ABSTRACT
Criminal Procedure is the adjudication process of the criminal law. While criminal procedure
differs dramatically by jurisdiction, the process generally begins with a formal criminal charge
with the person on trial.1 A person may stand trial being free on bail or incarcerated which can
lead to the conviction or acquittal of the defendant. In criminal procedure, there are some basic
rights which are generally observed and protected. To answer the question ‘do countries
practicing the democratic system protect the rights of the accused’? The basic right of an accused
person has found its way in treaties, human rights conventions and in constitutions of most
democratic states.
This article looks at these rights and how its recognition is global but its practice depends on the
states effort to protect these rights. An abuse of ‘the rights of an accused’ goes a long way to
influence the criminal trial process. These basic rights are enhanced but in practice it operates
differently in different countries. Blackstone William (1769) said ‘the law hold that it is better
that 10 guilty persons escape, than that 1 innocent suffer’.
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Criminal procedure(Definitions.net STADS4
LLC,2022)<https://www.definitions.net/definition/criminal+procedure>accessed 4 May 2022
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Right to equality before the law and the courts.
All persons are equal before the law and the courts. This guarantee is stated in article 19(1) of the
1992 of Ghana: a person charged with a criminal offence shall be given a fair hearing within a
reasonable time by the court.2 This same guarantee ensuring equality before the law is expressed
in Article 26 of the International Covenant on Civil and Political Rights, Article 3 of the African
Charter on Human and Peoples’ Rights, Article 11 of the Arab Charter on Human Rights and
Article 24 of the American Convention on Human Rights.3 Equality before the law refers to
treating all persons equally in the application and enforcement of the law irrespective of the
person’s socioeconomic status, gender, political affiliation, race, religious beliefs and
capabilities. It applies to all public officials including judges, prosecutors and police officers. An
accused person has the right to equality before the law not to be discriminated when standing
trial.
Additionally, criminal proceedings start from a presumption of innocence. An accused has the
right to be presumed innocent, a person charged with criminal offence shall be presumed to be
innocent until he is proved or has pleaded guilty, in Sello v The State, Hayfron-Benjamin CJ said
: if the constitutional presumption of innocence means anything at all, it means an accused
person comes to court under a halo of innocence.4 However, this is not the reality on the ground,
criminal proceedings start from a presumption of guilt and put the onus to prove one’s innocence
2
The constitution of Ghana 1992 Article 19(1)
International Covenant on Civil and Political Rights; African Charter on Human and Peoples’ Rights; Arab Charter
on Human Rights; American Convention on Human Rights
4
Universal Declaration of Human Rights, Article 11, Sello v The State [1978]
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2
on the accused which is unfair. A protection of the presumption of innocence is relates to the
burden of proof. Blackstone’s famous words ‘it is better that ten guilty persons escape than one
innocent suffer’. Therefore, the burden of proof should be on the prosecution to prove the guilt of
the accused rather than the accused to prove his or her innocence.
This right is breached where public officials including judges, prosecutors, the Police service,
and government officials make public statements of the guilt of an individual prior to a
conviction or after an acquittal. This right is protected when public officials avoid making
incriminating statement to the public declaring the accused guilty.
More so, an accused has the right to be informed immediately in a language he understands, and
in detail; of the nature of the offence charged. This right is enshrined in article 14(3)(a) of the
International Covenant on Civil and Political Rights, Article 6(3)(a) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms and Article 19(2)(d) of the
constitution of Ghana(1992).5 A suspect has the right in reference to Article 19(2)(d) to be
informed at the time of arrest of the reasons for his or her arrest and the right to be informed of
the charges against him or her. According to General Comment no. 13 of the United Nations
Human Rights Committee in interpreting Article 14(3)(a) of the International Covenant on Civil
and Political Rights asserts that the information given to the accused person must provide the law
(ie the nature) and the alleged facts (ie the cause).
Subsequently, the accused has the right to remain silent and law enforcement agencies are
obliged to inform the accused upon arrest. Thus in a fair judicial system no person must be
forced to incriminate himself. This principle, which is enshrined in the constitutions of most
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International Covenant on Civil and Political Rights; European Convention for the Protection of Human Rights and
Fundamental Freedoms; The constitution of Ghana, 1992
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states and human rights treaties, must be understood in a wider sense. This means that it should
be impermissible to torture the accused to obtain a confession which would end up as evidence in
the court of law. Every kind of undue pressure exercised to obtain a statement from an accused
person who has expressed his will to remain silent must be deemed illegal.
Furthermore, an accused person has the right to hearing aside enjoying the right to remain silent,
some may want to speak to tell their side of the story which should not be ignored by a fair
judicial system and the criminal case should not be concluded when the accused has not been
given the chance to be heard.
Finally, the accused is permitted to defend himself before the court in person or by a lawyer of
his choice, and be given adequate time and facilities for the preparation of his defence and also
obtain the attendance of witnesses called by the prosecution. He is also permitted to have the
assistance of an interpreter where he cannot understand the language used at the courts which
should not be at his expense, this right is for nationals and non-nationals.6
In conclusion, justice delayed is justice denied. While this statement is true for most legal
disputes, it is becoming the norm in criminal proceedings. It becomes inexcusable when
prosecutors actively delay the process knowing the accused person cannot withstand months of
preliminary detention and other practices to duress needs to be condemned as prosecutorial
misconduct hindering the rights of the accused.
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International Covenant on Civil and Political Rights Article 14(3)(f), The Constitution of Ghana, 1992 Article
19(2)(h)
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Bibliography
Sello v The State [1978]
Universal Declaration of Human Rights (1948) United Nations
International Covenant on Civil and Political Rights, 16 December 1966, United Nations General
Assembly Resolution
Arab Charter on Human Rights, 15 September 1994, League of Arab States
African Charter on Human and Peoples’ Rights 27 June 1981, Organization of African Union
American Convention on Human Rights 22 November 1969, Organization of American States
The Constitution of Ghana 1992
Quansah E K, The Ghana Legal System (Black Mask Limited 2011)
Englerth M. ’10 Basic Rights of Accused Persons in Criminal Proceedings: Liberal International
(2016)
Criminal procedure(Definitions.net STADS4
LLC,2022)<https://www.definitions.net/definition/criminal+procedure>accessed 4 May 2022
Englerth M. ’10 Basic Rights of Accused Persons in Criminal Proceedings: Liberal International
(2016) https://liberal-international.org/what-we-do/events/executive-committeemeetings/marrakech-2016/10-basic-rights-accused-persons-criminal-proceedings accessed 21
April 2022
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