Nelson Mandela once famously proclaimed that “no-one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”.
Most of us cannot even begin to comprehend what it would be like to spend a day and night locked up in a jail; still less an overcrowded cell which lacks basic sanitation and the amenities necessary for sleeping and eating. The US State Department has described the conditions in Ghana’s prisons as “harsh and often life threatening”. Police stations are often no better.
Twenty-four hours in such conditions would be bad enough, let alone over thirteen years. This was how long a man, never charged with nor convicted of an offence, spent in a cell until CHRI intervened to secure his release. To this day “Eric” (not his real name) claims his innocence. He says he was not, as was originally alleged, a perpetrator of a violence, but rather the victim of an attack who had been forced to act to defend himself. There were no witnesses and he had originally handed himself into the police. The Police Service has lost the case docket so there is no evidence either way. To compound matters the investigating officer has long since been transferred. It appears that in his thirteen years of detention, he was never formally charged (let alone tried) and often missed court appearances due to lack of vehicles or simple disinterestedness on the part of the Police. Indeed, on a number of the occasions when he actually made it to court, his case was not even called.
Eric went into police custody a young gainfully employed member of society with dependents. Upon his release he is a broken middle-aged man, bitter about his treatment and unable to work due to illness.
In a criminal case such as Eric’s there must be a formal charge, trial by jury and verdict and sentencing. The Constitution (Article 14(3)) guarantees that a person who is arrested or detained must either be released or brought before the court within forty-eight hours. Suspects formally charged in court must face trial by a court within a “reasonable amount of time” in accordance with Article 14(4).
As few ordinary people imagine that they will ever end up in a police or prison cell, there is little political or public interest, let alone sympathy, for the plight of those held in custody or on remand. Many question whether such formal processes actually matter. The person was arrested: surely there can there be no smoke without fire?
But due process does matter; the right to a fair trial is a fundamental human right. Those accused of crimes are not sub-human. It is unlawful and against the public interest to take away someone’s liberty for long periods without observing the proper police and court processes. To do so discredits the justice system and has a profound, detrimental economic impact on the individual, his family, community and the state, not least due to the direct costs of keeping a person in jail.
If a person does not have the reason for his arrest and his rights explained to him, that arrest may constitute an unlawful arrest. Similarly, if a person spends more than forty-eight hours in a cell without having been charged or waits for years in jail on remand for his trial to start, this may also be unlawful detention. This is important because under Article 14(5) of the Constitution, a person who is unlawfully arrested or detained has an “enforceable right to compensation”. However, despite a plethora of candidates, there are no reported, successful claims to the Constitutionally-mandated compensation.
There are two reasons why claiming compensation is important. First, and foremost, lengthy incarceration can dramatically change the financial fortunes of a person. In the worst cases, like Eric’s, it can leave someone unemployable, either as a result of physical or psychological illness or due to the cloud of humiliation and suspicion that may forever float above him. Secondly, if former detainees came forward and successfully sought compensation from the state, the Government may be provoked to reform the law and policing practices, improve accountability and invest properly in the criminal justice system to make it more effective and efficient.
The Constitution is clear. If the state violates the rights of its citizens, whether they are suspected criminals or otherwise, it must pay compensation. The central thrust of this argument is not that it is desirable for precious resources to be diverted from Ghana’s social and economic priorities to fund compensation windfalls for those accused of crimes. It is an argument for the Government not violating those rights in the first place.
CHRIS LANE , CHRI, Africa Office