Right to fair trial, access to justice
At the heart of human rights protection and the rule of law is the administration of justice.
The effective realisation depends on the existence of separate, but related factors: the existence of an independent judiciary, effective access to justice and equality of arms (both parties to litigation having equal personnel and resources in the resolution of matters).
I explore an important component to the right to a fair trial (in the criminal context) access to justice and examine its operation and effectiveness within the Ghanaian Legal System.
There can be no doubt as to the existence of the right to a fair trial in International Human Rights Law.
It is provided and recognised in a series of international and regional human rights instruments: Article 10 of the Universal Declaration of Human Rights; Article 14 of the International Covenant on Civil and Political Rights; Article 6 of the European Convention on Human Rights; Article 7 of the African Charter on Human and Peoples Rights.
A crucial component of the right to a fair trial is the right to qualified counsel of one’s choice.
Generally, what this means is that, accused persons must have access to the services of a lawyer who is qualified in the jurisdiction in which they are being tried according to the requirements set out in domestic law.
So in Ghana, the said lawyer must be on the rolls of the lawyers qualified to practice law here.
The right to a lawyer is crucial as the experience of being dragged to court is for most accused persons, unfamiliar and incomprehensible (technical).
The availability of sound legal advice and assistance is thus very necessary and pivotal in the prevention of miscarriages of justice.
Against this backdrop, we explore the scope and existence of the right to counsel in the Ghanaian context. Article 19(2)(e)(f) and (g) come to focus in this analysis.
Article 19 (2) (e) states, “A person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.”
Also, Article 19(2)(f) provides that “A person charged with a criminal offence shall be permitted to defend himself before the court in person or by a lawyer of his choice.”
Further, Article 19 (2) (g) provides “A person charged with a criminal offence shall be afforded facilities to examine in person, or by his lawyer, the witness called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution.”
In a bid to make effective the right to counsel in criminal matters, the government set up the Legal Aid Commission.
Its purpose is to ensure equality of access to justice and treatment before the law by serving as a Public Defender for the poor in need of cost effective justice.
The legal foundation of the Legal Aid System in Ghana can be found in Article 294 of the Constitution and the Court’s Act.
Article 294 (2) of the Constitution states that “Parliament shall regulate the grant of Legal Aid” and Clause 4 of the Article says that Legal Aid shall consist of representation by a lawyer, including all such assistance as shall be provided by a lawyer.
Also Section 114(1) of the Courts Act states (1) The Supreme Court, the Court of Appeal, the High Court or Regional Tribunal may assign a lawyer by way of legal aid to any party, to any proceedings before the Court or Tribunal, where the Court or Tribunal is of the opinion that it is desirable in the interests of justice that the party should have legal aid and that he is financially unable to obtain the services of a lawyer.
The district and circuit courts have the same power but it is subject to the approval of the Chief Justice.
The Legal Aid Commission has detailed its Legal and Advisory Services as: Alternative Dispute Resolution, Legal Representation in all matters civil and criminal, Legal Representation for Juveniles, and Legal Representation in connection with any proceedings relating to the Constitution.
On paper, the services that the Commission are mandated to perform are solid and perfect with regard to the fulfilment of the government’s responsibility in ensuring access to justice but the reality is far from the truth.
My follow-up article will deal with the situation on the ground and proffer recommendations.
The writer is a lawyer.