The concept of trial in absentia, or a trial without the accused present, is recognized in Ghanaian law. However, the specifics of how to conduct such a trial, particularly when the accused is abroad and has never appeared before the court, are unclear. This lack of clarity has raised concerns among legal experts and media practitioners. According to Samson Lardy Anyenini, a legal expert, the law provides for trial in absentia, but the process of commencing and conducting such a trial is not well-defined.
Article 19(3) of the Ghanaian Constitution makes presence at a criminal trial the rule, with exceptions where the accused, having been duly notified, refuses to appear. However, the question remains as to what constitutes "duly notified" of the trial. Is service of a summons abroad sufficient, or must actual receipt be proved? These questions highlight the complexities of applying trial in absentia in Ghana. Anyenini notes that the case of Bonsu alias Benjillo v Republic does not provide a complete answer to these questions, as it involved accused persons who had appeared before the court and subsequently absconded.
The Criminal Procedure Act, 1960 (Act 30), provides some guidance on the process of trial in absentia. Section 70 allows for personal attendance to be dispensed with in specified cases, while sections 72 and 167 provide for a warrant to apprehend and bring the accused before the court if they fail to appear. However, the law seems to prioritize securing the accused's presence rather than immediately proceeding with a trial in absentia. Section 170 of Act 30 permits the court to proceed with a trial in absentia, but only in specific circumstances and excluding felonies.
The law's insistence on personal appearance, particularly for felonies, is rooted in the idea that a criminal trial is not just an intellectual contest between prosecutors and lawyers, but also involves the personal accountability of the accused. Allowing a trial in absentia could permit a person with sufficient means to commit a serious offence, leave the jurisdiction, and engage lawyers to conduct the trial while remaining abroad, potentially escaping punishment. This concern highlights the need for clear rules and guidelines on trial in absentia.
Once a valid trial in absentia is underway, Act 30 provides machinery for its conduct. Section 171 allows the court to enter a plea of not guilty for the absent accused, while section 172 permits prosecution witnesses to be questioned by the accused or their counsel. However, questions remain about the extent of counsel's authority in such a situation, particularly if the accused has never appeared before the court and is abroad.
The issue of trial in absentia has gained attention in the context of calls for the Office of the Special Prosecutor (OSP) to try former Finance Minister Ken Ofori-Atta in absentia. Oliver Barker-Vormawor has argued that the OSP should proceed with a trial in absentia, but Anyenini notes that this approach requires careful consideration of the nuances of Ghanaian law. The lack of clear rules and guidelines on trial in absentia has sparked concerns about the potential for impunity and the need for extradition in certain cases.
The discussion on trial in absentia highlights the need for a comprehensive modern procedural framework for accused persons who remain outside the jurisdiction from the commencement of proceedings to their conclusion. This includes clarifying the rules on notification, arraignment, plea, representation by counsel, cross-examination, defence, conviction, and sentence. Until such a framework is established, the application of trial in absentia in Ghana will remain uncertain.
Key points
- The law on trial in absentia in Ghana is unclear, particularly regarding the process of commencing and conducting a trial when the accused is abroad and has never appeared before the court.
- The lack of clear rules and guidelines on trial in absentia has sparked concerns about the potential for impunity and the need for extradition in certain cases.
- A comprehensive modern procedural framework is needed to clarify the rules on trial in absentia, including notification, arraignment, plea, representation by counsel, and conviction.
