Monday Essay: Vindication After Bars: Recompense for the Righteous After Wrongful Conviction

Introduction

No man knows the value of innocence and integrity but he who has lost them

The nightmare of wrongful conviction leads to shattered lives, leaving an innocent person damned to prison and their reputation in tatters. The 1992 Constitution of Ghana recognizes this injustice and provides a glimmer of hope for vindication. Article 14(7) of the Constitution offers a public law remedy, empowering courts to award compensation to those acquitted of crimes they did not commit. This provision embodies the state’s acknowledgment of its responsibility to rectify miscarriages of justice. But how effective is this safeguard? How do courts exercise their discretion in awarding compensation, and what factors influence their decisions? This essay examines the scope and application of Article 14(7), exploring the interplay between justice, fairness and state liability. Through this lens, the essay analyses the extent to which Ghana’s constitutional framework provides meaningful recompense for the wrongful convicted, and whether the current approach strikes an adequate balance between individual rights and public interest. The essay seeks to illuminate the complexities of post-conviction remedies and the ongoing quest for justice in Ghana’s legal landscape.

Protection of personal liberty and the state’s responsibility to rectify miscarriage of justice

Article 14(1) of the 1992 Constitution entitles every person to his personal liberty and guarantees that no person shall be deprived of his personal liberty except under certain circumstances provided by the Constitution. Article 14(7) provides that “where a person who has served the whole or a part of his sentence is acquitted on appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.” Article 14(7) embodies the state’s acknowledgment of its responsibility to rectify miscarriages of justice, providing a remedy for those wrongfully convicted. This provision recognizes the state’s duty to compensate individuals who have suffered imprisonment for crimes they did not commit, acknowledging the inherent injustice and harm caused. By empowering courts to award compensation, the provision serves as a constitutional safeguard, holding the state accountable for its errors. The provision’s placement within Article 14, which guarantees protection from arbitrary deprivation of personal liberty reinforces its purpose of protecting citizens from state overreach and ensuring redress when rights are violated. Ghana’s constitution demonstrates a commitment to substantive justice, acknowledging that mere acquittal or release from prison is insufficient to undo the harm inflicted. The constitutional provision, thus, represents a critical mechanism for vindicating the rights of the wrongfully convicted, providing a measure of recompense for the irreversible consequences of state-inflicted injustice.

To award or not to award: A mandatory duty or an exercise of discretionary power

Article 14(7), not being the first of its kind, drew its inspiration from the 1969 and 1979 Constitutions where Articles 15(6) and 21(7), respectively, contained similar provisions on payment of compensation for wrongful conviction in Ghana. The jurisprudence of the Superior Courts in Ghana, as espoused in the case of Dodzie Sabbah (No. 2) v The Republic [2015-2016] 1 SCGLR 402 and Eric Asante v The Republic, Criminal Motion No. J8A/03/2017 dated 30^th May, 2018 is that the award of compensation is not automatic upon an acquittal on appeal, rather it is discretionary. The courts have made it clear that the word “may” in Article 14(7) ought to be interpreted as permissive and empowering rather than mandatory or imperative. This means that within the meaning of Article 14(7) and at both judicial levels, namely the Court of Appeal and the Supreme Court, the use of “may” means that the compensation is intended to be awarded through the exercise of a power which is discretionary. Thus, even where the court below has issued a certificate, the Supreme Court’s decision to award or not to award compensation, as well as the quantum of compensation, involves the exercise of discretionary jurisdiction. Also, where the acquittal is by the Supreme Court, the Court is likewise obliged to make an award suo motu or when prompted. A refusal by the Supreme Court in this respect is subject to review. At all levels, the courts are required to act judicially whilst exercising their discretion i.e. in a fair manner. This means that a person who has been acquitted by an appellate court after having served the whole or part of his sentence is not automatically entitled to compensation.  In the same vein, the appellate court is not under a mandatory duty to issue a certificate to that effect. The Supreme Court, alike, is not under a mandatory duty to order compensation in favour of the acquitted person.

When, why and how much recompense for the righteous

The jurisprudence of the Superior Courts establishes that compensation should be paid in deserving cases where there is a wrongful conviction. This, the courts have interpreted to encompass the whole gamut of miscarriages of justices beginning when an accused is arrested, interrogated, up through the court proceedings – including the appeal, sentencing, execution and clemency stages. The courts maintain that a deserving case is where there are blatant violations of the guaranteed rights and freedoms of ordinary citizens, including substantial, serious or gross amounting to a miscarriage of justice. Furthermore, by way of procedural propriety, it is clarified that the certification to the Supreme Court under Article 14(7) may be at the instance of the appellate court acting suo motu, or an application brought by an acquitted person. What is important is that any formal applications, together with the relevant documents, must be made timeously to the same court. Regarding the nature of compensation to be awarded, the jurisprudence of the Superior Courts is that the compensation be in the form of general damages except where the victim of the wrongful conviction satisfies the court that, beyond the invasion of his right to freedom of movement, he has suffered damages that require to be awarded specially. Where the applicant is unable to satisfy the court on his entitlement to an award beyond general damages, a reasonable sum of money would be an adequate recompense.

In assessing the reasonability of the compensation to be awarded, the determinant factors include the period of incarceration, the stigma associated with the offence charged, the seriousness of the injustice meted out to the applicant, the nature of the sentence imposed, specific pecuniary and proved as a result of incarceration losses amongst others. Merely listing figures to support the claim for compensation is not enough. The measure of damages awarded for breach of a constitutional right under Chapter 5 of the Constitution in cases where no actual damage is proved may be difficult to assess. However, the regular tort and common law principles of restitutio in integrum are useful, such that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong. As a caution, however, the award for wrongful compensation and imprisonment should not be punitive but should strike a balance between what is fair and just as against ensuring that the state is not burdened with enormous monetary liability.

Conclusion

In conclusion, the constitution of Ghana provides a vital safeguard for those wrongfully convicted, acknowledging the state’s responsibility to rectify miscarriages of justice. While its application is discretionary, this provision offers a crucial avenue for recompense and vindication. To fulfil its purpose, courts must exercise this discretion judiciously, considering the severity of the injustice and the individual’s suffering. Ultimately, Article 14(7) underscores Ghana’s commitment to justice and human rights, providing a measure of relief for those who have endured the unimaginable – imprisonment for crimes they did not commit. Effective implementation is key to upholding this constitutional promise.

God bless!