Lois-Annie Brown is a dedicated lawyer with a strong focus on family law, corporate law and civil litigation
INTRODUCTION
Ghana’s criminal justice system, like many criminal justice system around the world, is continually evolving. In 2022, parliament enacted the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) to provide a comprehensive guideline for plea bargaining. The basis of this law is Article 19(2) of the 1992 Constitution 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”. This means that an accused person has the liberty to plead innocent and undergo a fair trial or plead guilty and waive his/her right to a full trial.
Plea bargaining is the process whereby an accused person pleads guilty in order to receive some benefits such as reduction in sentence, a reduction of an offence charged to a lesser offence, or a withdrawal of some charges. With the introduction of plea bargaining, lengthy criminal trials in Ghanaian courts have a become a thing of the past. Now, accused persons can negotiate for a lighter sentence-something that was once impossible in criminal cases in Ghana – they can negotiate. These negotiations can begin or be withdrawn at any stage of the proceedings before judgment. Where successful, it results in what is known as a plea agreement.
In Ghana, only the Attorney-General can authorize prosecutors by written notice, to engage in plea bargaining, either generally or for a specific case.
CATEGORIES OF PLEA BARGAINING
Section 162(A) of Act 1079, provides three categories of plea bargaining in Ghana:
1. Charge bargaining which is the dismissal, substitution, or reduction of a charge to a lesser charge which carries a less severe punishment.
2. Sentence bargaining, which is in exchange for a guilty plea, the prosecution may agree to recommend that an accused receive a reduced or more lenient punishment.
3. Non-prosecution bargaining which is the withdrawal of a charge against an accused in the interest of justice, national security or in the public interest. In this instance, charges are not filed at all or where charges have been filed, the charges may be withdrawn.
THE SCOPE OF PLEA BARGAINING
Plea bargaining is not an option for the trial of persons charged with:
(a) treason or high treason;
(b) high crime;
(c) rape;
(d) defilement;
(e) genocide;
(f) robbery;
(g) kidnapping;
(h) murder;
(i) attempted murder;
(j) abduction;
(k) piracy;
(l) hijacking; and
(m) an offence related to public elections.
PLEA BARGAINING – THE PROCESS
INITIATION
Plea negotiations may be initiated by an accused person or his counsel, or a prosecutor in charge of the prosecution of an accused person. Before the plea negotiations commence, the prosecutor must inform the accused person of their rights such as the right to counsel of his choice and avoiding self-incrimination. Once it commences, either party is to give notice to the Court in writing of the commencement of the plea negotiations. Consequently, the case is adjourned to negotiate a plea agreement.
Where a plea agreement is not reached with thirty (30) days of the commencement of the plea negotiations, the Court may proceed with the trial. The resumption, however, should not preclude the parties from further negotiations to conclude a plea agreement.
CONDUCT
Generally, a prosecutor must take into consideration the nature and circumstances under which the offence was committed, the views of the investigator, the personal circumstances of the accused person, the previous conviction of the accused person, the interest of the community and the interest of justice. The prosecution is also mandated to file and serve disclosures on the accused, whether they intend to rely on it or not.
A prosecutor should not conclude a plea agreement unless he has informed the complainant and afforded them an opportunity to make representations regarding the content of the Plea Agreement. Where a prosecutor can prove that he has made reasonable attempts and is unable to reach a victim or their representatives, the prosecutor may conclude the agreement without the victim. During the process, the victim and any other relevant parties to the offence must be consulted to ensure their views and interests are considered. Where a victim is dissatisfied with the terms of the deal, they have a right to object to the terms of the agreement by filing a statement detailing the grounds of objection for the court’s consideration and serve the accused person with a copy of same.
All the parties involved will engage in negotiations and mutually agree on the terms of the plea deal, which will ultimately be presented to the court for consideration.
FORM OF PLEA AGREEMENT
Where a prosecutor and an accused person or counsel for the accused person reach a plea agreement, the prosecutor shall reduce the plea agreement into writing, which shall state:
a. that before the accused person entered into the plea agreement, the accused person was informed of their rights under section 162C (2) of Act 1079;
b. the terms of the plea agreement;
c. the relevant facts of the case;
d. any admission made by the accused person;
e. all the charges to which the accused person has agreed to plead;
f. the sentence to be recommended to the Court, if any; and
g. any restitution to be made or compensation to be paid by the accused person.
The agreement must be signed by the prosecutor, the accused person and counsel for the accused person, if any.
CONSIDERATION AND ACCEPTANCE
Where a plea agreement is concluded, the prosecutor shall within seven (7) days, cause a copy of the plea agreement to be filed and served on the accused person and on the victim, where applicable. The Court shall, before considering the plea agreement, address the accused person personally under oath to determine the accused person entered into the plea agreement voluntarily; and was informed of the rights of an accused person. The court must also be satisfied that the accused understands that by accepting the plea agreement the accused person is waiving the right to a full trial; the nature of the charge the accused person is pleading to; and that by accepting the plea agreement, the accused person is waiving the right to appeal.
Where the Court accepts a plea agreement, the Court shall call on the accused person to plead to a charge in the plea agreement. In convicting an accused person under these circumstances, the Court shall consider the recommended sentence in the plea agreement. Where the plea agreement does not include a recommended sentence, the Court may, subject to any enactment, impose a sentence as the Court considers just. The court may also advise the parties to renegotiate the plea agreement where it is dissatisfied with the sentence recommended in the plea agreement.
WITHDRAWAL AND REJECTION OF PLEA AGREEMENT
A prosecutor or an accused person may withdraw from a plea agreement at any stage before the Court accepts it. If the trial had not commenced, the court is to proceed with the trial as if no plea agreement was made. However, if the trial had already started, the court will continue from the point where it left off prior to the plea agreement.
Notably, if the accused person pleads not guilty to the terms of the plea agreement, the Court will treat this as a withdrawal from the agreement and will order the trial to proceed based on the original charge.
A court may reject a plea agreement in accordance with the law, and such a decision is not subject to appeal. If a plea agreement is rejected, the court must provide reasons for the rejection, inform the parties involved, and enter a plea of not guilty on behalf of the accused. The court will then proceed with the trial on the original charge. Furthermore, if a plea agreement is rejected, neither the agreement or any related plea-bargaining proceedings can be used as evidence in any subsequent trial arising from the same facts.
RIGHT TO APPEAL
Where a court convicts and sentences an accused person in accordance with a plea agreement, the conviction and sentence are final, and no appeal can be made against the judgment. However, either the prosecutor or the accused may appeal to the court to set aside the judgment on specific grounds. They are:
- Fraud
- Misrepresentation
- Undue influence
- Mistake
- Duress
- Illegality
- Incapacity (on the part of someone other than the applicant), or
- a breach of the rules of natural justice.
Such an appeal must be filed within ninety days from the date of the judgment and the court will set aside the judgment, order a retrial or discharge the accused person, depending on the justice of the case.
CONCLUSION
The plea-bargaining system will ensure speedy and sufficient disposal of criminal matters to a large extent. As seen in other jurisdictions in operation, plea bargaining contributes to the fight against organized crimes, where accused persons are co-opted as informants or prosecution witnesses and as a direct result reduces the recurrence of crime.
In addition, it is also beneficial to each party involved as it gives the accused access to benefits that do not exist in the traditional criminal trial (such as a reduction in sentence, withdrawal of some charges, reduction in offences charged and reduction in cost of litigation). The victim also benefits by being given a voice in the criminal proceedings, is ensured that his or her interests are protected, and receive possible compensation and restitution.
Lois-Annie Brown is a dedicated lawyer with a strong focus on family law, corporate law and civil litigation . Committed to continuous professional development, she is passionate about honing her skills and expanding her expertise in the practice of law. Lois enjoys singing, reading and travelling.
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079), s.162A, s.162B
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
Ibid n.2
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
LADA Institute, 10 Facts About the Plea Bargaining Law of Ghana (LADA Institute, 2023)
