Police prosecution is per se unconstitutional

The police function and the prosecutor’s function are separate and apart and should be kept that way for the effective administration of criminal justice. The police arrest people on account of reasonable suspicion or probable cause. This standard is de minimis, as compared to the prosecutor’s standard which obligates them to prosecute only if they are convinced that they can prove a case by application of the high bar of “beyond a reasonable doubt”. Therefore the police arrest could be willy-nilly and even faulty, whereas the wrongful prosecution of a case is a crime in and of itself. In other words, the prosecutor has the extreme unction to prosecute only when he is convinced that in his own mind, a certain case can be proven beyond a reasonable doubt. Thus to combine the prosecutorial powers together with the police powers leads to arbitrary police powers susceptible to abuse and injustice.

It also leads to unauthorized practice of law because the prosecutorial decision is a purely legal one which tasks the prosecutor to make a determination as to the ingredients of a crime and to require him to chart the pathway to make a legal argument appertaining to a case. The auspices of a prosecutor resides in the Attorney General’s office. Whereas the police has the Inspector General of Police as head and is answerable to him. How or when therefore do the two merge to become one, such that one should act in the stead of another?

Unfortunately, for most part of the time in Ghana, the arresting powers and prosecutorial powers are often merged in the police and are inseparable. This has led to widespread injustices wherein there has been extreme lack of uniformity in the overall criminal justice system. No matter how a chief inspector of police might be instructed in the law, he or she is not a lawyer and cannot lead in any prosecution whatsoever. At best, he might be too interested in a case since he represents the arresting agency; or be too laxed in a case on account of some influence from somewhere; or lack confidence in making a good case if subjected to the aggression of a competent attorney whose legal acumen he is unlikely to equal. Most of the time therefore, punishments may be out of proportion with a matter; or the case may be decided on a faulty standard of proof; or the charges themselves will not fit the ingredients being asserted under law.

But no matter what, permitting a police officer who is also a representative of an arresting agency to prosecute a case which should be under the auspices of the Attorney General’s office amounts to a conflict of interest and an affront to due process and procedure as these terms are known and understood in the civilized world.

A trained and competent attorney ought to be the one prosecuting a case, not a police officer. An attorney/prosecutor will be the one using the lens of the law to make a legal conclusion whether a matter meets the correct threshold of the law. He is the one who will be able to make a determination as to whether a case meets the high bar of “beyond a reasonable doubt”. Anything short of that, we will have a classic case of miscarriage of justice.

The universal principle of criminal law assumes that it is better for a hundred criminals to go scot-free than that one innocent person should be wrongfully convicted. This penumbra of criminal law ought to undergird our sense of prosecution and conviction. If we fall short of any standard and lower the bar to prosecute anybody, then the presumption is that we have had a trial defect which ought to make all our criminal processes and proceedings reversible. We should either plug the loopholes in our processes and procedures within the criminal justice system; or train enough lawyers to lead in the prosecution of crimes in the country. Otherwise it is better for criminals to walk free than that they are wrongfully prosecuted.

All over Ghana, there are too many instances where the police are leading in the prosecution of crimes. We have no clue the panoply of influences and pressures they come under, whether they are bribed to let matters go, or they are inclined to press charges where none exists; or to ask for punishments that are out of proportion with a particular crime. As a result, so many people’s freedom and liberties are under siege and remain forfeited.

Meanwhile, the police do not have the kind of profound responsibilities which a trained lawyer and prosecutor is supposed to have; and they are not answerable to anyone on account of their flawed prosecution. They are not answerable to the legal authorities or even the Attorney General’s Office.

Under the principles of our constitution, such prosecutions by the police ought to be rendered a nugatory and negatory. We should do the right thing according to the law. Especially if we are seeking to deprive our citizens of their freedoms and liberty, we should do so fully aware of the profundity of our responsibility.

I do not know where the police derive its prosecutorial powers to prosecute the citizens of Ghana; but no matter the source, it is dangerous and per se illegal and unconstitutional, powers that offend universal principles of law and ordinary commonsense. And insofar as there are those whose freedoms have been curtailed on account of such defective prosecution, government and human rights groups ought to set in place a method of review, wherein all the victims of police prosecution can have their cases reviewed.

Our democracy must gravitate toward a more competent criminal justice system, rather than the half-baked one to which we have become accustomed.

Dr. Samuel Adjei Sarfo, Esq.

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