Amending our laws to achieve effective and expeditious disposal of cases

On September 15, 2024, 11:01 AM

Introduction
In most financial and economic crime cases such as money laundering, cybercrime, smuggling, corruption, causing financial loss to the State as well as cases on galamsey, robbery, defrauding by false pretence, stealing, forgery of documents, and other organised crimes, the cases may be pending in our courts for months or sometimes even years before they are determined.

The 1992 Constitution provides under Article 19(1) as follows ‘’A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court’’.

However, the Constitution has not defined what time frame will amount to reasonable time.

Therefore, the determination of a reasonable time is always dependent on the circumstances of each case.

Causes of the delay

These delays sometime arise as a result of numerous adjournments and procedural lapses in our Criminal and Other Offences Procedure Act, 1960 (Act 30), the Courts Act, 1993 (Act 459) as amended by the Courts (Amendment) Act, 2002 (Act 620) and the 1992 Constitution.

Some private legal practitioners and State Attorneys rely on these loopholes in our criminal justice system to delay the conclusion of criminal cases for many months and even years.

Some engage in what is commonly termed as legal gymnastics to delay the completion of cases by filing numerous interlocutory appeals and applications.

Our criminal justice system entertains so many adjournments and interlocutory applications. Such as, stay of proceedings pending interlocutory appeal.

Our laws do not have the maximum number of adjournments the prosecution or defence can ask for, before the conclusion of a criminal case.

Some of the delays may also be as a result of the fact, that the hearing of a criminal case may have to start De novo when the trial judge is transferred, retires, dies or resigns and a new judge takes over the continuation of the case.

The current legal position is that the determination, as to whether a criminal case must start De novo, or to have proceedings adopted, when a new judge takes over from another judge, is entirely within the discretion of the new judge.

Again, a defence counsel may raise constitutional issue as to the propriety or the legality of a charge or charges against his client(s). The constitutional issue may be raised before or during the trial. It may be raised before the trial court for reference to the Supreme Court, or before the Supreme Court about a charge or charges which has or have been preferred against an accused person.

Anytime such constitutional issue which calls for interpretation is raised, the proceedings in the substantive case before the trial court has to be stayed pending the determination of the Constitutional issue, by virtue of Article 130 (2) of the Constitution.

The constitutional issue may also be in respect of the procedure the prosecution intends to adopt in the trial of the substantive case. When this happens, the trial court must stay proceedings in the substantive case pending the determination of the constitutional issue before the Supreme Court.

Sometimes, it takes months before the resolution of the constitutional issue before the Supreme Court. And while the constitutional issue is before the Supreme Court, the substantive case will be in abeyance.

Effects of the delay
These delays in some cases scare both foreign and local investors who intend to invest in this country. These delays make some of these investors think that if someone commits a criminal offence against them as victims, it may sometimes take months or years before they can get justice.

In cases like Stealing, fraudulent breach of trust, defrauding by false pretence and falsification of accounts, under sections 124,128,131 and 140 of the Criminal Offences Act, 1960 (Act 29), the victim or the complainant may only be interested in restoration or compensation in most cases.

This may however take months or years before the victim can get it in a situation where the accused person pleads not guilty to the charge or the charges, and the case has to go through full trial.

The delays sometime embolden some people to commit various criminal offences, since they know the trial may not end anytime soon.

Sometimes, complainants, victims and other prosecution witnesses may not even be alive to testify in court because the case might have delayed for months or years or may have to start de novo before a new judge.

In our criminal justice system, if the prosecution cannot get their witness or witnesses to testify on behalf of the Republic, the trial court may be compelled to strike out the case for want of prosecution and discharge the accused person.

These delays sometime lead some people to think, that instant justice should be carried out against suspects which cannot be justified in anyway. It is a cardinal principle in criminal jurisprudence, that justice delayed is justice denied.

Again, Ecclesiastes 8:11 says, “When the sentence for a crime is not quickly carried out, the hearts of the people are filled with schemes to commit crime”

Recommendations
The adoption of the measures below, in my view can be used as a tool to source for funds from International Organizations, Non-Governmental Organizations etc. to help in the fight against Money laundering, cybercrime, Terrorist Financing, Galamsey activities and other organised crimes. This is because, those organizations would be convinced, that people arrested in respect of these serious offences would be tried expeditiously.

The measures can also boost the confidence of investors, both local and foreign in respect of expeditious disposal of criminal cases in situations where they are victims.

To address these challenges in our criminal justice system, I propose the following:
1. If one judge does not conclude the determination of a criminal case and another judge takes over, the proceedings should be adopted for the case to continue in both summary trial and trial on indictment This should be mandatory for the judge and not optional.

Afterall, as to whether an accused person is guilty or not, is generally based on the totality of the prosecution evidence. That is, both oral and or documentary evidence, and not on the demeanour of either the prosecution witness or the defence witness.

Section 80 (2) (a) of the Evidence Act, 1975 (NRCD 232) which is on the use of a witness demeanour to assess the credibility of his evidence is not sacrosanct. A judge might even have forgotten about the demeanour of a witness if a case is to take months or years for it to be concluded.

Section 80 (1) and (2) (a) of NRCD 232 provide as follows:

Attacking or supporting credibility
(1)” Except as otherwise provided by this Act, the Court or jury may, in determining the credibility of a witness, consider a matter which is relevant to prove or disapprove the truthfulness of the testimony of the witness at the trial.
(2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to
(a) the demeanour of the witness;—”

2. The trial of an accused person should proceed from day-to-day until the conclusion of the trial.

3. Where the day-to-day hearing or trial is not practicable for any reason, no party (that is both the prosecution and the defence) should be entitled to more than six adjournments from the day the accused is arraigned before court to the date of final judgment. Therefore, not more than twelve adjournments for both prosecution and the defence.

4. The interval between each adjournment should not exceed ten days, inclusive of weekends and public holidays, whether the accused is on bail or on remand.

5. Where it is not practicable to conclude the trial after the parties have exhausted their six adjournments each, the judge should adjourn the case to another date for continuation.

However, one adjournment to another adjournment should not exceed seven days, inclusive of weekends and public holidays.

6. The trial court should have power to award cost against counsel for either the accused or the Republic or the accused himself or the complainant himself to discourage frivolous adjournments of criminal cases.

7. The hearing of criminal cases pending before High Courts, should proceed during legal vacation either by the same judge or any judge who would sit in that court as a vacation judge.

8. If the vacation judge concludes the hearing, the substantive judge must adopt the proceedings taken during the vacation, in addition to the other proceedings, to write the judgment in the case.

9. The implementation of recommendations 1-8 as listed above, shall lead to the amendment of section 169 (2) of Act 30.

Section 169 of Act 30 provides as follows:
169 Adjournment
(1) “Before or during the hearing of a case, the Court

(a) may adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the parties or their respective counsel then present, and

(b) in the meantime, may suffer the accused to go at large, or may commit the accused to prison, or may release the accused on the entry into a bond with or without sureties, conditioned for the accused person’s appearance at the time and place to which the hearing or further hearing is adjourned.

(2) The adjournment shall not be for more than thirty clear days or if the accused person has been committed to prison, for more than fourteen clear days.

(3) The day following that on which the adjournment is made shall be counted as the first day”.
One can notice, that section 169 (2) of Act 30 only gives the time limit between one adjournment and the other. It does not indicate the number of times a case can be adjourned from commencement to its conclusion.

I therefore recommend that section 169 of Act 30 should be amended to include points 1- 8 as stated above.

Again, Act 30 which regulates the procedure in respect of hearing of criminal cases does not mention legal vacation. The 1992 Constitution which is the supreme law of the land does not mention legal vacation. The Courts Act, 1993 as amended, also does not mention legal vacation.

It is the High Court (Civil Procedure) Rules, 2004 (C. I. 47) which provide for legal vacation under Order 79 rule 4.

Order 79 Rule 4 of C.I 47 provides as follows:
“Subject to rule 1 (1), the following periods shall be observed in the High Court as vacations

(a) the period commencing on the Tuesday immediately following Easter Monday in each year and ending on the Friday immediately following;

(b) the period commencing on 1st August in each year and ending on 30th September in the year; and

However, the Orders and the Rules under C.I 47, apply to civil cases or proceedings only and do not apply to criminal cases. This is captured under Order 1 Rule 1(1) as follows:

Rule 1-Application of Rules
(1) “These Rules shall apply to all civil proceedings in the High Court and the Circuit Court, except that the application by the Circuit Court shall be with such modifications as may be necessary”.

It is therefore my humble view, that the continuation of hearing of criminal cases before the High Courts during legal vacation would not offend Act 30, Act 459 or the 1992 Constitution.

After the plea of an accused person has been taken, he can raise an objection to the validity of the charge against him at any time before judgment.

However, such an objection should only be considered along with the substantive matter and a ruling delivered on it at the time of the delivery of the judgment in the substantive matter.

11. An application for stay of proceedings should not be entertained in any criminal matter.

12. Any party who intends to appeal against interlocutory ruling, must embody same in the substantive appeal at the conclusion of the case.

13. Section 169 of Act 30 should be amended to also include points 10, 11 and 12 as stated above.

14. The implementation of points 10,11 and 12 as listed above would lead to the amendment of Articles 131 (1) and (2),137 and 140(1) of the Constitution and sections 4(1) and (2), and 11 (1) and (2) of Act 459 to exclude interlocutory criminal appeals.

Sections 15 and 21 of Act 459 as amended by sections 2 and 3 of Act 620 should be amended again to exclude interlocutory appeals in criminal cases.

Article 131 (1) and (2) of the Constitution provide as follows:
(1) “An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court-

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or

(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.

(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.

Article 137 of the Constitution provides:

(1) “The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law.

(2) Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.

(3) For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any appeal, and, for the purposes of any other authority expressly or by necessary implication given to the Court of Appeal by this Constitution or any other law, the Court of Appeal shall have all the powers, authority and jurisdiction vested in the court from which the appeal is brought.”

Article 140(1) of the Constitution Provides.

(1) “The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and, in civil and criminal matters and such original, appellate, and other jurisdiction as may be conferred on it by this Constitution or any other law”.
Section 4 (1) and (2) of Act 459 provide:

(4) (1) “An appeal shall lie from a judgment of the Court of appeal to the Supreme Court

(a) as of right in any civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a Judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction;

(b) with the leave of the Court Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest;

(c) as of right, in any cause or matter relating to the issue or refusal of writ or order of habeas corpus, certiorari, mandamus, prohibition or quo warranto.

2) Notwithstanding subsection (1) of this section, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter (including interlocutory matter) civil or criminal and may grant leave accordingly”.

Section 11 (1) and (2) of Act 459 provide:

11.(1) “The Court of appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of the Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and Such other appellate jurisdiction as may be conferred on it by the Constitution or any other law.

(2) Except as otherwise provided in the Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.”

Section 15 of Act 459 as amended by section 2 of Act 620 provides:
(1) Subject to the provisions of the Constitution, the High Court shall have—

(a) an original jurisdiction in all matters;

(b) appellate jurisdiction in a judgment of the Circuit Court in the trial of a criminal case;

(d) jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by the constitution; and

(e) any other jurisdiction conferred by the Constitution, this Act or any other enactment”
Section 21 of Act 459 as amended by section 3 of Act 620 provides as follows:

(1) “The prosecution or a person convicted of an offence in a criminal case, tried by a Circuit Court or tried by a District or Juvenile Court may appeal against the judgment to the High Court.

(2) A person aggrieved by any judgment of a District Court in a civil matter may appeal against the judgment to the High Court.

(3) A person aggrieved by an interlocutory order or decision made or given by a District Court may appeal against the decision or order to the High Court with the leave of the District Court or of the High Court and the High Court shall have jurisdiction to hear and determine the appeal.

(4) An appeal under this section against a judgment of a Circuit, District or a Juvenile Court, shall, subject to any transfer directed by the Chief Justice, be made to the Judge of the High Court exercising jurisdiction over the area of jurisdiction of the Circuit, District or Juvenile Court.

(5) The High Court shall not entertain any appeal unless the appellant has fulfilled all conditions imposed in that behalf by Rules of Court”

15. There should be an amendment to the meaning of the word “judgment” under Article 295(1) of the Constitution and section 117 of Act 459 to exclude interlocutory criminal appeals.
Article 295 (1) of the Constitution provides among other things as follows: In this Constitution, unless the context otherwise requires-
judgment” includes a decision, an order or decree of the court”;

Section 117 (1) of Act 459 provides among other things as follows:
In this Act unless the context otherwise requires-
“judgment” includes a decree, order, decision, or any other finding whatsoever;”

16. Where a question as to the interpretation of a provision in the Constitution of Ghana arises during a trial in a criminal case, the judge before whom the question arose may in his discretion do any of the following:

a) Conclude the trial and postpone the judgment until the question has been decided by the Supreme Court or;

b) Conclude the trial, give his judgment but where the accused is convicted, suspend the passing of the sentence until the question has been determined or;

c) Conclude the trial, give his judgment and where the accused is convicted, pass his sentence but suspend the execution of the sentence until the question has been determined.
In any of the situations as stated under a, b or c, the court in its discretion shall remand the convict or grant him bail depending on the circumstances of the case.

d) Where the decision of the Supreme Court per the interpretation of the constitutional question is to the effect, that the accused should be acquitted, the trial court should proceed to reverse its conviction and sentence and acquit the convict where he has been convicted.

e) Where the decision of the Supreme Court as to the interpretation of the constitutional question is a confirmation of the conviction of the accused, then, the sentence of the convict shall begin in a situation where he is on remand. Where he is on bail, the bail should be rescinded for the sentence to begin after his arrest.

The implementation of point 16 (supra) shall however lead to the amendment of section 3(2) of the Courts Act, 1993 (Act 459) and Article 130(2) of the 1992 Constitution which said article is not an entrenched Article under Article 290 (1) (h). Therefore, the amendment of the said article would not be difficult.
290. (1) “This article applies to the amendment of the following provisions of this Constitution, which are, in this Constitution referred to as “entrenched provisions”-

(h) The Judiciary: articles 125, 127, 129, 145, and 146;”

Section 3 (2) of Act 459 provides:

(2) “Where an issue that relates to a matter or question referred to in subsection (1) of this section arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court”

Article 130(2) of the Constitution also provides:

(2) “Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court”

Conclusion
It is my humble view, that the above recommendations if implemented, can help to achieve effective, efficient, and expeditious disposal of criminal cases especially, galamsey and other organized crimes.

References
1. 1992 Constitution of Ghana
2. Criminal and Other Offences Procedure Act, 1960 (Act 30)
3. Courts Act, 1993 (Act 459)
4. Courts (Amendment) Act, 2002 (Act 620)
5. Criminal Offences Act, 1960 (Act 29)
6. New International Version (NIV) Bible
7. Evidence Act, 1975 (NRCD 323)
8. High Court (Civil Procedure) Rules, 2004 (C.I 47)

Story By Justice Francis Obiri