Ayine – Breath of fresh air for criminal justice?

Because coming events, they say, cast their shadows, the happenings in the criminal justice system, specifically in relation to the acts and rhetoric of the Attorney General, Dr Dominic Ayine, give me abundant hope that my long-held aspirations   may well be fulfilled. 

Ghana will have a transparent, credible, human rights compliant and people-centred criminal justice system that can rival others on the global stage. I dare say these are early days yet in his reign as Attorney General but, as they say in football parlance, “you can only beat what is put before you”. 

If we are to go by this often repeated cliche, then the cameo display of Dr Ayine portends a bright, or should I say ‘orange future’.

The spate of ‘nolle prosequi’ notifications he has brought about and which have drawn opprobrium and hullabaloo in equal measure, are as sound as they come.

I am not oblivious to the ‘violent’ and noisy protestations of a segment of society to the discontinuation of some of these cases — many high profile ones — involving politically exposed individuals, but the truth from an objective analysis of the cases through globally accepted prosecutorial discretion, reveals that none of his decisions can be faulted: they are based on objective use of prosecutorial discretion.

Decision

The decision to prosecute or not is normally based on what is known as the Code for Prosecutors.

It is a document that guides prosecution agencies on which cases ought to be prosecuted. 

It is normally a two-stage process: evidential considerations and public interest considerations.

In navigating the evidential stage, prosecutors are to decide whether there is enough evidence to provide a realistic prospect of securing a conviction. 

Not only must there be sufficient evidence to secure a conviction but that evidence must be scrutinised to ascertain whether it is credible, reliable and, above all, admissible — e.g., a confession obtained by way of oppression or torture may ultimately be declared inadmissible.

If and only when the evidential stage is successfully navigated can the prosecutor then engage the next stage of the process: the public interest stage.

This stage encompasses disparate factors, inter alia, the seriousness of the offence, the level of culpability of the offender, the circumstances of harm caused to the victim, the age and maturity of the accused at the time of the crime, the impact of the crime on the community as a whole, and last but not least, the question of whether the prosecution is a proportionate response.

At an appropriate time, I will, on these pages, dissect the cases which have been discontinued by the Attorney General, to demonstrate how the decisions are unassailable as far as prosecutorial discretion is concerned.

The standard of any credible criminal justice system is measured in how fair the process is — due process and rule of law at all stages along the continuum of prosecution. Have the arrests, detention and questioning of the accused persons been done according to law? 

Perspective

Was the issue of bail properly considered according to the tenets of fair trial? Was there ‘quality of arms’ all the way from arrest to trial?

One cannot help but admire, from a human rights and fair trial principles perspective, these decisions and see a glimpse of hope for the criminal justice system if the initial momentum is maintained.

This is very important and should be analysed in purely legal terms rather than biased partisan approaches, especially as one never knows when one will come into contact with the criminal justice system.

It was quite refreshing to hear the Dr Ayine retort in answer to a question at his recent press conference, “I do not believe in arresting a person and going to look for evidence.”

Sadly and regrettably, this attitude is the norm of criminal prosecutions in Ghana. 

Yours truly has been involved in countless cases where the police have arrested people with little or very scant evidence, charged them and then began to look for evidence to sustain the charges.

Poor ‘innocent souls’ are then held in suspense, sometimes under extreme strain in custody, enduring countless adjournments while the police repeatedly delay the commencement of trial on the pretext of a very nebulous phrase “we are continuing with our investigations.”

The time has come for a holistic root and branch reform of our criminal justice system and, to all intents and purposes, Dr Ayine may be the catalyst of this much-needed reform. The jury (no pun intended) is out. Adieu!

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com