The idea that unreasonable delays in obtaining a fair hearing may cause irreparable harm is centuries old. The Magna Carta of 1215, one of the oldest pieces of legislation in the world, declared on behalf of all English people that for all time “To no one will we sell, to no one will we refuse or delay right or justice”. Far too often we seem to be more interested in the first part of that declaration, the “sale” of justice, most recently demonstrated by the accusations of corruption in the judiciary. However the second part, to “delay right or justice”, although perhaps not as sensational for the media, is just as fundamental a problem if not more so.
Delay brings serious consequences for those caught up in the system. It is not only a suspect that has a real and direct interest in the expedition of a trial, the public interest demands it. In Ghana, the right to be brought before a court within 48 hours of arrest, enshrined in the 1992 Constitution, is an example of this right in action. The Constitution similarly guarantees the right of suspects to a trial in a “reasonable amount of time”. This imposes a positive duty on government to sufficiently equip and manage an effective criminal justice system to deliver these rights.
Judges and the court service must put the right to a fair trial at the core of everything they do. It is occasionally difficult to see evidence of this. I illustrate by example. In the Human Rights Court a few days ago a man was due to have a hearing on his writ of habeas corpus, an ancient legal mechanism that allows a person to apply for release from unlawful detention. The right to liberty is fundamental and habeas corpus is therefore among the most urgent petitions a court can be asked to deal with. The man in question has apparently been in police custody for nearly four years. It is not clear that there is any evidence to support the accusations against him and, in any event, he has not been formally charged with a crime. From a lawyer’s perspective it is hard to think of a more straight-forward case for habeas corpus than this.
Perhaps the Court would have agreed. But in fact, despite waiting weeks for a hearing date, the Human Rights Court could not find a judge to hear the case. The judge due to hear the case was out of town, although no parties had been notified in advance. There was apparently no deputy high court judge to hear the day’s list and the case was not added to the list of another judge. Instead, the man returned to his overcrowded police cell to spend yet another month of his life waiting for his hearing.
The police and criminal courts have already let down this man. Now the system, this time in the form of the Human Rights Court of all institutions, has let him down again. The fact that this man’s fundamental liberty is at stake mattered not; all cases that day were adjourned for weeks, without any regard to urgency or severity. Sadly, those involved in the court process will know that this is far from being an isolated incident.
Ghanaians have the right to be treated as innocent until proven guilty by a court. In the 21st century, it is cruel and unfair to allow suspects, whatever they are accused of, to be subjected to excessive periods of time in police custody and on remand in prison waiting for trial. It is an affront to the dignity to which they are entitled as a human. Frankly, it is also a waste of taxpayers’ money. The system must do and be better than that.
It is not just in the criminal area that the justice system needs to work efficiently. Just as significant for Ghana as it marches towards middle-income country status is the system for dealing with civil and family disputes. For every small business which is owed a debt and goes bust whilst waiting years for a court order, the system has let that business down and must do better. For every person who has suffered an injury at the hands of another and needs compensation, but stays at home unable to work for years while seeking relief, we must do better. For the family which finds its land occupied by trespassers and waits weeks or months for an eviction order, we must do better than that.
An effective justice system is not a luxury which only developed countries can afford; it is a fundamental human right. It must be a legal and moral imperative for the state, including the judiciary, to do everything it can to ensure that fair trials for suspects or civil plaintiffs are held as soon as is possible in the circumstances. Unreasonable delay inevitably leads to injustice.
Chris Lane, Access to Justice, CHRI Africa