There are occasions when travel teaches lessons that no courtroom textbook or law lecture can quite provide.
My current visit to the United States has been one of those occasions.
As a lawyer who practices both human rights and criminal defence law, I have found myself observing the American criminal justice system with professional curiosity.
While watching Dateline on NBC, I was struck by one of the homicide cases featured: a serious homicide prosecution involving 14 witnesses.
The trial concluded in seven weeks.
This was particularly telling because even though I have participated in criminal trials whilst practising in the United Kingdom and was accustomed to trials concluding fairly quickly, largely due to daily sittings once trial began, my experience of long trials in Ghana has blunted my memory that speedy trials exist elsewhere.
I could not help comparing this seven-week trial with 14 witnesses with the experience of criminal trials in Ghana.
Two trials in particular come to mind: the SSNIT OBS trial and that of those accused of the murder of Major Mahama.
The Major Mahama trial, as far as I can remember, had 15 witnesses but tediously took almost seven years to conclude.
Caveat
As a caveat, let me state at the outset that this comparison is not intended to suggest that every murder trial in America lasts seven weeks. It was also not intended to suggest that the American criminal justice system is better. This is because the two cases are not identical.
Also, American criminal procedure varies from state to state and between state and federal courts.
Complex American prosecutions, as well as those undertaken in the United Kingdom, can themselves take years, but the contrast nevertheless forces uncomfortable questions upon us: when does necessary judicial caution become unreasonable delay?
What can Ghana learn from other jurisdictions with a view to enhancing and fulfilling the international human right of trial within a reasonable time which is guaranteed in our Constitution?
More importantly, at what point does delay itself become an infringement of human rights?
The right to trial within a reasonable time is not an administrative convenience.
It is a fundamental constitutional and international human right.
Article 19 [1] of the 1992 Constitution of Ghana provides that a person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.
Article 14 [4] is even more explicit in protecting persons who have been arrested or detained.
Where an arrested person is not tried within a reasonable time, the Constitution contemplates release, either unconditionally or upon reasonable conditions.
Ghana has also voluntarily undertaken international obligations protecting the same right.
Article 14 [3] [c] of the International Covenant on Civil and Political Rights guarantees an accused person the right to be tried without undue delay.
Further, and closer to home, the African Charter on Human and People’s Rights similarly protects the right to have one’s cause heard within a reasonable time by an impartial court or tribunal.
Principle
The principle is therefore firmly established across Ghana’s constitutional, international and regional human rights obligations.
The question is not whether the rights exist; the question is whether we are giving them meaningful effect.
These pages, in the past, used cases in England as well as the European human rights system to discuss the right to a speedy trial but, given that we are revisiting the issue prompted by an American experience, the focus will be on America.
The Sixth Amendment to the American Constitution guarantees an accused person the right to a speedy and public trial.
The United States Supreme Court in Barker v Wingo developed a balancing test for determining whether the constitutional right to a speedy trial has been violated.
Courts must consider, among other things, the length of the delay, the reason for the delay, whether the accused asserted the right and the prejudice suffered by the accused.
System
The American system also supplements the constitutional guarantee with legislation.
The Federal Speedy Trial Act generally requires a federal criminal trial to commence within 70 days of the relevant triggering event, subject to statutory exclusions and exceptions.
The important lesson we can learn is not the precise number of 70 days; it is the principle behind it.
Why is this? Because a fundamental right must have practical machinery for its enforcement.
It is not enough to proclaim that an accused person has a right to a speedy trial if the system permits a criminal prosecution to drift indefinitely from one adjournment to another without accountability.
The writer is a lawyer.
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