedure code, 1960 (Act 30). Thus, a failure to do that was a neglect of duty. He also held that the appellate court could go behind the record of appeal to find out whether the accused “deliberately and unequivocally” pleaded guilty, or if he did so because of some misapprehension or inducement. If it was the latter, the appellate court ought properly to have held that there had been a miscarriage of Justice and allowed the appeal. In this case, his lordship explained that “In all the circumstances, I find and am satisfied that the appellant did not deliberately and unequivocally plead “guilty” to the charge of stealing.”

In Ghana, judges are expected to inquire about the accused person’s counsel before proceeding in cases involving serious crimes. But the case is not the same for persons accused of lesser crimes and the lack of concern for this gap in our law by our prosecutors and judges alike can be traced to several factors not limited to Article 19(2)[45] which gives an accused person the right to self-representation[46], the high costs of retaining counsel, and the high illiteracy levels among most of the accused persons. In my opinion, these aforementioned factors make it even more pertinent to assign counsel to any person who is being offered a plea deal irrespective of the nature of the criminal charge. It is my considered view that the character of a criminal charge which might not have called for being assigned counsel changes when they are offered a plea deal because they will not have a trial and it becomes very necessary and desirable in the interest of justice[47] that such a person be assigned, counsel.

The dissent of His Lordships Dotse. (J.S.C) and Gbadegbe (J.S.C) in the more recent case of Gabriel Joanne v The Republic[48] is useful in advancing this view. On appeal to the Supreme Court, one of the issues raised by the accused was whether the trial court judge erred by accepting a change of plea by the accused in the absence of her counsel without explaining its implications to her. The background of this case was that on her first appearance in court the accused insisted on having counsel present before she could plead to the charges brought against her, the court agreed and at the next hearing, she pleaded not guilty to the charges in the presence of counsel. Then on 4th May 2010, the appellant was in court without her counsel and she without any prompting informed the court that she wanted to change her plea. The trial judge without any inquiries into her decision had the charges read to her and she pleaded guilty, and she was convicted and sentenced to 10 years IHL on her plea.

The majority decision of the Supreme Court was to the effect that the appellant had been informed of her right to counsel and demonstrably insisted and exercised that right. On the other hand, the appellant also had the right to elect to conduct her case in person[49] and as such understood the consequences of changing her plea. The court held that in a summary trial such as the one complained about, proceedings could continue in the absence of counsel for an accused person; furthermore, it was regular for the trial judge to record the plea of guilty and proceed to convict and sentence the appellant. It was only in capital offenses that as a matter of practice the trial Court does not proceed in the absence of a lawyer for the accused. The appeal was therefore dismissed for lack of merit.

In the dissent of Justice Dotse, he explained that the case presented a peculiar problem of balancing the effect of an irregularity against upholding strictly the liberty of accused persons. His view was that the need to uphold respect and uphold the liberty of an accused person, all in a bid to ensure that the appellant is dealt with justly, is without distinction a necessity as it applies in summary trials (for less serious crimes and misdemeanours) or trials by indictment (for capital or serious offences). Justice Gbadegbe also dissenting captured the essence of protection of the right to counsel as follows: “when people are accused of crimes and going through trials, the role of counsel is of utmost importance in ensuring that they are properly advised in preparing their defence and all the options that are available to them are explained to them to ensure that the trial process is fair and also to uphold the integrity of the judicial process by which their right to personal liberty might be curtailed following their conviction. I believe that the right to counsel accused persons if not respected by our courts would render Article 14(2) a mere expression of lofty principles that are devoid of any substance. Such a state of affairs would not only be regrettable from the point of view of our duty in terms of our oath to “preserve, protect and defend the Constitution” but undermine the corollary duty of our citizens to respect the Constitution”.

This decision is quite disconcerting. The Supreme Court failed to utilize a unique opportunity to expand the scope of Sections 171(4) and 199 of Act 30 or urge the legislators to do so. Instead, the court took a strict textualist approach, dismissing the case on grounds that the failure of the judge to explain the consequences of pleading guilty in the absence of the appellant's counsel was a technicality that did not result in a substantial miscarriage of justice to quash the conviction. The dissent, however, is very relevant to broadening the scope of protection of the rights of accused persons to counsel no matter the nature of the crime or the circumstances. The right to counsel in Ghana is a fundamental right and as such, there should be no distinction between the treatment of serious and less serious crimes in assigning or requiring the presence of counsel in taking a plea or in conducting a trial. This case involved the offense of exportation of narcotic drugs and possession of same. It is important to note that this offense is not expressly prohibited from the scope of the plea-bargaining bill and an accused charged with this offense may be offered a plea deal under the plea bargaining bill. The effect of this decision will be that if the accused had accepted a plea deal in the absence of her lawyer that would have in no way breached her right to counsel because the offense, she was charged with is a lesser crime and does not call for strict scrutiny before her plea is accepted.

In the 1963 case of Gideon v Wainwright,[50] the United States Supreme Court was faced with the question of whether Earl Clarence Gideon’s Sixth Amendment right to counsel was breached when the Florida State Court failed to assign him, counsel when he appeared without one on the basis that the Florida State law only allowed for court assigned in cases involving capital offenses. In a landmark unanimous decision, Justice Black speaking for the court held that the Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently waived. The reasoning of the court was as follows; “That the government hires lawyers to prosecute and defendants who have the money to hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him.”

Indeed, to the man who has not learned the art of legal defence, the effects of a conviction may pale when compared to freedom. Just like in the Bible where Esau sold his birth right to his brother for a paltry bowl of porridge to satisfy his immediate need-hunger[51], an accused person who feels the world is crashing under his feet, and who is afraid to lose his freedom may desperately grab any opportunity to walk away with his freedom even in situations where the prosecution’s case against him may be nothing short of circumstantial and at best, weak. It is then the duty of his lawyer to conduct a thorough assessment of his case and advise him accordingly. The duty of our courts is to ensure that Article 14 (2) is not an expression of lofty principles devoid of substance.

Another reason why I believe that accused persons may be taken advantage of during plea bargaining is the fact that the plea-bargaining bill of Ghana has no mention of a precondition that an accused person must consult with counsel before accepting or rejecting a plea deal, in fact, it envisages a situation where the accused may sign the plea deal without a lawyer. Section 162 F (4) states that “the plea deal shall be signed by the prosecutor, accused and counsel of the accused if any''[52]. Thus, the absence of counsel cannot vitiate a plea deal nor is the presence of counsel a pre-requisite to commencing plea bargaining. Going by the majority decision in Gabriel Joanne v. the Republic supra,[53] it is safe to infer that if an accused person after accepting a plea deal moved to the Supreme Court to set aside the deal on the basis that he signed it without counsel, the action will fail, and the plea deal will stand on the basis that he was informed of his right to counsel, he had the right to represent himself and the nature of his offense was not serious enough to have required the judge and the prosecutor to ensure that he understood the implications of the deal before accepting it. This is quite unfortunate and may in the end produce undesirable results. The long-term effects of even minor convictions such as misdemeanours are so grave that it is untenable for an accused person without legal education to sign a plea deal even if it affords him no jail time. People with criminal records are often denied job opportunities. Opportunities to contest in elections, to serve as directors on certain boards especially in cases of financial crime are also lost[54]. They lose educational opportunities, visas among others.[55] This is such a high price to pay for freedom where there could have been a chance of winning on both ends. It is therefore imperative that the right to counsel be enforced vigorously to ensure that we are not solving the problem of lack of speedy trials with another problem of convicting innocent people who do not have the means and technical legal knowledge to fight their cases in court.

Recommendations

Commenting on the right to counsel, Lawyer Kojo Anan Ankomah stated as follows: The framers of the Constitution wanted the right to counsel to be respected, not only where there has been a formal arrest, but upon every other restriction or detention. Restriction refers to any form of limitation, constraint, restraint, or control being exercised over a person. Detention means to be taken into custody, incarcerated, or locked up. These words were deliberately used to cover every conceivable situation where any form of restraint, however slight, is exercised over any person by any authority.[56]

This broad definition of the right covers every conceivable proceeding after a case is brought against a person including plea bargaining. Therefore, any attempt at plea bargaining must be approached with strict adherence to fair trial principles. The oft-cited defence of governments when held to account by their subjects over the lack of the implementation of certain human rights is usually the financial cost of implementation. The Courts which should be the last resort in the hope of implementing these enshrined rights duck into the sand and cover themselves behind the doctrine of the political question[57]. I believe the framers of the 1992 Constitution saw this coming and provided a remedy by requiring in Article 37(2) of the 1992 Constitution that the state enact appropriate laws to assure the protection and promotion of all other basic human rights and freedoms, including the rights of the disabled, the aged, children and other vulnerable groups in development processes[58] and mandating the judiciary to enforce human rights in Ghana.[59] However, enacting laws has not been enough to ensure the protection of the rights of the people of Ghana. We need an action plan for the implementation of all the laws enacted to ensure the right to counsel in Ghana. A time has come for the government to go beyond legislation to provide concrete mechanisms that ensure that this right will not be violated during plea negotiations, to this end I believe the following reforms are necessary.

First, the plea-bargaining bill should include a provision that makes the presence of counsel a prerequisite to the commencement of plea negotiations. This will eliminate all risks of inducement and coercion of the accused person. A lawyer’s duty[60] is to provide his client with the best legal strategies to win his case. In the area of criminal law, this duty extends to ensuring that the accused person explores all his options including pleading guilty if it is the best option for him. Having a lawyer present will also shore up the public’s confidence in the plea deal administration.

Second. Plea bargains should be held to the same standards as contracts. Once a prosecutor and an accused person begin plea negotiations, it is only just that they are pari-passu. Plea deals are basically contracts where a guilty plea is considered for a lesser sentence. Thus, where the accused person can show undue influence on the part of the prosecutor, the plea bargain should be voided. It is trite law that undue influence whether actual or implied occurs where there has been some improper conduct or some coercion from a person or some overreaching who usually has a personal advantage to obtain a certain result or compel an action to be done by the person against whom the influence was exerted[61]. In such cases, if the accused can prove that he was unduly influenced the court must intervene to ensure that the prosecutor does not retain the benefit arising from a wrongful act[62].

Third, Police prosecutors should not initiate or conduct plea bargaining on behalf of the state. They are ill-equipped with substantive criminal law and procedure to make a well-informed assessment of the guilt or innocence of an accused person. In Ghanaian district courts, we often see police prosecutors prosecuting with defective charge sheets and bad law. This must not be the case in dicey matters when plea bargains are involved because it completely removes judicial oversight from the bargaining process and judges only come in when the plea bargain has been made to approve or reject it. This issue of police prosecutors also presents a germane concern on whether it is not unfair to police prosecutors and in some cases career magistrates who have not had the benefit of formal legal education to be negotiating with defendant’s counsel. The balance then would be that both parties (the prosecuting police officer or career magistrate and the accused) must be armed with legal counsel during negotiations to prevent the accused whose counsel is present to also take advantage of the police prosecutor using the legal tricks up his sleeve.

Fourth. A test must be put in place to assess waivers of the right to counsel during plea bargaining. In Ghana accused persons have the right to self-represent during criminal proceedings and that right cannot be taken away during plea bargaining. Courts would treat a guilty plea by an accused who has after waived his right to counsel as an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.[63] Nonetheless to ensure fairness in the process, it is important to measure such waivers to counsel on a standard that will determine whether they were actually made voluntarily and intelligently by an accused who understood the implications of such waiver. This is because the only grounds a defendant may only attack the voluntary and intelligent character of the guilty plea is to show that he did not have counsel, that the advice he received from counsel was not within the standards of competence or he was forced to waive his right to counsel.[64] So its pertinent that the court have a way of checking to see if the accused person’s waiver of the right to counsel was not elicited by the prosecution in exchange for a much more lenient sentence than they would have offered under the circumstances of the particular case. This will act as a protection for accused persons who may just rush to waive that right once the prosecution offers a seemingly enticing deal without having any recourse to the benefit of understanding the kind of defences that may be available to them.

There is also a need for reforms in the legal aid act and in our Criminal and other Offences (Procedure) Act requiring that in all criminal proceedings irrespective of the charge involved, accused persons who do not have counsel should be assigned state-funded counsel before the case proceeds. This is the only way the intentions of the framers of the Constitution will see the light of day. The right to counsel is a fundamental right. Therefore, a breach of the right goes to the root of the legality or otherwise of all subsequent proceedings in a criminal trial. It also goes to the root of the constitutionality or otherwise of the plea bargaining process. If the accused is helpless and cannot match the prosecutor in knowledge and intellect, how then can he make a defence that is capable of raising a reasonable doubt or assess his own case to decide whether if he proceeds to trial, he can raise a reasonable doubt in the prosecution’s case? A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama[65]: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he is not guilty, he faces the danger of conviction because he does not know how to establish his innocence." It is therefore imperative that the state as the ultimate enforcer of the constitution amend the law to provide a safeguard for people by insisting on the presence of counsel during plea bargaining”.

Conclusion

The right to counsel in Ghana is constantly threatened by non-legal factors such as the rising costs of legal services, the ineffectiveness of legal aid, and the challenges in accessing it. Despite these problems, the courts have made significant strides in recognizing and enforcing this right albeit in limited circumstances where the case involves a serious crime or whether there is no other evidence pointing to the fact that the accused elected to self-represent his case. A peculiar case of severe non-compliance can be found in what is commonly termed as non-serious cases tried in the lower courts in districts around the country where police prosecutors notoriously prosecute accused persons who in most cases are unaware of their right to counsel and if they are aware, cannot afford to engage one. This is concerning in light of the impending implementation of plea bargaining in Ghana. Most of the accused persons who are likely to be offered deals will be unassisted by counsel. Without the guidance of counsel, it is impossible to negotiate a deal that will be in the best interests of the accused. It is therefore my hope that this paper will start a conversation on the ways the law and its institutions can be reformed to protect the rights of accused persons who will participate in plea bargaining in Ghana.

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Missouri v. Frye 566 US 134, 132 SCt 1399, 182 L Ed 2d 379 (2012).

Morhe, Renee Aku Sitsofe. "An overview of legal aid for criminal cases in Ghana: the history and challenge of providing legal aid." Commonwealth Law Bulletin 38, no. 1 (2012).

Nakibuule Gladys Kisekka, ‘Plea Bargaining as a human rights question’ Vol. 6 Cogent Social Sciences (2020).

Okorie alias Ozuzu v The Republic [1974] 2 GLR 272, CA.

Cynthia Alkon ‘Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems’ (2010) 19 Transnat’l L. & Contemp. Probs 355.

Powell v. Alabama 287 U.S. 45 (1932).

Redgment J, ‘They Brought Me to Make a Confusion,’ The Comparative and International Law Journal of Southern Africa 17, no. 3 (1984).

Republic v Akosah [1975] 2 GLR 406.

Republic v. High Court (Fast Track Division) Accra: Ex Parte Tsatsu Tsikata [2007-2008] SCGLR 1200.

Robinson Nehemiah, ‘The Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation’ New York, Institute of Jewish Affairs (1958).

Subramanian, Ram, Léon Digard, I. I. Melvin Washington, and Stephanie Sorage, ‘In the shadows: A review of the research on plea bargaining,’ Vera Institute of Justice (2020).

Taylor v Kentucky 436 U.S. 478 (1978).

Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973).

William J. Stuntz, ‘Plea Bargaining and Criminal Law Disappearing Shadow’, (2004) Harvard Law Review Vol. 117, No. 8.

The Constitution of Ghana, 1992.

The Evidence Act of Ghana 1975, (NRCD 323) Section 120(3).

Tori Hirsch, “Plea Bargaining in Ghana”, Centre for Global Justice, Regent University, IJM Ghana, https://globaljustice.regent.edu/2022/03/plea-bargaining-in-ghana/ (March 16, 2021).

Viano, Emilio C. "Plea Bargaining in the United States: A Perversion of Justice," Revue internationale de droit pénal, vol. 83, no. 1-2, (2012).

Yeboah v The State [1964] GLR 715 at 717.

Endnotes

[1] Morhe, Renee Aku Sitsofe. "An overview of legal aid for criminal cases in Ghana: the history and challenge of providing legal aid." Commonwealth Law Bulletin 38, no. 1 (2012): 105-117.

[2] Id

[3] Martin A. B. K. Amidu, "Right to State Appointed Counsel in Criminal Justice Administration under the Constitution, 1992," Review of Ghana Law 19 (1993-1995): 159-181.

[4] Robinson Nehemiah, ‘The Universal Declaration of Human Rights: Its Origin, Significance, Application, and Interpretation’ New York, Institute of Jewish Affairs (1958).

[5] Id

[6] The Constitution of Ghana, 1992.

[7] L Itoh, ‘Why South Africa should embrace Gideon: An analysis of the Right to Counsel and Why it Should Be Extended to All Defendants’ 44 International Law and Politics (2011-2012) 951-963. According to the author at 965, ‘since standards for a fair trial include the defendant's right to be represented by counsel, any violation of that right renders the trial unfair regardless of the cause including the defendant's lack of resources.

[8] Id at Art. 14(2)

[9] [2007-2008] SCGLR 1200

[10] Courts Act of Ghana, 1993 (Act 459), Section 114(1)(2)

[11] The Constitution of Ghana supra note 6 at Art. 294.

[12] Id at Section 144(4).

[13] IK Tufuor, ‘Greasing the wheels of legal aid in criminal proceedings in Ghana: An evaluation of the legal and regulatory framework,’ 19 African Human Rights Law Journal (2019) 267 - 289.

[14] [1974] 2 GLR 272, CA.

[15] 384 US 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966); in this case the, the police, failing to inform the defendant of his right to consult with his attorney or of his right to remain silent, confronted and subsequently arrested him on the charge of an alleged murder. During the interrogation, his request for his attorney was denied and he subsequently confessed. The court per Warren C.J., held that statements were constitutionally inadmissible since it contravened the individual’s privilege not to incriminate himself under the Fifth Amendment to the Constitution.

[16] [1975] 2 GLR 406.

[17] Legal Aid Commission Act, 2018 (Act 977), Section 1 states that the object of the Commission is to provide legal aid to indigents and persons with reasonable grounds for taking, defending, prosecuting or being party to proceedings related to the Constitution in accordance with Article 294 of the Constitution.

[18] Courts Act, 1993 (Act 459) Section 114(1)(2).

[19] Latham & Watkins L. L. P., ‘A Survey of Pro Bono Practices and Opportunities in 84 Jurisdictions,’ (2016).

[20] Id

[21] IK Tufuor, ‘Greasing the wheels of legal aid in criminal proceedings in Ghana: An evaluation of the legal and regulatory framework,’ supra note 13.

[22] Criminal and other offences (Procedure) (Amendment) Act, 2021, Section 162 Q, expressly states that treason, or high treason, rape, robbery, murder, defilement, genocide and kidnaping are not covered by plea bargaining. Thus, a majority of the offences covered are misdemeanours and other crimes with lesser sentences.

[23] 566 US 134, 132 S.Ct. 1399, 182 L Ed. 2d 379 (2012).

[24] Criminal and Other Offences (Procedure) (Amendment) Act, 2022, (Act 1079) Section 162A (1); Gary Slapper and David Kelly, ‘The English Legal System’ 15 Routledge (2014 - 2015); M Ezeh, ‘Plea Bargaining In Nigeria: Legal Safeguards Against Abuse,’ https:// papers.ssrn.com; Cynthia Alkon, ‘Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems’ 19 Transnat’l L. & Contemp. Probs 355. (2010).

[25] Viano, Emilio C. "Plea Bargaining in the United States: A Perversion of Justice", Revue internationale de droit pénal, vol. 83, no. 1-2, (2012) pp. 109-145.

[26] John H. Langbein, "Understanding the Short History of Plea Bargaining," Law & Society Review 13, no. 2 (Winter 1979), 261-272.

[27] Id

[28] Formally introduced in Nigeria by the Administration of Criminal Justice Law of Lagos State, 2011 and the Administration of Criminal Justice Act, 2015, Section 494(1); Introduced into South Africa by the Criminal Procedure Act, Section 105A; Introduced in Kenya through the adoption of the Criminal Procedure (Plea Bargaining) Rules, Legal Notice No. 47 Criminal Procedure (Amendment) Code, Section 137(A).

[29] M Ezeh, ‘Plea Bargaining in Nigeria: Legal Safeguards Against Abuse,’ Available at SSRN 3469724 (2018).

[30] Id

[31] William J. Stuntz, ‘Plea Bargaining and Criminal Law Disappearing Shadow’, (2004) Harvard Law Review Vol. 117, No. 8, 2560-2561.

[32]Tori Hirsch, “Plea Bargaining in Ghana”, Centre for Global Justice, Regent University, IJM Ghana, https://globaljustice.regent.edu/2022/03/plea-bargaining-in-ghana/ (March 16, 2021).

[33] Id

[34] Subramanian, Ram, Léon Digard, I. I. Melvin Washington, and Stephanie Sorage, ‘In the shadows: A review of the research on plea bargaining,’ Vera Institute of Justice (2020).

[35] Id

[36] Joseph Ackah Blay, ‘Ghana dragged to ECOWAS court over alleged human rights violations of boys featured in Joy News Documentary’ (myjoyonline.com), https://www.myjoyonline.com/ghana-dragged-to-Ecowas-court-over-alleged-human-rights-violations-of-boys-featured-in-joynews-documentary /, Sammy Crabbe v. Attorney General, Min. of Justice and The Director, BNI (2009) JELR 65006 (HC).

[37] Id

[38] Taylor v Kentucky 436 U.S. 478 (1978).

[39] The Evidence Act of Ghana 1975, (NRCD 323) Section 120(3).

[40] Cubagee v Asare and Others (NO. J6/04/2017) [2018] GHASC 14 (28 February 2018).

[41] Redgment J,‘They Brought Me to Make a Confusion,’ The Comparative and International Law Journal of Southern Africa 17, no. 3 (1984): 380–84.

[42] Ernest van den Haag, "Limiting Plea Bargaining and Prosecutorial Discretion," Cumberland Law Review 15, no. 1 (1984) 1-22.

[43] Unreported Cases of the Court of Appeal, SUIT NO.: H2/10/2014.

[44] [1964] GLR 715 at 717.

[45] Id

[46] The Constitution of Ghana supra note 6 at Art. 19(2).

[47] Nakibuule Gladys Kisekka, ‘Plea Bargaining as a human rights question’ Vol. 6 Cogent Social Sciences (2020).

[48] (J3 3 of 2011) [2012] GHASC 17 (18 April 2012).

[49] Id See the opinion of Adinyira J.S.C and how she alluded to Article 19(2) of the Constitution and the Tsikata Case supra note 9 in support of this holding.

[50] 372 U.S. 335 (1963)

[51] James, King, Nicky Wire, James Dean Bradfield, and Sean Moore. The Holy Bible. World Publishing Company, (1979) Genesis 25: 29-34.

[52] Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079).

[53] [2012] GHASC 17.

[54] Devah Pager ‘The Mark of A Criminal Record’ American Journal of Sociology (2003).

[55] Id

[56] Kojo Anan Ankomah, ‘What is it about the right to counsel that the BNI does not understand,’ I-CAN-GHANA The Blog, <<https://www.i-can-ghana.com >>, (August 25th, 2009)

[57] M.O. Mhango, ‘Separation of powers in Ghana: the evolution of the political question doctrine in Ghana.’

[58] J. N. K. Taylor, "The Scope of Human Rights in Ghana," Review of Ghana Law 19 (1993-1995): 84-104, pp.90

[59] Id at Art. 12(1), 33(1)(2)

[60] Agbemashior v SIC [1972] 2 GLR 65

[61] Allcard v Skinner (1887) 36 Ch D 145

[62] Douglas D. Guidorizzi, ‘Should We Really Ban Plea Bargaining: The Core Concerns of Plea Bargaining Critics,’ 47 Emory L.J. (1998) 753-765, (quoting Blackledge v Allison, 431 U.S. 63, 71 (1977).

[63] Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975)

[64] Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973)

[65] 287 U.S. 45 (1932)