Innocent Until Proven Guilty: The Case of the Pre-Trial Detainee

It is often said that one can measure the civilisation of a society by the way it treats its prisoners; however, not all those imprisoned have ever been found guilty of committing a crime.

In 2009, 28% of all people detained in Ghana were being in held by what is known as pre-trial detention. This means that the police have arrested the detainee but he or she has not yet appeared before a court. As with any democracy, the firm belief that a person is innocent until proven guilty is essential in the prevention of corruption and abuse of executive power.

The police service is neither a judge nor a jury. It cannot, and does not, decide whether a person is guilty or innocent. Under Ghana’s police code the police may arrest somebody if they have reasonable suspicion that the person has committed a crime; but suspicion, of course, is not the same as guilt.

Unfortunately there is widespread belief in the common idiom of “no smoke without fire.” The problem with this view regards the fact that that an accusation, which could be true but might also be false, is generally directed at the individual. Unless that individual is you or a trusted friend or family member, it is it is all too easy to believe the accused person is simply guilty as charged. If we stop and think for a minute; however, things are not as clear cut as they may first appear.

We have all read the stories about police corruption, yet for some reason we do not equate this with the possibility of unlawful arrest. We acknowledge the current weaknesses of the police service but deem a person charged by the same police service as being guilty of a criminal offence. This does not add up. If a police officer is willing to take a bribe to forget about a traffic offence, it follows that he or she would likely accept a bribe to arrest an innocent person for a crime they did not commit.

Neighbourly disputes over land rights are frequently resolved by such methods. Here there is no come back against the police as the neighbour’s accusation provides evidence of the police officer’s ‘reasonable belief’ in the arrested person’s guilt. It is technically possible for the innocent neighbour to sue the accusing neighbour under civil law for ‘malicious prosecution’ but the practicalities of time and legal costs have meant that, in Ghana at least, this option has never, as yet, been pursued.

Sometimes the crime in question is not even a crime at all. People are often arrested, for example, for not being able to pay a debt and subsequently being charged with theft. A crucial component of the crime of theft is dishonesty, but where is the dishonesty here? Of course, if a person borrows with no intention ever to pay the money back then this can be termed theft as the borrower is clearly dishonest, but if a man loses his job and is forced to default on what he owes, he never had any intention of committing a crime as so cannot be termed dishonest. This colonial relic of locking up debtors has no place in a 20th century legal system let alone a 21^st century one such as ours.

Of course, a false accusation or incorrect charge leading to an arrest should simply be a stressful but ultimately minor inconvenience. If there is not sufficient evidence to alter the presumption of innocence then a court can simply dismiss the case. If the prosecution needs time to attempt to make a case then, so long as the accusation is not of an extremely serious nature (murder, for instance), the court will grant bail to the accused until the next court date. The Constitution states that an arrested person is to be brought before a court within 48 hours thus the options of bail or dismissal become available. The reality; however, is very different.

Spending just 48 hours in a filthy and overcrowded prison cell would be harsh enough for any person, let alone one who has been wrongly arrested. The writer visited one such police station in the Accra area and found over thirty people detained in a small police cell. The temperature was unbearable, the sewage pipe from the toilet was leaking all over the floor, and there was a serious cockroach infestation. Food, water, and healthcare are not provided by the police authorities as the government lacks the will to provide funding in this area. This lack of will stems from a lack of public support for those who are deemed criminals before they are even tried before a court of law.

The constitutionally protected 48 hour time limit is almost never met. A lack of police resources, judicial commitment, legal aid, and political will to change has led to the continuation of an unjust and immoral status quo. In the one police station I visited, I met persons who had been detained for several months without any sort of court hearing. There are many other cases where this unlawful imprisonment can be measured in years, not months, and certainly not in hours.

The criminal justice system exists to protect the innocent as much as to punish the guilty. We must remember that guilt must be proven, and not simply presumed.

Luke Blindell, CHRI Africa

This Article was also published in The Chronicle on the 14/07/2011

An Arresting Dilema: Paying the Price of Responsibility

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

Justice delayed is justice denied

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

Safeguarding the Independence of the Judiciary in Ghana

Ghana’s democracy and judicial independence is the envy of many in Africa, but all this may change if the recent events are anything to go by. 
 

The Accra High Court’s decision to free all 14 suspects who had been indicted for conspiracy to murder the late overlord of Dagbon, Ya Na Yakubu Andani, after His Lordship E. K. Ayebi ruled that the prosecution had failed to establish a prima facie case; has sparked off discontent among some sections of the public and to some extent incensed by politicians.

Just after the delivery of the verdict, some elite in our society, who should not matter, and without reading the full judgement came out with statements to the effect that the bench was partisan or politically biased and that genuine justice could never be expected from such a bench. The president also referred to the decision as a ‘temporary setback’. Before long, there was a demonstration by the Andani youth seeking justice and the Court could not sit because the judges feared for their security and life.

Ghana seems to be on trial for the future of its democracy. Where a judge in the lawful execution of his or her duty is lambasted by politicians for having made a wrong decision; where the judiciary sees itself as being threatened by a possible backlash for lawful execution of its mandate; where courts cease to operate, even if for a day, because the judges feel that their security and well-being is threatened- are clear indications of flouting the principle of independence of the judiciary, which is a key tenet of democracy and which is distinctly enshrined in the 1992 Constitution of Ghana particularly under Chapter 8 of the Constitution.

The judicial arm of government is the ultimate interpreter of the law and at some point enforcer of human rights. In fact the UN Basic Principles on the Independence of the Judiciary recognises the fact that judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. In most cases, they will have to play the role of arbiter between the other arms of government, the legislature and the executive, in its role in interpreting the law and ensuring that justice is upheld.

Given the importance of the role played by the judiciary in any democracy, particularly in the peaceful resolution of conflicts, it is incumbent upon the State or Government to ensure that the independence of the judiciary is respected and observed by all.

Countries that lack independent judiciaries are least likely to be recognized as democracies. Where a judiciary is not independent, the course of justice is adversely affected, leading to a public lack of faith in the Courts- this will have great repercussions on the justice system of the country and the realization of human rights will be, but a myth.

The role of the judiciary is not to bow to the pressures of the public or the government of the day, but rather to dispense justice in an impartial manner, based on facts presented before them and in accordance with the law. In fact as part of the judicial oath, a judge swears to perform their functions without fear or favour, affection or ill-will. Where, then,  either party feels that the judge failed in this regard, there are steps to be followed still within the judicial system to set what may have gone wrong right, if indeed the judge erred in some respect or the other. That is why we have such processes as appeals and reviews.

The matter is not up to ‘politicians’ or members of the public to usurp the powers of the court and try to hijack the judicial process as seen in the behaviour of some citizens on our judicial system.

There are a number of cases waiting to be heard and decided upon by the Courts, most of these cases do affect people’s rights and freedoms, and where Court does not sit even for a day, it is the innocent that suffer;- persons who also are waiting for justice to be done, some have waited for decades ; for some it is a matter of life and death; for some it is their entire future; and without timely dispensation of justice- an injustice is being done to them. What this will likely lead to is lack of faith in the judiciary- this leads to increase in instances as mob justice and a total break down of law and order in the long run. IS THIS THE FUTURE WE ARE SHAPING FOR GHANA?

Rather than blame a case gone bad on the judge, the State which is the prosecuting arm should focus on what went wrong in its processes. How was the matter investigated? Was there enough evidence for prosecution to prove his case? How were the exhibits handled? Was the chain of evidence properly laid before the Court?

If the investigators and prosecutors did a commendable job and the judge failed to properly assess the evidence, then the proper course is to appeal. Even an error by a single judge is no excuse to attack or blame the entire judiciary.

This is the time to pass our test as a country to safeguarding the independence of the judiciary, yes, it is paramount for our democracy but the current trends in Ghana are a big blight on the country’s image. Ghana, the yardstick of Africa over the respect for the rule of Law and the indecency of the judiciary cannot be allow to go back; we all own it a duty to protect this great shining goodwill, no matter ones political colour or affiliations.  

Caroline Nalule
Regional Coordinator
Commonwealth Human Rights Initiative, Africa Office
This is an unedited version of the article “Safeguarding the Independence of the Judiciary in Ghana” written by Caroline Nalule and published in the Ghanaian newspaper, The Daily Guide (19^th of April 2011, p.4.)

What are Human Rights and what is CHRI?

Welcome to the brand new blog for the Commonwealth Human Rights Initiative (CHRI) in Africa. We hope you enjoy reading and discussing our posts as much as we enjoy writing them!

So what are Human Rights, what is CHRI, and what is the purpose of this blog?

Human Rights are set out in the United Nations’ Universal Declaration of Human Rights (UDHR). The thirty articles of the UDHR establish the civil, political, economic, social and cultural rights of people. These rights include the right to life, food and shelter, freedom of expression, the right to not be arrested and detained without being charged and the right to privacy.

CHRI is an independent non-governmental organisation created to ensure the practical realisation of these basic rights in the countries of the Commonwealth. We have been operating since 1987 and have three offices in Delhi, London and Accra.

The Africa office was opened in Accra in 2001 and is at forefront of the fight to uphold basic human freedoms in the region. We work in three main areas of human rights: Human Rights Advocacy; Access to justice and The Right to Information.

The Advocacy programme is involved in bringing to light breaches of human rights in the African members of the Commonwealth and applying pressure for change. One of the biggest feats of the CHRI advocacy team was its involvement and investigation into the case of the extra-judicial disappearances and killings of approximately 50 Africans that took place in the Gambia in 2005. We are currently looking at elections in the region. For example The Gambia, Nigeria, Cameroon, Ghana and Sierra Leone all have presidential elections in 2011/2012 and we hope to ensure that people are allowed “to frame the society in which he or she lives”. This right is set out in the Commonwealth’s Harare Declaration.

The Access to Justice Programme has been involved in monitoring the accessibility of justice to Ghanaians and other Africans nationals in terms of accessibility to the judicial system, especially the right to fair trials. CHRI has also endeavoured to ensure the availability of courts and the provision of legal aid to guarantee the right to fair trial. As part of this programme CHRI have held police workshops and set up Justice Centres.

The CHRI Right to Information Programme is the secretariat of the Coalition on the Right to Information. CHRI understands that the right to information is fundamental to the process of democracy and is working tirelessly to achieve the passing of the Right to Information Bill which would help to create a more transparent and accountable government in Ghana and beyond.

So what is the purpose of this blog? This blog aims to provide an up-to-date civil society perspective of what is going on in the African members of the Commonwealth. It will be a forum for discussion on human rights and the pressing issues for Africans today. We want and need your involvement and comments to help make the Commonwealth a place where human freedoms are adhered to in letter and in spirit.