The Office of the Special Prosecutor (OSP) has clarified the legal framework surrounding the trial of an accused person in their absence, stressing that strict constitutional thresholds must be met before such a process can commence.
According to an explainer issued by Sammy Darko, the Director of Strategy, Research, and Communications at the OSP, Ghana’s 1992 Constitution permits a trial in absentia under Article 19(3).
The provision states that a criminal trial must take place in the presence of the accused unless the individual “refuses to appear before the court for the trial after he has been duly notified,” or behaves in a manner that makes continuing the proceedings in their presence impracticable.
Mr. Darko emphasised that the process cannot be triggered by the mere filing of charges.
There must first be a formal charge, followed by legal notification.
“The process is more formal,” Darko noted, outlining the necessary steps. After charges are filed, the prosecution must obtain court permission to serve the summons and charge sheet outside the jurisdiction. Once granted, the documents are transmitted from Ghana’s Attorney-General to the competent authority in the foreign country, where local officials must personally serve the accused. Proof of this service must then be returned through the same channels and filed in court.
This procedure directly impacts the ongoing case involving the former Finance Minister, Ken Ofori-Atta, and nine others, who face 28 counts of corruption and corruption-related offences in the Strategic Mobilisation Limited (SML) case.
State prosecutors have already obtained court approval to serve Mr. Ofori-Atta in the United States. The summons and charges were forwarded via Ghana’s Attorney-General to the United States Department of Justice (DOJ).
“At this stage, what remains is proof that the documents have been served on Mr. Ofori-Atta,” Darko explained. He added that Article 19(3)(a) requires the court to be fully satisfied that the accused has actually been served in accordance with the law before he can be deemed “duly notified.”
Once proof of service is filed, the court will grant a reasonable opportunity for the accused to appear. If he fails to do so after proper service, the court may conclude he has chosen not to attend and order the trial to proceed in his absence.
He distinguished this situation from cases where an accused person cannot be located at all, or instances like the trial of Sedina Tamakloe Attionu. In that matter, the trial was already underway when the accused obtained permission to travel and failed to return, meaning notice had already been established.
The OSP further disclosed that the trial of Mr. Ofori-Atta and the other co-accused is currently on hold, awaiting a Supreme Court ruling regarding the OSP’s independent prosecutorial powers.
By: Rainbowradioonline.com/Ghana