Ataa Ayi, Asante Agyekum, criminal justice (2)

As can be incontrovertibly established, the name Yaw Asante Agyekum has become synonymous with miscarriage of justice within the annals of criminal justice in Ghana. 

This followed the extraordinary events after the release from prison custody of the gentleman, having served almost 23 years of his life behind bars for a crime he did not commit.

Copious ink has been spilt in print and unquantifiable breath has been exhaled in discussing this regrettable incident on our airwaves already but it is in order, I believe for completeness sake, to situate everything within the context of the overall 'resetting’ agenda of the incumbent government vis-a-vis the criminal justice system.

It is beyond argument that the full gamut of the deep-seated problems currently embedded within the system cannot be effectively and adequately discussed here; nevertheless an attempt, however inadequate, will be made to have a stab at it.

To begin with, the manner of arrest, as detailed by Mr Agyekum in his post-release interviews, clearly leaves much to be desired.

If indeed he was bundled out of church before the eyes of his sick mother and frog-marched in cuffs from Mpraeso to Nkawkaw, then that despicable act must be condemned, while ensuring that it never happens again to any arrested person, to uphold the constitutional principle of the presumption of innocence. 

Arrests have to be civil and the ‘Miranda Rights’ of the accused — right to be told in understandable language of the reason for arrest; the right to be allowed to notify a family member or friend of the police station that one is being held; the right to a lawyer during questioning; the right to bail amongst others — which are all guaranteed, and if we are to pride ourselves as a modern democratic state.

Reasonable time

Another fundamental right of Mr Agyekum which was breached, and still continues to be ignored, is the right to be tried within a reasonable time.

It took eight years before conviction and all that time was while he was in pre-trial detention.

That Mr Agyekum was on remand for eight years was not an isolated aberration, but rather symptomatic of a dysfunctional and illegal system totally at odds with both International Human Rights Law and the Ghanaian Constitution.

Another area worthy of scrutiny and reform is the treatment of ‘confessions’ of accused persons during police interrogations. Mr Agyekum was convicted mainly on the so-called ‘confessions’ of two of his co-accused persons.

There have been many occasions within personal experience where, in my opinion, many accused persons have been convicted unjustly by way of dubious ‘confessions’.

The law has a clearly laid down procedure for the admission of confessions at trial.

Whenever an accused person disputes his ‘confession’, often citing duress, torture, intimidation, beatings as the reason for the ‘confession’, the law demands that a ‘voir dire’ (a mini trial within the main trial) is conducted by the court to ascertain whether the ‘confession’ is genuine. 

In most cases, it is a question of the word of the accused person against that of the policeman doing the questioning. In a majority of cases, the version of the police is accepted by the court over and above that of the accused person and, in some cases, often against clear evidence of torture by way of wounds and scars. 

Independent

The law provides for the presence of ‘independent’ witnesses during the interrogations of suspects at police stations.

Normally, these ‘independent’ witnesses testify that nothing untoward happens during interrogations and almost invariably back the police.

The trouble is that these ‘independent’ witnesses are hardly independent.

A sizeable number are serving police or service personnel at worst and civilians who regularly work with the police, at best.

The solution, as has been canvassed on these pages on countless occasions, is to have police interrogations recorded (audio and video) as obtains in many jurisdictions.

The availability of recorded police interviews would lay to rest the perennial problem of contested confessions.

Given the potency of confessions (it is normally the ‘coup de grace’ in the armoury of police in prosecutions), having them recorded would help promote the integrity of the system. 

Similarly, video recordings of such interviews, as obtains in the UK and other advanced jurisdictions, would serve as a deterrent to police officers who may be tempted to use ‘violence’ to extract confessions.

I will continue to dissect this case in next week’s column to demonstrate the pressing need for reform.

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