THE ENFORCEMENT OF THE ACCUSED’S RIGHT TO FAIR

TRIAL: THE CASE OF REMAND PRISONERS UNDER THE

CRIMINAL JUSTICE SYSTEM OF GHANA.
BY: SETH ANSONG
LLB (CU), BA. INFORMATION STUDIES (UG)
Abstract
The right to fair trial is a fundamental right that is protected by law against limitation or
derogation. Since criminal proceedings are likely to lead to imprisonment, the trial process
must be fair and just to ensure that only the guilty are convicted and punished. One of the key
safeguards on the right to a fair trial is the requirement that trials are conducted without
unreasonable delays. Although the phrase trial within reasonable time has not been defined
under Ghanaian law (statutes and case law), there are a judicial precedents in other
jurisdictions that provide guidelines as to what amounts to the Constitutional right to fair trial
within reasonable time. This study based was based on a desk research and was aimed at
providing an understanding of the meaning of the right to fair trial within reasonable time by
interrogating judicial interpretation of the right, effect of delay on a case and the remedies of
such delays. The study found that there is no international standard for measuring reasonable
time. The reasonability of delay will depend on a case-by-case basis taking into consideration
various factors such as the complexity of the case, length of the delay, the reasons for the
delay, failure to assert the right to trial within a reasonable time and prejudice to the accused
person. Case law showed that a violation of the Constitutional right to fair trail within
reasonable time attracts a remedy. The remedy for violation of the right to fair trial within
reasonable time varies from jurisdiction to jurisdiction. The courts would consider whether
delay would be prejudicial to the accused. The remedy of stay of proceedings or acquittal
can only be considered by court where it is determined that the breach is so severe that a fair
trial cannot be held. Some recommendations were made to ensure that justice is administered
without unreasonable delay in conformity with Article 19 (1) of the Constitution of Ghana
1992.

Acknowledgement
I would like to express my deep sense gratitude to my supervisor Dr. Isaac Annan, Senior
Lecturer, Central University Faculty of Law, who despite his busy schedule, found time to
guide me. I also wish to thank the Almighty God without whose grace I would not have
completed my LLB Programme.

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1.0. Introduction
A fundamental element of the right to a fair trial is that every person should be presumed
innocent unless and until proven guilty following a fair trial. The presumption of innocence is
one of the most important and ancient rights embodied in criminal justice systems around the
world. In Ghanaian jurisprudence, this presumption is given constitutional force under article
191 of the Constitution, 1992 of the Republic of Ghana which provides that a person charged
with a criminal offence shall be presumed to be innocent until he is proved or has pleaded
guilty.2 Closely related to the right to fair trial is that the accused must be tried within a
reasonable time by a court. This right is an important element of a criminally accused
person’s due process rights. It is one of the basic tenets of our criminal justice system and has
been guaranteed by the Constitution, 1992.3

Although the phrase trial within reasonable time has not been defined by the supreme law of
the land as well as by the Ghanaian courts, it has however been extensively discussed by the
courts in other jurisdictions. In R v Rahey,4 a leading constitutional decision of the Supreme
Court of Canada, the accused challenged a delay of over eleven (11) months on an
application for a directed verdict as violation of the right to a trial within a reasonable time
under section 11(b) of the Canadian Charter. The Court found that there was a violation of
section 11(b) and granted a stay of proceedings. Dickson C.J noted that the purpose of s. 11
(b) of the Charter is to limit the impact of various forms of prejudice to the accused by
circumscribing the time period within which they may occur. In the United Kingdom House
of Lords decision in Attorney General’s Reference No 2 of 2005, Lord Bingham explained the
rationale of the reasonable time requirement as being so that an innocent person could clear
his name and so that a guilty one was not made to wait and suffer too long for justice, with
negative effects for his health and family life.

The United States of America (USA) Supreme Court’s decision in Barker v Wingo6 is also
considered to be a definitive case on this right in American law and is generally taken as a
reference point in many other legal systems. This case established that the factors to consider
in deciding whether there has been a violation of the right to trial within a reasonable time are

1
Article 19 (1) of the Constitution of the Republic of Ghana, 1992
2
Article 19 (1) (c) of the Constitution of the Republic of Ghana, 1992
3
Ibid (n. 1)
4
[1987] 1 S.C.R. 588
5
Attorney General’s Reference No 2 of 2001 (On Appeal from the Court of Appeal (Criminal Division)
[2003] UKHL 68.
6
407 U.S. 514 (1972)

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the length of the delay, the reasons for the delay, failure to assert the right to trial within a
reasonable time and prejudice to the accused person. While different jurisdictions may differ
in the particulars of their approach, depending on various considerations, the factors set out in
Barker (supra) or variations thereof are generally taken into account when deciding whether
there has been a violation of the right to trial within a reasonable time.

The issue of alleged violation of the rights of individuals who are detained for a long time
before trial and during the course of trial has become phenomenal and has raised global
concern. In Ghana, this is seen in the case of remand prisoners. Remand prisoners are inmates
whose cases have not been determined by the law court. These persons simply have not been
convicted and are therefore awaiting the courts to determine their fates by either acquittal or
imprisonment. According to a news report,7 the Ghana Prison Service revealed that although
the forty-three (43) prisons in the country are to hold a total of 9,875 prisoners, they are
currently holding 13,685 prisoners, out of which the convict population was 11,390 while
those on remand were 2,295.

The prolonged deprivation of personal liberty through imprisonment of persons who have not
been proven guilty is one of the biggest setbacks to Ghana’s democratic credentials. Keeping
a person in custody when he or she is still presumed innocent should be of grave concern to
the courts in particular and to the country at large. One of the serious offences a state can
commit against her citizens is to deprive them of their liberty unjustifiably. The challenge of
growing numbers of remand prisoners makes it imperative to have criminal trials conducted
within a reasonable time. Ghana, in its bid to eliminate the abuse of human rights
unfortunately continues to keep suspects on remand for a long period which, in itself, is one
of the infringements against the fundamental human rights of remand prisoners. The high rate
of remand prisoners with some staying on remand for nearly ten (10) years has continuously
been a cause of concern due to the rampant overcrowding of the prisons. The long stay in the
prisons without any conviction has also been a worry since it violates the human rights of
those concerned.

7
Prisons overcrowded by 3,810 inmates –Ghana Prisons Service. Sunday 8th October 2016
<http://www.citifmonline.com.gh> Accessed 06th April 2017.

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2.0. Statement of problem
Ghana is a democratic country. Its Constitution guarantees fundamental human rights.8 The
right of the accused to be given a fair trial within a reasonable time is one that is enshrined in
the Constitution. Its full realisation will therefore go a long way in promoting the aspirations
of Ghanaians of a timely, efficient and effective dispute resolution.

In Ghana, article 19 (1) of the Constitution of Ghana, 1992 provides that a person charged
with a criminal offence shall be given a fair hearing within a reasonable time by a court.
However, the criminal justice system is most often inundated with several postponements or
adjournments most often at the instance of the state attorneys and which are granted to the
state during criminal proceedings, which go on for months or sometimes even years. As a
result, the accused is put on remand for several years.9 This, in turn, is a violation of the right
to a trial within a reasonable time contrary to what article 19 (1) of the Constitution, 1992
provides.

Delayed trials are a major cause of long periods of incarceration of an accused. The long stay
in prisons without any conviction violates the human rights of those concerned. Emphasis
will be placed in this research on the impact that trials which are not conducted and finalised
within a reasonable time have on the rights of an accused and the remedies available to such
persons.

3.0. Aim/Objective of the Research

The objectives of this research are as follows:
 To analyse the judicial interpretation of the right to fair trial without unreasonable
delay.
 To interrogate the meaning and interpretation of the term reasonable time as used in
Article 19 (1) of the Constitution, 1992 with a view to giving effect to this right, the
effect of such delays on the rights of the accused and the remedies adopted by the
courts in that regard.

8
Article 12 – 33 (Chapter 5) of the Constitution of the Republic of Ghana, 1992.
9
Akuamoah, S.A., (2012), The Justice for All Programme, Its Impact on Ghana’s Prisons System: A Case
Study of Remand Prisoners at the Nsawam Medium Security Prison. University of Ghana.

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4.0. Methodology
The study would rely on both primary and secondary sources of data. Primary data included
interviews with some key informants, case law and statutes. The key informants for this study
included the Director of the Legal Aid Scheme, Head of Criminal Records at the Ghana
Prisons Service (Headquarters), Assistant State Attorney from the Attorney’s General
Department and a Police Officer from the Ghana Police Service. Secondary data included
books, articles, journals, conference papers, reports and information from the internet on the
right to fair trial with specific focus on the right to trial within reasonable time.

The research was conducted by comparatively examining Ghanaian sources of law such as
the Constitution, 1992, with that of other jurisdictions and international instruments that have
provisions couched in the same terms as the provisions of Articles 19 (1) of the Ghanaian
Constitution, 1992.

5.0. Literature Review

5.1. The Right to Fair Trial within Reasonable Time
Despite its existence and recognition at international, regional and national level, there is no
agreed definition of what constitutes the right to fair trial. Ouguergouz10 discusses that the
concept of the right to a fair trial is inevitably bound up with the concept of justice. He notes
that there appears to be no definition of the right to fair trial either in the international
instruments which recognise it or in the case law of the international bodies protecting these
instruments.

Halstead11 takes the view that is it possible to have a fair trial despite flaws in the procedure.
He notes that there are circumstances where a conviction can be upheld even though some
principles of the right to a fair trial have been violated. This view has created a gap since
these principles are aimed at ensuring that no party is disadvantaged by having a right
violated. Any violation is likely to give an advantage in favour of the violator. This will more
often than not, affect the fairness of trial. Kameri-Mbote and Akech12 pointed out that some
courts have taken the view that any violation of the right to fair trial, even at the pre – trial

10
Ouguergouz, F., (2002), The African Charter on Human and People‘s Rights; A Comprehensive Agenda for
Human Dignity and Sustainable Democracy in Africa. The Hague: MartinusNijhoff Publishers.
11
Halstead, P., (2009), Unlocking Human Rights. London: Hodder Education.
12
Kameri –Mbote, P.K., and Akech, M., Kenya: Justice Sector and the rule of law. Johannesburg; Open
Society Initiative for Eastern Africa <http://www.ielrc.org/content/a1104.pdf> Accessed 13th April 2017.

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stage, is fundamental and affects the validity of the entire proceedings. This entitles an
accused to be acquitted.

Chadambuka13 analyses co-relation between the seriousness of an offence with which an

accused is charged vis a vis the right to a fair trial within a reasonable time. She argues that
where there is an inordinate delay in trial, the court should be more willing to find a violation
of the right to trial within a reasonable time in cases where an accused person is charged with
a serious offence than where the charge is minor.14 Seriousness of the crime relates to the
gravity of the alleged criminal wrongdoing and how heavy the possible penalties can be if
one is found guilty. She bases the right to speedy trial on seriousness of offence.

The right is enshrined in the constitutions and laws of many nations and is also found in
numerous international instruments. It is no surprise, then, that the right to a trial within a
reasonable time has been guaranteed in international law.15 Ghana is a signatory to a number
of these international treaties and covenants and therefore is legally bound to the provisions
of international instruments such as the International Covenant on Civil and Political Rights
(ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR).16 The ICCPR
was ratified by Ghana on 7th September, 2000 but came into effect on 7th December, 200017
whilst the ACHPR was ratified on 24th January, 1989.18

Ried19 explores the concept of right to have a fair trial without unreasonable delay. She
observes that the reasonableness of the length of proceedings should be assessed in light of
particular circumstances of a case, regard being had to three factors: the complexity of the
case; the conduct of an applicant; and the conduct of state authorities. The period to be taken
into account in determining the duration of a case, starts from the time a formal charge is
brought against an accused until the charge is finally determined or when the sentenced

13
Chadambuka, Z., (2012), Serious Offences and the Right to Trial within a Reasonable Time, 9
Essex Human Rights Review 1.
14
Ibid (n. 13)
15
Farrell, B., (2005) The Right to a Speedy Trial before International Criminal Tribunals, 19 SAJHR 98,
Page 3.
16
International Covenant on Civil and Political Rights (ICCPR). Adopted by the General Assembly of the
United. Nations on 19 December 1966. Available at https://treaties.un.org/doc/publication/unts/.../volume-
999-i-14668-english.pdf:African Charter of Human and People’s Rights (also known as the Banjul Charter)
adopted June 27, 1981, entered into force on October 21. available at
http://www1.umn.edu/humanrts/instree/z1afchar.html (Accessed on 16th April 2017)
17
http://www.ohchr.org/Documents/Issues/HRIndicators/Ratification/Status_ICCPR.pdf.
18
http://www.achpr.org/instruments/achpr/ratification/. Accessed on 16th April 2017)
19
Karen, R., (1998), APractitioner’s Guide to the European Convention on Human Rights. London: Sweet
& Maxwell.

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imposed becomes final. This may be the date of the last appeal or issuing of judgment. In
cases where a challenge is brought in ongoing proceedings, the period which has already
elapsed since the laying of the formal charge should be considered. This period should
exclude any periods which an accused absconds during proceedings.

On the issue of complexity, she observes that factors which should be taken into account
while analysing this concept include the subject matter of the case, the number of disputed
facts, international elements in a trial, the number of witnesses or volume of evidence to be
considered. This should, however, be balanced against the general principle of securing
proper administration of justice by ensuring that trials are heard and determined
expeditiously. With regard to the conduct of parties, she argues that only delays which are
attributable to the State may justify a finding of failure to comply with the reasonable time
rule.

Bakayana20 discusses the right to a speedy trial by the Uganda Human Rights Commission
(UHRC), a human rights institution in Uganda mandated to protect and promote human
rights. The right to fair hearing is one of the key rights enshrined by the Constitution of the
Republic of Uganda, 1995. Bakayana discusses the right to speedy trial as a safeguard to a
fair trial. He analyses the key challenges that Uganda Human Rights Commission faces in
promoting the right to a speedy trial. These challenges include legal dilemmas such as lack of
legislative anchoring, limited staff for the tribunals, unlimited adjournments, financial
constraints and duplication of various human rights institution.21

5.2. Remand Prisoner

A remand prisoner is defined as a person who has not been sentenced to imprisonment but is
held in custody pending determination of guilt or innocence or determination of sentence
after conviction.22 They are an important group as far as human rights are concerned. The
issue of remand prisoners and violations of their rights is not a recent phenomenon. As
pointed out by scholars,23 detention (i.e. keeping offenders in custody in order to determine
their fate) and imprisonment existed in Africa centuries before the birth of the modern form

20
Isaac, B., (2006), From Protection to Violation? Analyzing the Right to a Speedy Trial at the Uganda
Human Rights Commission, 2 HURIPEC Working Paper.
21
Ibid (n. 20)
22
Casale, S. G S., & Plotnikoff, J., (1990), Regimes for Remand Prisoners, Prison Reform Trust.
23
Ibid (n. 22)

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of imprisonment where a suspect is tried to establish the person’s innocence or guilt before
imprisonment.

One of the areas that has been the focus of scholars and policy makers is the conditions under
which prisoners as well as remand prisoners live, and the kind of treatment being meted out
to them. In this light, several bodies (international and regional) have been set up to enforce
the standards laid down by the United Nations (UN) and other regional bodies. These bodies
include: The European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment or shortly Committee for the Prevention of Torture (CPT), Inter-
American Commission on Human Rights, and African Commission on Human and Peoples’
Rights (ACHPR).

The fundamental reasons for remanding individuals in custody in the view of David Bamford
et.al24 are to ensure that remandees will attend court as required to answer the charges made
against them. In addition, the need to protect the integrity of the justice system has resulted in
the development of the practice of remanding accused persons in custody where it is deemed
necessary to protect witnesses. Many jurisdictions also remand a person in custody on
occasions when it is seen to be necessary to ensure the safety of the accused person. Apart
from the above outlined factors justifying remand, there are other reasons which have been
argued out. Morgan25 argues that remanding individuals serve to provide them with “a taste
of imprisonment”, yet presumed not to be part of the rationale for remands into custody.

Another significant area that has been underscored in the literature is the issue of merging of
remand prisoners and convicted prisoners. Edudzi Ofori and Chelsea Paradis in a research
entitled “Prisoner’s Right in Ghana” found out that the rights of remand prisoners are
violated. The facility intended to hold remand prisoners only, however, with the overflow of
prisoners in the system, also houses some convicted prisoners. Likewise “a medium security
prison (Nsawam) that is not supposed to house remand prisoners does hold some”. They
added that what is most unfortunate is that most of the prisons in Ghana are composed of
inmates who are awaiting trial (remand prisoners) and this has tended to compound the
overcrowding situations in detention and prison centers.

24
Bamford, D. S., Sue, K., and David, B., Remand in Custody: Critical Factors and Key Issues Trends &
Issues in Crime and Criminal Justice, No.310. http://www.pretrial.org. Accessed 17th May 2017.
25
Morgan, R., (1989), Remands in Custody: Problems and Prospects, Criminal Law Review. Pp. 481-92.

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In Ghana, the Justice for All Programme, an initiative of the Ministry of Justice and Attorney
General’s Department was introduced in the year 2007 to help promote access to justice and
for speedy trial of cases of remand prisoners. The programme was also designed to reduce the
congestion in Ghana’s prisons. Challenges of access to justice in Ghana, has resulted in the
rising numbers of remand cases in the prisons and this has necessitated the introduction of the
Justice for All Programme.26 A study, Justice for All Programme and its impact on Ghana’s
Prisons System27 concluded that the Justice for All Programme has helped to decongest the
prisons to some extent because some of the remand prisoners who accessed justice through
the programme were acquitted and discharged. The programme has therefore impacted
positively on the lives of remand prisoners in particular and the Ghanaian justice delivery
system in general. This has brought some level of relief to the general prisons
administration.28

Clare Ballad29 in discussing two important constitutional provisions (i.e. the right to freedom
and security of a person and the right to have one’s trial begin and conclude without
unreasonable delay) relating to remand prisons in South Africa observed that the excessive
use of remand has two central issues: overcrowding and the lengthy duration of detention
which many remandees are compelled to endure. Almost all detention centres and prisons in
Africa are overcrowded according to a report published by the African Commission on
Human and Peoples' Rights (ACHPR).30

Issues of bail and remand in custody have attracted the attention of a wide range of observers
in the criminal justice system. It is only in recent years that there has been a collective effort
to study and to reform the law. Most of the available literature came about as a result of
efforts by governments to reform the law on bail. A complex legal situation has emerged as
an outcome of the mix in common law and statutory provisions. USA and the United
Kingdom began significant bail law reform in the 1960s, leading to legislative amendments
with the Bail Reform Acts, 1966 and 1984 in USA and to the Criminal Justice Act, 1967 and

26
Short, E., (2012), The Quest for Governmental Accountability and Responsiveness in Ghana: A Shared
Responsibility for Civil Society, the Private Sector and Government; Ghana Centre for Democratic
Development (CDD).
27
Akuamoah, S.A., (2012), The Justice for All Programme, Its Impact on Ghana’s Prisons System: A Case
Study of Remand Prisoners at the Nsawam Medium Security Prison. University of Ghana.
28
Ibid (n. 27)
29
Ballard, C., (2011) http://www.communitylawcentre.org.za/about-us/our-team/civil-society-prison- reform-
initiative/clare-ballard.
30
Annie, B.C., (2008). Criminal Justice System in Sierra Leone; Prison Watch for Criminal Justice System.
www.africanreview.org/docs/sierrapaper27112008.pdf. Sept. 2009. Accessed 17th May 2017.

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the Bail Act, 1976 in England. In Ghana, the Supreme Court in the case of Martin Kpebu v
Attorney-General31 declared as unconstitutional the law that bars persons accused of certain
offences from being granted bail. The apex court in a 5-2 majority decision held that section
96 (7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), was
unconstitutional because it “was inconsistent with Article 19 (2) (c) of the 1992 Constitution
and, therefore, null, void and of no effect”. As a result of the decision, any court that has
jurisdiction over the stated offences has the discretion to either grant bail or not and also set
the appropriate bail conditions.

6.0. Analysis
Article 19 (1) of the Constitution of the Republic of Ghana states that persons charged with a
criminal offence shall be given a fair hearing within a reasonable time by a court. The
Ghanaian Constitution further provides that a detainee who has not been tried within a
reasonable time shall be released either unconditionally or subject to conditions necessary to
ensure that the person appears in court at a later date. Despite these legal provisions, delays
have become a routine reality in the judicial process, denying detainees their fair trial rights
in many cases.32

The criminal justice system in Ghana has avoided blame for the delay in prosecuting cases.33
The Judicial Service has denied accusations that are in process with regard to the prosecution
of criminals, saying it is the responsibility of the Attorney-General’s Department and the
Ghanaian Police Department.34 Furthermore, they have attributed the adjournment of cases
to the inability of the prosecution to produce witnesses.35 However, the Attorney-General’s
Department has blamed the delay in the prosecution of cases on the police for being slow in
submitting dockets and not on the prosecution division side.36 The police describe the delays
as inadequate staff, unwillingness of complaints and witnesses to collaborate, corruption and
use of extensive and exhaustive investigative techniques.37 The blame shifting is a reflection
of a serious lack of coordination among the law enforcement actors.38

31
[2016] SC No. J1/13/2015 (Unreported)
32
Gubrie, R., (2013), Excessive Delay of Cases: A Violation of the Right to Fair Trial. Access to Justice.
CHRI- McMohan, M., (2014), What is Foreign Jurisdiction? Available at: http://wisegeek.com (Accessed
on 3rd May 2017).
33
Ibid (n. 32)
34
Ibid (n. 32)
35
Ibid (n. 32)
36
Ibid (n. 32)
37
Ibid (n. 32)
38
Ibid (n. 32)

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In an interview with the Director of Legal Aid Scheme39, he indicated that the court
procedures are cumbersome with frequent adjournments which he identified as structurally
causing delays in justice delivery. He also noted that the lack of logistics such as vehicles,
recording equipment by the Police Service were also said to be causing delays in justice
dispensation. Individuals whom he identified as causing the delays were the Criminal
Investigation Department (CID) officers of the Ghana Police Service and Court Registrars.
He mentioned that the Justice for All Programme has really helped to decongest the prisons
but also said that the Justice for All Programme should not be spearheaded by the Attorney
General’s Department but should be a key job for Commission on Human Rights and
Administrative Justice (CHRAJ) and the Legal Aid Scheme.

The Head of Criminal Records at the Ghana Prisons Service (Headquarters) during his
interview session40 mentioned the following as ways in which the delays affect prison
administration: congestion in the cells, creating overcrowding in the accommodation of
inmates; undue pressure on prison facilities; increased risk in the work of prison officers;
affects the budget of the police administration, especially the fuel bill, feeding, waste
management and medical services; and the prisoner-prisoner officer ratio is also affected
badly.

An Assistant State Attorney on her part during the interview41 noted that there were delays in
access to justice in Ghana. She blamed the delay in the prosecution of cases on the police for
being slow in submitting dockets and not on the prosecution division side. She corroborated
the information given by the Head of Criminal Record interviewed by the author on the
effects of the delays who said that the delay in accessing justice has negative effects on prison
administration.

The Police Officer who was interviewed42 for this research also indicated that the constant
breakdown of vehicles as a result of extreme pressure and inadequate budget to provide fuel
for official vehicles makes it difficult to present suspects before the court when their court
dates are due. He noted that rigid legal regimes and unnecessary bureaucratic bottlenecks as

39
Interview conducted on Monday, 13th March, 2017.
40
Interview conducted on Wednesday, 5th April, 2017.
41
Interview conducted on Tuesday, 11th April, 2017.
42
Interview conducted on Thursday, 20th April, 2017.

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structural barriers to fair trial within reasonable time. He was of the view that the lack of
alternative sentencing was also a factor of delay.

Article 19 (1) of the Ghanaian Constitution, 1992 expressly requires that hearings take place
within a reasonable time. The International Covenant on Civil and Political Rights (ICCPR)43
to which Ghana is a state party speaks of expeditious hearings.44 In the case of Fillastre,
Bizouarn v. Bolivia,45 the Human Rights Committee held that:
under Article 9 (3) of ICCPR anyone arrested or detained on a criminal charge
"shall be entitled to trial within a reasonable time".What constitutes "reasonable
time" is a matter of assessment for each particular case. The lack of adequate
budgetary appropriations for the administration of criminal justice alluded to by the
State party does not justify unreasonable delays in the adjudication of criminal cases.
(Emphasis added)

Furthermore, in the case of Shalto v Trinidad and Tobag,46 the Committee concluded that a
delay of almost four years between the judgement of the Court of Appeal and the beginning
of the retrial, a period during which the accused was kept in detention, cannot be deemed
compatible with the provisions of article 9, paragraph 3 of the Covenant in the absence of any
explanations from the State party justifying the delay.

Also, Section 11 of the Canadian Charter47 provides that a person who is charged with an
offence has the right to be tried within a reasonable time. In the case of R v Askov,48 where
the appellants moved to stay the proceedings on the ground that the trial had been unreasonably
delayed, the Canadian Supreme Court laid down four factors to determine “reasonable time”,
namely: (1) the length of the delay; (2) the explanation for the delay; (3) waiver; and (4)
prejudice to the accused. The Supreme Court of Canada held that the first factor was the
triggering mechanism or threshold determination of the excessiveness of the delay and that, if
that delay appeared prima facie excessive, the court was then obliged to consider the three
remaining factors to determine whether the accused had been deprived of the Sixth
Amendment. In Canada, the burden is on the applicant to prove a breach of section 11(b) of

43
International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United.
Nations on 19 December 1966
44
Article 9 (3) of International Covenant on Civil and Political Rights (ICCPR)
45
Communication No. 336/1988, U.N. Doc. CCPR/C/43/D/336/1988 at 96 (1991)
46
UN doc. GAOR, A/50/40 (vol. II), p. 19, para. 7.2.
47
Canadian Charter of Rights and Freedoms, Constitution Act, 1982
48
[1990] 2 S.C.R. 1199

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the Charter.49 The Crown has the burden of proving any waiver of rights.50 The applicant
must first establish that the period raises the issue of “reasonableness”. 51 These standards
have been followed by superior and constitutional courts in a number of jurisdictions,
including Zimbabwe and Namibia.52

In the Zimbabwean case of In Re Mlambo,53 in determining whether the rights of the accused
to trial within a reasonable time had been violated, Gubbay CJ followed the factors laid down
in the Askov case and stated that additional evidence would have to be established to
determine violation of human rights. He stated the following:

I have no hesitation in holding that the time frame is designed to relate far more to
the period prior to the commencement of the hearing or trial than to whatever period
may elapse after the accused has tendered a plea. This meaning is wholly consonant
with the rationale of s18(2) – that the charge from which the reasonable time enquiry
begins, must correspond with the start of the impairment of the individual’s interest in
the liberty and security of his person. The concept of “security” is not restricted to
physical integrity, but includes stigmatisation, loss of privacy, anxiety, [and]
disruption of family, social life and work.
I may say that this view accords with the interpretation given to the materially similar
wording of Article 6 para 1 of the European Convention by the European Courts of
Human Rights.

In Australia, the Supreme Court in the case of R v Mills,54 delivered a judgment which dealt
with the right to a fair trial in criminal proceedings, with particular focus on circumstances
that may constitute an unreasonable delay. Higgins CJ said that a delay of two and a half
years from the first trial, in a relatively simple case is egregiously unreasonable, irrespective
of the reason it might happen. The Court relied on the decision in R v Upton,55 stating that the
relevant test is one of proportionality. The relevant factors to be considered by the Court in
the Mills case were: the length of the delay; reasons for the delay, Mills timely assertion of
the right in question; and possible prejudice.

49
R v Morin (1992) 1 SCR 77, paragraph 5
50
R v C.S.1999 CanLII 18948 (NL CA), paragraph 9
51
Ibid (n. 50)
52
In Re Mlambo 1991 (2) ZLR 339 (S), S v Tau 1997 (1) ZLR 93 (H) & S v Heidenreich 1996 (2) BCLR 197
53
1991 (2) ZLR 339 (SC)
54
ACTSC 109 (1 July 2011)
55
[2005] ACTSC 52

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In USA, the Sixth Amendment ensures that in all criminal prosecutions, the accused shall
enjoy the right to a speedy trial. The USA Supreme Court considered the issue in Barker
(supra). Powell J sets the test for infringement of the right to a “speedy” trial as length of the
delay, the reasons for the delay, failure to assert the right to trial within a reasonable time, and
prejudice to the accused person to be key factors to determine violation of right to trial within
reasonable time. The USA Supreme Court’s decision in Barker is considered to be the
classical case on the right to a speedy trial in American law and is generally taken as a
reference point in many other legal systems. This criterion has been adopted by Kenyan
courts in determining the issue of what constitutes reasonable time under Article 50 (2) (e) of
the Constitution of Kenya, 2010. In the case of John Njoroge Chege v Director of Public
Prosecutions56 the court held that in determining whether the right to a fair trial without
unreasonable delay has been violated, the court must consider all relevant factors within the
context of the whole proceedings.

Article (12) (1) (b) of the Constitution of the Republic of Namibia provides that a trial must
take place within a reasonable time, failing which the accused shall be released. The term
reasonable time is not defined in the Constitution. In State v Strowitzki and Another57 the
Supreme Court of Namibia summed up the factors to be considered in deciding when “long is
too long” as length of delay; waiver of time periods; the reasons for the delay (inherent time
requirements of the case; actions by the accused; actions of the Crown; limits on institutional
resources; the reasons for the delay; and prejudice to the accused).

6.1. Appropriate Remedy

What happens when a court rules that the accused‘s right to a have a speedy trial has been
violated? The next step is to identify an appropriate remedy. Article 33 (1) of the Constitution
of Ghana, 1992 grants the High Court the power to grant appropriate remedy in the event
any violation of human rights are proven.

In Canada, where there is a breach of this right, the available remedy to a court is a stay of
proceedings.58 This was seen in the case of R v Rahey.59 The Court in the Rahey case

56
[2012] eKLR Criminal case 28 of 2011
57
1995 (1) SACR 414(Nm)
58
McMohan, M., (2014) What is foreign jurisdiction? page 1, available at: http://wisegeek.com.
(Accessed on 3rdMay 2017).

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emphasised that any further action in the matter would only exacerbate the violation as it
would amount to a trial outside a reasonable time.60 This is also the practice in countries such
as Canada, USA and Zimbabwe. It is evident that the Canadian judicial system acknowledges
the right to a trial within a reasonable time and has endorsed it in its Charter of Rights. The
judiciary is seen to be enforcing this right in cases as it is evident in the Rahey case.

In Strunk v United States,61 the Supreme Court of USA ruled that if the reviewing court finds
that a defendant’s right to a speedy trial was violated, then the indictment must be dismissed
and/or the conviction overturned. The Court in the Strunk case held that since the delayed
trial is State action which violates the defendant’s rights, no other remedy would be
appropriate.62 Thus, a reversal of a criminal case on speedy trial grounds means no further
prosecution for the alleged offence can take place.63

In the case of Darmalingum v State,64 the Privy Council held that the normal remedy for a
failure of reasonable time guarantee is to quash a conviction which was also the remedy for
breach for fair hearing and independent and impartial court guarantees. Lord Steyn held:
The constitutional right of a defendant to have his case tried within a reasonable time
applied not just to the initial trial but also to any appeal arising from that trial. Where
there had been inordinate and inexcusable delay between the suspects’ first arrest
and his trial, and also after trial and before the hearing of his appeal should properly
lead to the conviction being overturned.

In Flowers v The Queen,65 the Privy Council distinguished Darmalingum and said that an
appellate court is entitled, in public interest to take into account the fact that defendant is
guilty of a serious crime in deciding whether to quash the conviction for infringement of right
to trial within a reasonable time. In Martin v Tuarang,66 Richardson J held that the choice of
remedies should be directed to the values underlying a particular right. The remedy or
remedies granted should be proportional to the particular breach and should have regard to

59
Ibid (n. 4)
60
Ibid (n. 59)
61
412 U.S. (1973).
62
Ibid (n. 61) paragraph 2.
63
Ibid (n. 61) paragraph 3.
64
(Mauritius) [2000] UKPC 30
65
[2000] 1 WLR 2396
66
[1995] 2 LRC 788

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other aspects of public interest. In this case the indictments were stayed for breach of the
right to be tried within reasonable time.

In Julius Kamau Mbugua v Republic,67 the Court in considering the issues of stay of
proceedings relied in the jurisprudence from the European Courts of Human Rights and held
that:
…proceedings should only be stayed where it would amount to an abuse of the
process of the court to proceed with the prosecution; and, that in other situations the
court had alternative remedies including marking the fact that there has been a
contravention; taking into account the contravention in any sentence imposed or
making an award for compensation, if a defendant is acquitted.68

In the House of Lords case of Attorney General's Reference (No 2 of 2001),69 the House was
asked whether it might be correct to stay criminal proceedings as an abuse of delay. The
defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001,
when they submitted that the delay was an abuse. The House of Lords held that the
defendants had a right to a fair trial within a reasonable time, but that became effective only
where it could be shown that no fair hearing remained possible, or there was some other
compelling reason creating unfairness. The time period was to be calculated from the earliest
time at which the defendant became aware that he might be charged. The mere fact that the
prosecutor was the source of delay was not a sufficient reason. The consequences of a breach
of a guaranteed right vary according to the situation. When faced with a delay, the court
could ask whether the prejudice could be cured. The House of Lords decision (supra)
therefore established that delayed trials should proceed unless, for additional reasons, it
would be unjust to continue.

7.0. Conclusion and Recommendations

7.1. Conclusion
The right to a fair trial is a norm of international human rights law designed to protect
individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights
and freedoms. One of the key ingredients of the right to a fair trial is the right to have trial
begin and conclude without unreasonable delay. The Constitution of Ghana, 1992 under

67
[2010] eKLR
68
Ibid (n. 56)
69
Ibid (n. 5)

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Article 19 has recognised this right as one of the fundamental safeguards bestowed against an
accused during criminal proceedings. The purpose of the right to a fair trial without undue
delay is to expedite trial.

This study concludes that there are both physical and structural delays to access to justice in
Ghana. The physical delays are the result of constant breakdown of vehicles as a result of
extreme pressure and inadequate budget to provide fuel for official vehicles making it
difficult to present suspects before the court when their court dates are due while the
structural delay results from the cumbersome court procedures or rigid legal regimes and
unnecessary bureaucratic bottlenecks.

This study also concludes that the delay in accessing justice adversely affects the prison
administration because it puts pressure on prison facilities such as clinics, infirmary, and
vehicles. Such delays also increase the risk in the work of the prison officers. Overcrowding
was found out to be one the negative effects of the delay on prison administration. It further
puts undue strain on the budget of the prisons especially on items such as fuel bills, medical
supplies, and waste management.

This study further concludes that the right to a fair trial without unreasonable delay has been
interpreted to apply in two sets of standards: during pre-trial detention and during the actual
trial. Whether the right applies during pre-trial is a contentious issue. In cases where accused
persons argued that delay to be prosecuted occasioned a violation of their right to a speedy
trial, the courts have considered whether the pretrial delay occasioned prejudice to the
accused leading to unfair trial.With regard to delays which occur during actual trial, what
constitutes a reasonable time is judged according to the circumstances of the individual case.
The court will consider several factors in determining whether a trial has been concluded
within reasonable time, such as the nature of the crime, duration it has taken, societal interests
and prejudice to the accused. The courts have a duty to consider all the circumstances of the
case in determining whether the right to a trial without undue delay has been violated.

This study also concludes that remedy for violation of the right to fair trial within reasonable
time varies from jurisdiction to jurisdiction. Public interest is key when crafting an
appropriate remedy where a violation of the right to have a trial within reasonable time has
been violated. The courts would consider whether delay would be prejudicial to the accused.
The remedy of stay of proceedings or acquittal can only be considered by court where it is

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determined that the breach is so severe that a fair trial cannot be held. It must be shown that
despite other measures in place expediting the trial, the delay remains undue.

7.2. Recommendations
The following recommendations are made:
 Parliament should consider defining the scope of this right as well as time frames in
legislation in line with the generally accepted guidelines deduced from judicial
precedents. This will provide an appropriate guidelines and set legal parameters
within which this right is to be interpreted and applied. This may be done through
amendment of various legislation such as the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30) and the Evidence Act, 1975 (NRCD 323)
 Strict enforcement of the right through award of appropriate remedies will keep all
concerned in the administration of justice alert and alive to the law since any
transgression will lead to repercussions.
 There is a need to computerise the record keeping system of criminal justice system
and ensure that this system is kept up to date at all times. A database of cases should
be easily accessible to the presiding magistrates, judges as well as prosecutors, who
through this means, without difficulty, can follow up on pending cases as well as
monitor the progress of the investigating officers in compiling dockets. This is also an
efficient tool for maintaining checks over the period for which an accused has been on
custodial remand.
 The Legal Aid Scheme must be better resourced in terms of logistics and personnel to
deliver its mandate of defending the voiceless much more effectively.
 Government must increase resource allocation in the budget cycle for the Ghana
Prisons Service to help increase the procurement of vehicles, logistics,
communications equipment and accommodation for effective service delivery.
 The government, through the National Commission for Civic Education (NCCE),
Legal Aid Scheme and the Commission on Human Rights and Administrative Justice
(CHRAJ) should embark on conducting public awareness campaigns to educate the
public of the right to a fair trial especially the right to have a trial without
unreasonable delay. This will inform the general public of their legal rights and enable
them to demand strict enforcement.

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The recommendations above are meant to ensure that trials are heard and determined
expeditiously. This will ensure that justice is administered without unreasonable delay in
conformity with Article 19 (1) of the Constitution of Ghana 1992.

Page | 19
Bibliography
Constitution
 The Constitution of the Republic of Ghana, 1992
 The Constitution Act, 1982 (Canada)
 The Constitution of the Republic of Kenya, 2010
 The Constitution of the Republic of Namibia, 1990

Statutory Instrument
 Criminal and other Offences (Procedure) Act, 1960(Act 30)
 Evidence Act, 1975 (NRCD 323)

International Instruments

 African Charter of Human and People’s Rights (also known as the Banjul Charter)
adopted June 27, 1981.
 International Covenant on Civil and Political Rights. Adopted by the General
Assembly of the UnitedNations on 19 December 1966.

Case law

 Attorney General's Reference (No 2 of 2001) [2003] UKHL 68

 Barker v Wingo [1972] 407 U.S. 514
 Darmalingum v State (Mauritius) [2000] UKPC 30
 Flowers v The Queen [2000] 1 WLR 2396
 Fillastre, Bizouarn v Bolivia Communication No. 336/1988, U.N. Doc.
CCPR/C/43/D/336/1988 at 96 (1991)
 In re Mlambo 1991 (2) ZLR 339 (SC)
 John NjorogeChege v Director of Public Prosecutions [2012] eKLR Criminal case 28
of 2011
 JuliusKamauMbugua v Republic [2010] eKLR
 Martin Kpebu v Attorney-General [2016] SC No. J1/13/2015 (Unreported)
 Martin v Tuarang [1995] 2 LRC 788
 R v Askov [1990] 2 S.C.R. 1199
 R v C.S.1999 CanLII 18948 (NL CA), paragraph 9
 R v Morin (1992) 1 SCR 77, paragraph 5
 R v Mills ACTSC 109 (1 July 2011)

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  R v Rahey (1987) 1 S. C. R. 588 (Canada), paragraph 9
 R v Upton [2005] ACTSC 52
 S v Heidenreich 1996 (2) BCLR 197
 S v Tau 1997 (1) ZLR 93 (H)
 Shalto v Trinidad and Tobago UN doc. GAOR, A/50/40 (vol. II), p. 19, para. 7.2.
 State v Strowitzki and Another 1995 (1) SACR 414(Nm)
 Strunk v United States 412 U.S. (1973)

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Ghana: A Shared Responsibility for Civil Society, the Private Sector and Government.
Ghana Centre for Democratic Development (CDD)
 Zvikomborero, C., (2012), Serious Offences and the Right to Trial within a
Reasonable Time, 9 Essex Human Rights Review 1.

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