Excessive Delay Of Cases: A Violation Of The Right To Fair Trial

Article 19 (1) of the 1992 Constitution states that persons charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.

The 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 fair trial in many cases.

The rules applicable to the administration of justice are wide and refer to, inter alia, the right to a fair and public hearing, equality before the law and equal treatment by the law, hearing within a reasonable time and the independence and impartiality of the court .

Each of these rights has been crafted to ensure that every person coming before our courts is afforded, from the moment investigation or detention begins till the final disposition of the case, equal protection no matter what their birth or national origins; their social or economic status; or their religious or political beliefs and no matter how grievous the alleged crime.

This presupposes that theright to a fair trial encompasses the notion that each individual must be able to makeuse of his procedural rights regardless of his individual capabilities. These constitutionally guaranteed rights therefore afford particular protection to the more vulnerable and greatly disadvantaged who may come before the law as witnesses, victims or accused and also cast a legal duty on judges to ensure that they are respected, realized and never violated.

To begin with, each segment of the criminal justice sector in Ghanahas passed the buck for the delay in prosecuting cases. The Judicial Service has denied accusations of inaction with regard to the prosecution of criminals, saying it is the responsibility of the Attorney-General's Department and the Ghana Police Service, and attributing the adjournment of cases to the inability of the prosecution to produce witnesses.

The Attorney-General's (A-G) Department, on the other hand, has blamed the delay in the prosecution of cases, not on the A-G's Prosecution Division, but on the Police for being slow in submitting dockets. The Police talk of inadequate staff, unwillingness of complainants and witnesses to collaborate, corruption and use of extensive and exhaustive investigative techniques . The blame shifting is a reflection of a serious lack of coordination among the justice sector actors.

The fact is, judgeshave complete control of a case as soon as it comes to court. It is their paramount duty to ensure that fair trial norms assured by the 1992 Constitution are adhered to. Therefore, non-compliance with any single norm at any stage can subvert all furtherproceedings, taint the entire process and gravely impinge on the rights of all parties before the court.

Article 19(1) of the 1992 Constitution expressly require that hearings take place 'within reasonable time'. The International Covenant on Civil and Political Rights (ICCPR) to which Ghana is signatory speaks of expeditious hearings, thereby also implying that justice be delivered expeditiously and within a reasonable time. It is especially important for a person charged with a criminal offence not to remain longer than necessary in a state of uncertainty about his/ her fate.

Trials lasting as long as 10 years have been deemed reasonable, while others lasting less than one year have been found to be unreasonably delayed. What is reasonable time depends on the complexity of the case, its importance, the behaviour of both applicant and competent authorities .

The Commonwealth Human Rights Initiative (CHRI)'s Justice Centers project,which is aimed at promoting increased access to justice to suspects at the early stages of the criminal justice system and protecting the human rights of the poor and indigent has regrettably revealed that a significant number of people accused of low level offenses such as breach of peace or getting into a fight spend an average of two days in detention in blatant violation of the 48-hour rule.

Several other cases involving fraud and stealing spend about one year in pre-trial detention with their cases not heard. It is particularly disturbing for so much time to be spent on such minor cases, especially in situations where complainants are only interested in getting their monies or properties back.

The result of such delays is that parties to the dispute get frustrated and lose confidence in the entire justice system.

This therefore means that the overall length (usually between one to two years for some minor offences such as stealing) as observed by CHRI's Justice Centers Project, is excessive and constitutes a breach of the reasonable time requirement. It is therefore crucial to bear in mind thata delay of justice is often equal to no justice at all.

This articlerecommends, in view of the affore-mentioned observations, that for a good system of due process, a large number of important rules have to be complied with and such compliance must be done in a consistent way.

Judges should, in accordance with recommendations set forth by the Universal Declaration of Human Rights (UDHR)take into consideration such fundamental elements as complexity of the case, its importance, the behaviour of both applicant and competent authorities.

These delays, if not addressed could negatively impact on the speedy resolution of cases, casting doubt upon the basic tenets that make the process of litigation credible and reliable. Fair trial, which includes the right to be heard within a reasonable time, is therefore not a favor afforded to the supplicant at law but a bundle of legally enforceable rights guaranteed by the state to its citizens, for whom the state itself exists and must be observed as such.

Ruth Guribie
Project Assistant, Access to Justice
CHRI-Africa Office