`Due Process of Law` —What is It?

In Ghana it is commonplace to find people bandying about words, phrases or terminologies without fully understanding what they mean or the contexts within which they should be used. If I am not mistaken I guess it would appear that legal terminologies are mostly the victims of this sort of 'crucifixion' of words and terminologies. In the wake of the recent Bureau of National Investigation (BNI) interrogations of former government officials like Mr. Kwadwo Mpiani one of such legal terminologies which has enjoyed so much usage on the lips of journalists, political and social commentators, serial callers, the so called ordinary Ghanaian and lawyers is the phrase “due process of law.”

The Due Process of Law—what does it mean? And what is its relationship with the right to consult with counsel of one's choice as far as criminal proceedings or investigations are concerned? These are the issues I wish to explore in this piece and I entreat you to stay with me on this legal voyage.

The concept of due process of law originated in England, but its development and content as we have it today is owed to American constitutional jurisprudence. The tendency of governments to suppress the rights of the governed in order to entrench themselves in power and to perpetuate their rule is not new, neither is the struggle of freedom loving peoples to limit the powers of governments sometimes even at the peril of their lives.

limit the powers
In order to limit the powers of the King for purposes of securing the liberty of ordinary peoples, the lords and barons of ancient England in 1215 entered into a pact with King John. The Magna Carta (i.e. Great Charter) as it was called became one of the fundamental documents which make up the English constitution. In clause 39 of the Magna Carta 1215, was enshrined the principle that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by THE LAW OF THE LAND”. By executing this Charter and inserting therein this provision, these early Englishmen were seeking to put some restraints on the powers of the King, eliminate absolutism of power and arbitrariness. Jacob Hornberger has for instance suggested that “the idea behind the 'law of the land' provision in Magna Carta, which has been described as the cornerstone of English liberties, was to require the king to follow certain procedures as a prerequisite to seizing and punishing a person for a crime he had supposedly committed.” Over time the phrase “law of the land” was changed to 'due process of law'.

The use of the phrase due process of law became formalized when in a statutory rendition of clause 39 of the Magna Carta in 1354 'law of the land' was substituted for 'due process of law'. The 1354 Due Process of Law Act provided that “No person of what estate or condition that the person be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by DUE PROCESS OF THE LAW.”

This concept of due process was introduced to North America through British colonisation much the same way as they did in Africa through the introduction of the English common law system. Through the Fifth Amendment to the US Constitution ratified in 1791 due process of law, a concept which was one of the ordinary common law guarantees for freedom was given a constitutional status by requiring the US federal government to respect the principle that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment which was ratified in 1868 extended this constitutional injunction to cover state governments as well by requiring that “...nor shall any State deprive any person of life, liberty, or property, without due process of law”. These two provisions of the US Constitution set the stage for the US Supreme Court to reinforce and expand several principles of justice which together make up the concept of due process.

Having traced the historical development of the concept of due process let's now delve into what it actually means. As indicated above, the content of the concept of due process as we have it today is traceable to American constitutional jurisprudence. The development of the concept in the United States has brought with it two ways in which it is understood, namely procedural due process and substantive due process. The latter is actually the product of conscious judicial activism by the US Supreme Court to provide grounds for striking down federal and state legislations which seek to regulate certain fundamental rights.

In this piece what I will concern myself with is procedural due process, its meaning, content and application. This is because due process properly so called is procedural due process, and that was what was known to most constitutional lawyers long before the development of substantive due process by the US Supreme Court starting with the case of Allgeyer v. Louisiana.

Procedural due process basically refers to the idea that government must follow certain fair and generally accepted legal procedures in its actions against individuals. What this means is that governments may limit or restrict the rights and liberties of individuals in some ways and under certain circumstances, but in doing so they must follow certain laid down procedures and generally accepted standards of fairness. To put it differently and perhaps more positively, due process refers to the standard of treatment an individual is entitled to and which he must as a requirement of law, be accorded in the process of a government action to restrict or limit one or more of his fundamental human rights.

So what then are those standards of treatment which must be accorded a person who has been restricted, arrested or detained? Or has otherwise been invited by say the Police, BNI, the SFO or even CHRAJ for some questioning in relation to a matter being investigated by them? The most fundamental requirements of due process are 'notice' and 'hearing' or the right to be heard.

Notice implies that a person who is arrested or detained must be informed immediately of the reasons for his arrest or detention, and also that the one who is invited for questioning must be given sufficient prior notification. It also means generally that where a person had the right or privilege of enjoying a facility then he should be given advance notification of an intention or decision to terminate the enjoyment of that facility. Hearing (i.e. the right to be heard) on other hand simply means that no person should be condemned or otherwise deprived of any right until he has been given the right to challenge such deprivation in a properly conducted trial or other process recognised by law. These are fundamental principles of justice which underlie any civilised legal system.

Other correlative due process guarantees which are aimed at securing fair hearing for an accused person in a criminal proceeding are the right to be presumed innocent until proven guilty, the privilege against self incrimination, the rule against double jeopardy and most importantly the right to counsel which I intend to devote a little more attention to in this piece. A person who is arrested, restricted, detained or who is under some investigation for a wrong doing has a right to be presumed innocent until his guilt is proven and pronounced by a competent court or until he himself admits his complicity in the matter. Because of this, no person has any right to treat a person against whom an accusation has been made as though he has already been convicted of the offence. If the reverse were the case, then governments could detain individuals indefinitely without bringing them before any court or that the police could shoot and kill persons whom they suspect to have committed a serious offence like murder or armed robbery without any court proceeding.

incrimination
The privilege against self incrimination means a number of things. First, that no person can be compelled to testify as witness against himself; second, that an accused person has a right to remain silent and refuse to answer any questions from the police or other security agents investigating him for a crime or to refuse to testify in court; and third, that an accused person or any person at all under any form of investigation or proceeding has the right to refuse the disclosure of any information which if disclosed would implicate him in the commission of a crime. The rationale behind these is to prevent the use of force, torture, cruel and degrading treatment or even fraud by the security operatives to obtain confessions from persons alleged to have committed some crimes.

The rule against double jeopardy, to state it bluntly, is that a person who is tried for an offence and who is either acquitted or convicted cannot be tried again for that offence on the same facts. Indeed if these standards of due process, however trivial they may seem, are disregarded you will be surprised at how quick the transition will be from the rule of law to the rule of strong men. But of what use will all these due process guarantees be if governments can flout them with impunity, or that individuals who are entitled to them do not even know they exist or that even if they do, they do not know how to assert or enforce them? This is where the right to consult a lawyer of one's choosing or simply the right to counsel comes into the picture. What must be borne in mind is that governments stand on the better side in terms of resources to be able to hire the best prosecutors they can find, hire or train the best detectives and to marshal all the techniques at their disposal just to nail one accused person. And sometimes the scenario could look almost like killing an ant with a sledge hammer! In these circumstances if a layman were to go undefended by a lawyer, the likelihood of the proceedings degenerating into a sham with a preordained outcome cannot be ruled out, and the situation as you can imagine would be much worse if the accused also happened to be illiterate. For these reasons, the right to have effective assistance of counsel constitutes one of the most crucial guarantees of the concept of due process. In view of this the Courts, particularly in the US, have maintained time and again that a person who is arrested or restricted or is otherwise being questioned or investigated is entitled to be informed of his right to counsel of his own choosing, and that if the individual chooses not to answer any questions until his lawyer is present then the police may not question him until his lawyer is present.

In 1966, following its earlier decision in Escobedo v. Illinois 378 U.S. 478 (1963) the US Supreme Court established in Miranda v. Arizona 384 U.S. 436 (1965) some detailed and specific guidelines for the questioning of persons under investigation. Chief Justice Warren said: “as for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required.

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.

The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

self-incrimination
The Honorable Chief Justice continued by cautioning that “if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel….An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

The penalty for breaching the above has always been the exclusion or suppression by the Courts of any evidence obtained in violation of these guidelines which have become known as the Miranda principles. So in Brewer v. Williams 430 US 387(1977) for instance, the Supreme Court held that a statement elicited from the petitioner, Lou Brewer, in the absence of his lawyer while he was being transported in police van to the place of his trial was inadmissible because it was obtained in violation of his right to counsel and privilege against self incrimination.

So is the position of the law in Ghana as far as due process of law is concerned. Does our Constitution recognize due process much the same way as it is applied in the United States? The answer is yes! Even though the 1992 Constitution does not specifically use the phrase “due process of law”, the entire package of legal entitlements which constitute due process as applied in the US is enshrined in our Constitution of 1992.

Indeed articles 14 and 19 of the Constitution are just two examples of the many provisions which expressly enact in the Constitution very extensive guarantees of due process including the right to be presumed innocent until proven guilty, the privilege against self incrimination, the rule against double jeopardy, and the right to counsel all of which are subsumed under the general right to fair trial. What is even more interesting is that guarantee of due process entitlements is not peculiar to 1992 Constitution; both the 1969 and 1979 Constitutions also contained provisions in very similar terms to what we have in the 1992 Constitution.

Court of Appeal
Indeed as far back as 1974 the Court of Appeal in the case of Okorie & Another v. The Republic [1974] 2 GLR 272 approved and applied the Miranda principles in interpreting article 15(2) of the 1969 Constitution which was to the effect that “any person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to consult Counsel of his own choice.” The Court accordingly held that any evidence obtained in violation of that provision stands to be excluded as a matter of law. That decision as far as my research on this matter is concerned still stands and has not been overruled. Indeed it was followed in Republic v. Akosah [1975] 2 GLR 406, where the High Court threw out a confession obtained by the police from the defendant, who had been accused of attempted abortion, on the grounds that the police prior to questioning him did not inform him of his right to consult a lawyer and to have him present before answering any question.

In view of this I have no doubt in concluding that the guarantees of due process in the nature and extent as they are applied in the US are fully in force in this country. But as we have noted in the examples cited above, these guarantees by themselves do not secure the liberty of the individual; they only do when the Courts put them in motion by applying them without fear or favor.

As for the police and other investigative institutions like the BNI, I think it is in their own interest to respect and apply themselves to these principles in the course of their work so as to prevent the possible embarrassment of having evidence gathered by them thrown out by the Courts on grounds of their disregard for due process. And I'm sure it will also go a long way in saving them from the usual bashing from the media, human right activists and politicians which most of the time doesn't do well for their own credibility.