The push for an in absentia trial of former Ghanaian Finance Minister Ken Ofori-Atta has hit a legal roadblock, with experts raising questions about the feasibility of such a trial under Ghanaian law. Lawyer and broadcaster Samson Lardy Anyenini has published a commentary on MyJoyOnline, highlighting the complexities of trying someone who left the country before being charged. Anyenini notes that while Ghanaian law permits trials to proceed without an accused person present, there is no precedent for commencing a trial in absentia where the accused was already abroad before proceedings began.
The debate centers on Article 19(3) of Ghana's Constitution, which makes an accused person's presence at a criminal trial the default rule. The only recognized exception is where the accused, having been "duly notified of the trial," refuses to appear. However, it is unclear whether serving a summons abroad is enough to satisfy this requirement, or if the Special Prosecutor must prove that the summons was actually received. Anyenini argues that this uncertainty is a major obstacle to an in absentia trial.
Anyenini points to the case of Bonsu alias Benjillo v Republic as the closest existing precedent, but argues that it does not resolve the question. In that case, the accused persons had already appeared in court, had their trial begin in their presence, were granted bail, and then absconded. This is materially different from a situation where someone was already outside Ghana when the case was filed and has never set foot in the courtroom.
Ghana's Criminal Procedure Code, specifically Act 30, provides some guidance on trials in absentia. Section 70 allows personal attendance to be dispensed with only in limited, non-felony cases, such as where an accused pleads guilty in writing or appears through counsel. Where that does not apply and someone fails to appear, sections 72 and 167 point first to a warrant for their arrest, not an immediate trial in their absence.
The sequence of events contemplated by the law, according to Anyenini, runs from summons to attendance, then to a warrant if the person fails to show up, and finally to a hearing. Only after a subsequent failure to appear at an adjourned hearing does trial in absentia under section 170 become available. However, an accused who was abroad from the very start, has never pleaded, and has never reached an adjourned hearing does not obviously fit anywhere in that chain.
The stakes of this legal debate are concrete for ordinary Ghanaians following the fate of public funds under the previous administration. If courts eventually rule that an in absentia trial of Ofori-Atta was improperly commenced, years of proceedings and any resulting conviction could be thrown out on procedural grounds, regardless of the underlying facts of the case. Anyenini warns that sections of the media have embraced the "just try him in absentia" position without engaging these nuances.
The commentary also raises a practical scenario with wider implications for how Ghana handles corruption allegedly involving public officials who leave the country. A person accused of serious offences, including corruption involving large sums of public money, could in theory instruct lawyers to conduct an entire defence from abroad while never facing the court personally, and if convicted, remain beyond the reach of any sentence.
Key points
- Ghanaian law may not permit trials in absentia for accused persons who were abroad from the start and never personally appeared in court.
- The debate highlights the need for clarity on the constitutional requirements for trials in absentia.
- The outcome could have significant implications for Ghana's handling of corruption cases involving public officials who leave the country.
