Ghana’s criminal justice system - the case of jury trials

Introduction

Jury trial is an important aspect in Ghana’s criminal justice system. It was introduced into the country by the British colonial administration in 1874 with the passage of the Judicature Act. In Ghana, jury trials are used for trials on indictment that is, cases where punishment is either death or life imprisonment. Some of these cases include murder, armed robbery, manslaughter, rape and maritime piracy. Though this system is “outdated” , it is necessary because it allows an unbiased group of one’s peers to decide the fate of an accused person, instead of a judge, thereby minimizing state oppression. However, in the last decade, some challenges experienced by this system have led some stakeholders to advocate for its abolishment, while those who argue for it be maintained called for reforms.

How the jury trial system works in Ghana

In order for criminal trials in Ghana to be fair, the 1992 Constitution makes provision for a jury trial. It further provides the kind of verdict, which largely depends on the nature of punishment. This is contained in Article 19(2)(a) of the Constitution which states that;

A person charged with a criminal offence shall in the case of an offence other than high treason or treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury and where the punishment is death, the verdict of the jury shall be unanimous; and in the case of life imprisonment, the verdict of the jury shall be by such majority as Parliament may by law prescribe.

It is worthy to note that though jurors are not involved in sentencing, their main responsibility is to determine whether a defendant is guilty of the offence for which s/he is charged with, based on the evidence presented in court, while the judge directs them as to which law to apply for each trial. In this case, if the judge fails to direct the jurors on the law to apply for a particular trial, they are bound to come out with a wrong verdict.

Who is eligible to be a juror?

Any Ghanaian citizen resident in the country between the ages of twenty-five (25) and sixty (60) who can understand the English language, qualifies to become a juror. A person qualified as a juror shall be disqualified where that person has been convicted of treason or felony or an offence involving dishonesty unless that person has been pardoned under article 72 of the Constitution 1992.

Persons exempted from being members of a jury

Section 207 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) Act 30 provides a list of persons exempted from jury services. They include the President, the Vice-President, the Speaker and Members of Parliament (MPs), judges, magistrates, legal practitioners in actual practice, all court officials, registered medical practitioners, prison officers and warders, police officers, officers and other members of the Armed Forces on full pay, religious leaders, editors of daily newspapers, schoolmasters actually engaged in teaching in a school, diplomatic and consular representatives and the salaried functionaries of foreign governments, among others.

How are jury members selected for a case?

Section 209 of Act 30 provides that a District Magistrate compiles a list of persons residing within four miles of the town in the district in which the session will take place or within the area specified by the Minister by order published in the Gazette. Also, a person may notify the District Magistrate in writing to have his/her name added or struck off the list made by a District Magistrate on cause duly assigned in the notice. This list is compiled every May and November, and any other date authorized by the Chief Justice.

In the formation of a jury panel, members are randomly selected from the list prepared by the District Magistrate. Unlike England and Wales where a jury panel is composed of twelve (12) individuals, jurors in Ghana are seven (7) for a particular case. Also, Section 253 of Act 30 provides that a foreman is appointed among the jurors. The Court appoints one if the jurors fail to appoint any in a reasonable time. Questions from the jurors are relayed to the Court through the foreman, who liaise between the court and the jury panel , and also announces the panel’s verdict.

It is also important to note that the law makes provision for a peremptory challenge. Section 250 of Act 30 gives an accused the right to oppose the selection of some of the jurors. In this instance, the accused can oppose 3 of the jurors selected without cause, but in the subsequent challenges, Section 251 requires that s/he provide reasons for exempting those jurors. These reasons may range from the potential juror’s presumed partiality, physical disability, being an ex-convict or his/her inability to understand the English language. After a potential juror has been challenged and excluded from participating in the trial during this process, another individual is selected to join the remaining jurors.

Challenges facing the jury system in Ghana

The challenges facing the jury system have led some stakeholders to call for its abolishment. The late Emmanuel Owusu Ansah, a former Deputy Attorney-General and former MP for Kwabre, noted that since the system is relied on by other Commonwealth countries to determine criminal cases, he wondered if it was the system that was bad or there was a problem with some of the jurors.

One of these challenges is the incompetence of some jurors. According to Justice Kosi-Kaglo - a High Court judge in Koforidua, capital of the Eastern Region, some accused persons were wrongly convicted due to some jurors’ incompetence. He observed that the low literacy rate among some jurors affected their understanding of cases in court, hence passing wrong verdicts. This comes as no surprise as members of several professional bodies, who are mostly highly educated, are excluded from serving as jurors. This thereby leads to the wrong conviction of an accused since by law, judges must pass judgement based on jurors’ final verdict. It has been observed that most of these jurors are low-rank staff who were semi-illiterate and could not properly understand the English language - a main requirement for eligibility. Some of them included messengers, typists, drivers, forest guards and security officers.

In addition, some jurors experience “juror fatigue”, making them ineffective during an ongoing trial. This can be linked to the engagement of these jurors in other trials at the same period. Similarly, some judges acknowledge that court proceedings are affected when jurors sit in trials over long periods. For example, Justice Henry Kwofie, a High Court judge, revealed that it was common for jurors who sit over long periods to disregard evidence presented to the trial at the proceedings’ early stages.

Frequent delays associated with the delivery of verdict of jury trials has also been a challenge facing the system. A senior lecturer at the University of Cape Coast, Julia Selman Ayetey, links this dire situation to the absence of some jury members during trial, which leads to trials being adjourned. The continuous absence leads to the juror being replaced or the entire panel discharged, with a new jury formed. Even if the trial is well advanced, Section 257 of Act 30, requires the trial to start anew with these new developments. This leaves parties - victim’s family, accused, court and society, to the trial frustrated.

Another challenge facing the jury system in Ghana is the poor treatment of jurors by the state. This include meagre allowance paid them, which are sometimes not paid on time, and also offered little protection. For example, in July 2012, jurors at the Kumasi High Court withdrew their services over failure of the judicial service to pay their sitting allowance. Also, between March and April 2013, jurors in Koforidua and Cape Coast threatened to boycott court proceedings since they had not been paid their required allowance which had been in arrears for several months. This eventually prolongs criminal proceedings, and according to the former president of the Ghana Bar Association (GBA), Mr. Benson Nutsukpui, the poor treatment of jurors makes them “susceptible to influence by accused persons and their relatives” .

Recommendations

Broaden the pool of jurors to include more educated individuals, as this could address the common criticism of jurors being incompetent and illiterate. This can include the invitation of persons in the private sector for jury duties as it has been observed they are being excluded by some District Magistrates.

With regards to jurors sitting on a case over extended periods, intermittent breaks could be introduced to allow them come back to sittings being refreshed. This can help jurors not lose track of proceedings since they did not go through the same training as judges and lawyers.

The current law, Act 30, needs to be amended to allow the continuation of trial with the available jurors when a member is absent, as practiced in other “common-law” countries. In England and Wales where twelve persons form a jury for instance, the trial can proceed even if nine members are present.

Lastly, the welfare of jurors needs to be well-catered for. For example, paying them on time and providing them with adequate security in order to minimize the public influencing their decisions.