Ghana's legal system does recognise the concept of trial in absentia, but the laws and regulations surrounding it are not well-defined. According to Article 19(3) of the Constitution, presence at a criminal trial is the rule, with exceptions for cases where the accused has been duly notified of the trial but refuses to appear. The process of commencing and conducting a trial in absentia, particularly when the accused is outside Ghana and has never appeared before the trial court, is unclear.
The case of Bonsu alias Benjillo v Republic does not provide a comprehensive answer to the challenges of trial in absentia. In this case, the absentee accused persons knew the charges, had appeared before the court, and had obtained bail before absconding. This scenario is different from that of an accused person who was already abroad when proceedings began and has never appeared before the trial court. The laws governing trial in absentia, specifically Act 30, allow for personal attendance to be dispensed with in certain cases, but the court may require the accused's personal attendance.
Act 30 provides a framework for trial proceedings, including sections 70, 72, and 167, which outline the steps to be taken when an accused person fails to appear. Section 170 allows the court to proceed with a trial in absentia, but this provision has limitations, particularly for felony cases. The law prioritises securing the accused's presence, especially for serious crimes, as a trial in absentia could permit impunity for those with sufficient means to commit crimes and evade punishment.
The process of trial in absentia raises questions about the role of counsel in representing the accused. Can an accused person who has never appeared before the court appoint counsel to conduct their defence while remaining abroad? What is the legal basis and extent of counsel's authority in such a situation? The law does not provide a clear answer, and the Constitution's fair-trial guarantees, including the right to defend oneself personally or by a lawyer of one's choice, must be considered.
The case highlights the need for authoritative clarification on the laws governing trial in absentia. The proposed question of whether a summons ordered to be served outside Ghana constitutes sufficient notification is crucial. The court's decision will have implications for the prosecution of crimes, particularly those involving corruption and serious offences.
Extradition is another aspect that cannot be dismissed as pointless bureaucracy. Bringing the accused physically before the court resolves many of the questions surrounding trial in absentia. The accused receives the charge, appears before the court, takes their plea, and instructs counsel. If they subsequently abscond or refuse to attend after due notification, the constitutional footing for proceeding without them becomes firmer.
The discussion on trial in absentia was initiated by Oliver Barker-Vormawor's article, which highlighted the need for clarity on the laws governing such trials. Samson Lardy Anyenini has added to the discussion, pointing out the nuances of the law and the need for a clear understanding of the process. The issue remains a topic of discussion, with many awaiting the court's decision on the matter.
Key points
- The laws governing trial in absentia in Ghana are unclear, particularly when the accused is abroad.
- The process of commencing and conducting a trial in absentia needs clarification.
- The role of counsel in representing an accused person who has never appeared before the court is uncertain.
