Equality of Arms?

Justice is measured on access, transparency, fairness, equality and objectivity – we should also remember participation.

Section 132(2)(c) of the Ghana Criminal Procedure Code, 1960 (Act 30) precludes the right to reply for a Police Prosecutor of less than three years call as a lawyer.

This means if an accused’s Attorney is 1 years call and a Police Prosecutor 2 years – the latter has no right to respond to a legal argument, no case submission or even a bail appeal.

The Ghana Police Service prosecute by fiat, as only the Attorney General has the legal authority to prosecute all criminal matters, pursuant to Article 88(3) of the Constitution

How can it be constitutional that any legislation determines a qualified lawyer has no right to reply to a legal submission on the basis they are a Police officer?

Police Prosecutors can instruct a State Attorney from the Attorney General’s Department to reply on their behalf – but this creates further delay in a criminal justice system where delays of five years are not uncommon.

If the Police are to prosecute they need the tools to be able to do the job. Of course this raises issues of legal training, professionalization, not wearing uniform in court, and indeed, whether they should prosecute at all. As they have the fiat, what is the justification for a law that impedes a a Police Prosecutor’s ability to do the job they are instructed by the State to do?

If the Police are to continue to prosecute, they must not be inhibited by legislation.

I hope repealing this section of the Criminal Procedure Code can be an important first step to further reform in the criminal justice system in Ghana.

Many might say there are other more important issues – but often the views of those who prosecute are well behind in the queue. Whilst legislation can take time – repealing could be quick if there was motivation to do address this imbalance and ensure all are equal before the law – at present the scales of justice are unduly tipped.

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