Over the last two weeks, we have examined why delays in Ghana's criminal justice system are unacceptable.
Today, we will suggest ways to minimise delays before and during trial.
The causes of delay are multiple.
Cases are sometimes adjourned because prosecutors are unavailable.
Defence lawyers may have conflicting commitments.
Witnesses may not attend court.
Jurors may be involved in other cases as the system allows for ‘career’ jurors.
Police sometimes take a long time to finish investigations.
The Attorney General’s advice may take years to be received in some cases.
Disclosure may be incomplete. Judges may be transferred.
The result is a chain in which every institutional weakness adds another link to the delay. What can be done?
First, serious criminal cases should be subject to strict case management conferences immediately after arraignment.
The court should identify the issues, witnesses, exhibits, disclosure requirements and estimated trial duration.
Secondly, trials on commencement should proceed continuously, preferably on consecutive working days, until the evidence is concluded.
Thirdly, adjournment should be treated as an exception rather than the ordinary rhythm of criminal litigation.
Fourth, we must introduce realistic maximum time standards for different categories of criminal cases.
Complex murder cases may require longer periods than straightforward offences but complexity should be demonstrated rather than merely asserted.
Fifth, the courts, the prosecution and the police should leverage technology - digital case management, electronic filing, electronic disclosure, digital recording and transcription.
Sixth, prosecutors and investigators must be adequately resourced.
Seventh, the consequences for unjustified delays should be strengthened.
There must be an effective remedy for excessive delay in the striking out of cases as pertains in some jurisdictions.
A database of case delays and their causes needs to be implemented.
Finally, all stakeholders, Parliament, the Judiciary, the Ghana Police Service, the Attorney General’s Department, the Ghana Prison Service and the Ghana Bar Association should develop a coordinated national strategy for reducing criminal trial delays.
Isolated
The isolated case I watched on American TV does not mean that America has a perfect criminal justice system.
No, but watching a serious homicide case involving 14 witnesses proceed to conclusion in seven weeks was a powerful reminder that criminal justice can be organised around urgency without sacrificing fairness. Ghana does not have to copy America.
We need to take our Constitution seriously and enforce its provisions. We need to promote, respect and enforce human rights.
The seven-week American trial and the almost seven-year Ghanaian experience may represent two very different procedural environments, but they raised the same fundamental question: how much time is too much time when a person’s liberty, reputation and future are at stake?
There can be no universal answer, as some cases may take time to complete, but seven years for a criminal prosecution, as happened in the SNITT OBS trial and the Major Mahama case, should force us to ask difficult questions: Did it have to take that long? Was every adjournment justified?
Could technology have eliminated some of the delays?
Could continuous hearings have brought the cases to conclusion much earlier and most importantly, was the delay compatible with the constitutional promise of a fair hearing within a reasonable time?
Questions
These questions must be asked not because we want to make justice faster at the expense of fairness but because timely justice is in itself an essential component of fairness.
The accused deserve justice.
The victim deserves justice.
The witnesses deserve justice. Society deserves justice.
The Judiciary deserves the confidence of the people.
Seven years is a very long time to wait for justice.
For some people, it is an entire chapter of their lives.
We need to eliminate delays in the system.
Justice must not only be done, but it must also be seen to be done fairly, independently and within a reasonable time.
Ironically, a “Third World War” is brewing in the country over whether the traditional legal break of the year should be sustained.
Intrinsically linked to the debate is the issue of delay.
There have been passionate arguments, powerfully argued and succinctly articulated, on both sides.
While I initially subscribed to the status quo (maintaining the traditional legal break), those of the opposite view have forced me to review my stand.
Delays in the legal system, especially in criminal trials where issues of liberty feature prominently, show how delicate the issue is.
Is the legal vacation consistent with the temporary cessation of criminal trials?
The writer is a lawyer. E-mail:
