Criminal Procedure in Ghana:
Understanding Criminal Procedure:
Criminal procedure describes the machinery for implementing the criminal law as set out in the Criminal and Other Offences (Procedure) Act, Act 1960 as amended (COOPA).
Whilst there is a recognition that people who commit offences ought to be punished, there is a recognition that only guilty or liable people should be punished.
The criminal procedure actualizes society’s right to see to it that criminals or offenders are punished, and also protects individuals from unjust punishment.
Main Principles of the Criminal Procedure in Ghana:
Accusatorial: A person is accused of committing a crime, and the courts assume that they are innocent of the crime until proven otherwise.Adversarial and not inquisitorial: The judges usually take the submissions by the prosecutor, the entity accusing, and the defendant (the entity maintaining that the accused is innocent.) The court (judge) acts as a reference and has no power to interrogate. However, the judge can ask for clarifications in instances of ambiguity.
Focus of the court: The court in a criminal prosecution can only find a person guilty or innocent of the crime he is being accused of, and not for any other crime on the court’s own initiative.
Offences to Punish: In article 19(11) of the constitution, “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”
Who Can Prosecute? Who can Initiate Criminal Procedure?
The Attorney General: (Exercises prosecutorial powers)
1. Article 88(3) of the 1992 constitution of Ghana provides that “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.”
2. The prosecutorial powers of the AG are usually entrusted to the police who can undertake criminal prosecutions with the AG maintaining control over the prosecution.
3. In addition to the police, the AG can also appoint public prosecutors to prosecute criminal cases on his behalf (see section 56 of Criminal and Other Offences (Procedure) Act, 1960 Act 30).
4. Private individuals can also initiate criminal proceedings with the consent of the AG.
5. When a criminal procedure is initiated by any other person, the Attorney General can take over and continue the criminal procedure.
6. The Attorney General also has the power to discontinue criminal procedure by the entry of nolle prosequi. The AG simply informs the court that the state no longer wishes to continue with the prosecution. When the AG enters nolle prosequi, the accused is only discharged but not acquitted.
Initiating Criminal Proceedings:
There are two ways to initiate criminal proceedings: Through a complaint at the court, and through a charge sheet:
1. Complaint before the Court: a complaint is laid before the court about the violation of the criminal code (go report someone to big daddy lol). The court then issues a summons or an arrest warrant to get the accused to court. Note that a warrant or summons remain valid even if the judge who signed it died or ceases to hold office. The warrant also remains in force until executed or cancelled by the issue court.
2. Through a Charge Sheet Signed by the Police: The charge sheet contains the name, occupation, the charge, the place and time the offence was allegedly committed. This applies where the accused person is already arrested without a warrant.