Delays in criminal justice system: Re Denkyira Obuasi 2

Following the conclusion of the trial of 14 people accused of the murder of Major Mahama, the decision was to use the case as a reference point in evaluating the criminal justice system. 

That is because the trial brought to the fore many of the problems bedeviling the criminal justice system.

That inquisition and scrutiny of the criminal justice system began in earnest with last week's article on delay.

Whilst at it, the effect which delays have on the relevant stakeholders will be explored, including delays in freeing acquitted persons after trial.

It is our fervent hope that the authorities, both court registrars and prison officials, collaborate to ensure that those acquitted after trials are swiftly released from prison custody.

The experience of the two persons acquitted in the Mahama trial is instructive in highlighting the problem, as well as finding solutions.

The High Court acquitted them on January 29, 2024, but it took two weeks before they were finally freed from prison custody.

This was a painful and stressful experience for Bismarck Donkor and Bismarck Abanga, especially as they had been incarcerated for well over six years for a crime they had not committed.

Whatever administrative bottlenecks that militated against their swift release from prison custody must be urgently addressed to prevent any recurrence.

Pre-trail detention

Another area worthy of scrutiny is the issue of pre-trial detention.

Personal liberty is one of the most important rights guaranteed by the Constitution; so, any derogation must be justified to the full.

Way back in 1877, Z. W. Staatman had this to say – “Detention is a necessary evil and as long as there is no other measure, it cannot be abolished and the state has a right to employ it.

 But should the individual be made to bear the consequences of this clear example of our institutional imperfection?”

The answer is “no”. 

To achieve a fair balance between the rights of the accused in enjoying his/her right to liberty and the state's right to curb crime, certain legal and procedural safeguards have been put in place.

The procedural safeguards were invented to secure a fair balance.

 Thus, it is a condicio sine qua non for there to be a reasonable suspicion that a person has committed an offence for any detention to be valid.

With confirmation of this reasonable suspicion by actually charging the suspect, the issue of bail comes into sharp focus, given the fundamental nature of personal liberty. 

Essentially, bail ensures that an accused person is present at court whenever the case comes up for hearing.

There is always a presumption in favour of bail except if there is in existence one of the factors for refusing bail.

 These include, but are not limited to, fear of flight, interfering with witnesses and the administration of justice etc.

Throughout the six years that Bismarck Donkor and Abanga were in custody, repeated applications for bail were made on their behalf but they were all refused.

These refusals come into sharp focus following their acquittal, given that the time they had spent behind bars could never be retrieved.

A vital lesson to be learned from this is that judges should, as far as circumstances of a case permit, err on the side of granting bail.

Any refusal of bail should be justified as it is inextricably linked with the concept of presumption of innocence. 

If a court refuses to accord accused persons this fundamental right guaranteed by the Constitution, it runs the risk of having to deal with all the problems that come up when such persons are eventually acquitted at trial.

This is exactly the case of Bismarck Donkor and Bismarck Abanga, who spent the better part of their lives in prison custody for a crime they did not commit.

Whether or not they deserve compensation will be explored in due course.

The writer is a lawyer.

E-mail: georgebshaw1@gmail.com