The Role of a Criminal Case Complainant in Ghana

Source: Selasi Kuwornu, Esq.

Introduction

From the genesis of the modern state, the prosecution of an accused person has been the preserve of the State and not the victim or complainant. This is because crime is considered a wrong or injury against the State as a whole.[1] Thus, complainants have over the centuries played no other role than making a report and testifying in court. Is this the case even when a complainant is aggrieved by the conduct or outcome of a criminal case?

The legal position of a complainant in Ghana

A complainant in a criminal case is the one who reports a crime and is usually the victim or any other person who may have been affected by the crime. A complainant may be a natural person or a corporate entity or institution.

In Ghana, as is common to most jurisdictions, the power to initiate and conduct criminal proceedings is vested in the Attorney-General and all offences prosecuted in the name of the Republic of Ghana is at the suit of the Attorney-General or persons authorized by him.[2]

This means that a complainant does not have the locus standi to charge or prosecute any person for an offence committed. They are most often possible witnesses of the prosecution who may or may not be called by the prosecutor to testify. Their lack of interest in a case therefore does not preclude a prosecutor from continuing with the trial. Complainants who have lawyers can have them watch brief in court whenever the case is called but these lawyers cannot direct how the prosecution is conducted.[3] Should they have concerns about the trial court's decision, they also cannot appeal against the decision.

In the case of Mbrah v Johnson[4] for instance, the facts were that the accused-respondent was charged with the offence of abduction before the Fosu District Court Grade II as a result of a complaint lodged with the police by the complainant-applicant. Two months after the accused person had been charged, the complainant suspected that the judge had been corruptly compromised by the accused. The complainant, therefore, without the permission or the consent of the prosecuting attorney brought an application for the case to be transferred to another court.

At the hearing of the application, counsel for the accused objected to the capacity of the complainant to bring the application. It was held that in criminal prosecutions by the Republic, a complainant could have some interest, but he or she was principally and invariably merely a witness. She could not decide in which court the prosecution of the case was to be conducted. Her interest in the fairness of the trial was submerged into the dominant interest of the Republic.

This legal position is considered undesirable by many complainants especially those who are aggrieved by the conduct or outcomes of trials they are involved in. It cannot be disputed that the interests of complainants are of serious concern. Pwamang, JSC in the case of Gregory Afoko v The Republic[5] making reference to the 2004 revised Code for Crown Prosecutors noted that the decision to prosecute and to terminate prosecution of suspected offenders is a matter of immense public interest as it affects the rights of offenders and has serious implications for victims and witnesses. The simple fact is that the happenings of the criminal justice system affect them. They are after all seeking the justice that the system is set up to deliver.

Existing remedies for an aggrieved complainant

With respect to prosecutors, many complainants who may have challenges in the manner and conduct of criminal prosecutions, especially in cases where the Attorney-General decides to exercise his powers of withdrawal[6] and nolle prosequi[7], for instance, will have to resort to submitting petitions to the same office to seek redress.

With respect to actions that can be taken against judicial decisions, it is interesting to note that in cases such as The Republic v Korle Gonno District Magistrate Grade I; Ex Parte Ampomah[8] and in the recent case of The Republic v High Court, Human Right Division - Ex Parte: Naa Otua Swayne[9], it was judicially pronounced that complainants in criminal cases have locus standi in the area of prerogative writs, including certiorari applications.[10] It was held in those cases that in certiorari applications, any person who is interested in the outcome of the proceedings could apply as it is in the interest of the citizenry to ensure that the due process of law is observed by adjudicating bodies. And in the case of The Republic v High Court, Ho, Ex Parte Bediako II & Anor (Odum & Ors Interested Parties)[11] Dotse, JSC went further to state that complainants in a criminal case which is the genesis of a certiorari application must be deemed to have more than sufficient interest in the matter to qualify them to sustain the application before a court.

In the case of Ex Parte: Naa Otua Swayne[12] the applicant was the complainant in a criminal case titled The Republic v Prince Kofi Amoabeng and John Aidoo[13]. The two persons named in the charge sheet were facing prosecution at the Circuit Court, Accra. At the close of the prosecution’s case, the two accused persons made a submission of no case to answer but same was overruled by the trial Circuit Court judge. The two accused persons, however, did not appeal against the ruling of the learned circuit judge.

The first accused opened his defence, gave evidence and was cross-examined. Before he could call a witness, he invoked the supervisory jurisdiction of the Accra High Court (Human Rights Division) to quash the trial proceedings and prohibit the Circuit Court Judge on the ground, among others, that the trial was an infringement of his human rights. The High Court Judge, granted the application, quashed the whole proceedings of the Circuit Court and prohibited it from further hearing the case.

Aggrieved by the decision, the complainant filed a certiorari application at the Supreme Court. After determining the locus standi of the complainant/applicant in line with the legal position in the Ex Parte Bediako II case, the apex court quashed the ruling of the High Court judge on grounds that he had no jurisdiction to quash the proceedings of the Circuit Court in the manner he did.

Complainant participation in the prosecution process

In the newly passed plea bargaining law[14], the complainant/victim is given some audience. Section 162E provides that a prosecutor cannot conclude a plea agreement with an accused person without first informing the complainant or victim or their representative of the plea agreement. The prosecutor must also afford them an opportunity to make representations to the prosecutor regarding the contents of the plea agreement. Where they object to the terms of the plea agreement, they may cause a statement to be filed detailing the grounds for their objection which may be considered by the court in considering the plea agreement.

These provisions of the plea bargaining law are without a doubt a step in the right direction. They are similar to victim impact statements in some jurisdictions which are considered before accused persons are sentenced. The provisions also reflect the existing practice in the Ghana Code for Prosecutors which state that prosecutors must pay special attention to the interests of victims and witnesses. And when a decision is taken not to go on with prosecution, the prosecutor must inform the victim.

The practice of giving complainants legal avenues to protect their interests in criminal cases has the effect of boosting confidence in the criminal justice system and some countries are embracing this culture of complainant/victim participation. In the common law jurisdiction of India[15]for example, they have gone a step further by giving legal recognition to counsel for the complainant in criminal trials. In section 24(8) of their Code of Criminal Procedure, 1973 a trial court has discretion to permit the victim to engage an advocate of his choice to assist the prosecution.

In Northern Ireland, the Public Prosecution Service has a Victim and Witness Care Unit responsible for keeping complainants (victims) informed of the progress of the case from the moment their cases are received.[16]

The Crown Prosecution Service (CPS)[17] in England and Wales has in their Code for Crown Prosecutors the proviso that they do not act for victims or their families in the same way as solicitors act for their clients, and so prosecutors must form an overall view of the public interest. However, it is further indicated that prosecutors should take into account the views expressed by the victim about the impact that the offence has had and in appropriate cases, may also include the views of the victim’s family. It has been further indicated that if a case is to be stopped, care should be taken when choosing the method of termination, as this can affect the victim’s position under the Victims' Right to Review scheme[18] which is a scheme set up to provide a victim with a specifically designed process to exercise the right to review certain CPS decisions not to start a prosecution or to stop a prosecution.

Conclusion

It is evident that the power and decision to prosecute ought not to, and in fact, does not preclude considerations of complainants' interests in the criminal jurisprudence of Ghana. It is conceded that improvements can be made to the existing regime and it is proposed that considerations be given to some of the more advantageous and well-developed schemes in other common law jurisdictions in the next review of the Code for Prosecutors in Ghana.

[1] See page 4 of P. K. Twumasi “Criminal Law in Ghana” Tema, 1985

[2] See article 88 of the 1992 Constitution of Ghana

[3] It is noteworthy that the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) does not have specific provisions detailing the role of the complainant or his lawyer during a trial.

[4] [1973] 2 GLR 213

[5] [2020] Crim.LR 367

[6] See section 59 of Act

[7] See section 55 of Act 30

[8] [1991] 1 GLR 353

[9] (J5/8/2015) [2015] GHASC 10 (19 February 2015)

[10] See also The Republic v High Court, Ho, Ex Parte Bediako II & Anor (Odum & Ors Interested Parties) [2011] 2 SCGLR 705

[11] [2011] 2 SCGLR 705

[12] (J5/8/2015) [2015] GHASC 10 (19 February 2015)

[13] CASE № D6/278/12 at the Circuit Court

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

[15] For further reading on the role of complainants in India, please see the article by Prabhav Ralli and Meghna Nimbekar titled ‘The complainant’s bit-part in a trial: To “Assist”, not “Lead”’ published on 11 August 2020. Click here to read.

[16] For further reading, click here.

[17] For further reading, click here.

[18] For further reading, click here.