Fair Trial
Introduction:
This note will discuss various constitutional provisions aimed at ensuring the conduct of fair criminal trials. The main constitutional provision for this discussion will be Article 19 of the 1992 Constitution . The discussion is towards achieving the objective in the Course Manual on Criminal Procedure, that the student should know “all the provisions under article 19 of the 1992 constitution and what constitutes fair trial under the article.”
Essence of the Right to Fair Trial:
The right to fair trial has been recognised as one of the basic principles of any civiilised system of justice. In the case of Re Effiduase Stool Affairs (No 2), Republic V Oduro Nimapua, President of the National House of Chiefs; Ex Parte Ameyaw II (No. 2) [1998-99] SCGLR , Acquah JSC advanced that:
For one of the basic principles of any civilized system of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a fair trial to both sides is ensured… This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana
This was quoted with approval in Republic v. Baffoe-bonnie and Others [2018] GHASC 40 (7 June 2018) . In that case, Adinyira JSC observed that:
The right to a fair hearing is a jus cogens, a peremptory norm of general international law, which is defined in Article 53 of the Vienna Convention of the Law of Treaties as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general law having the same character.
Adinyira further added that the objective of the right to fair trial in Article 19 is “to ensure, through a broad definition of the concept of fair trial, effective and complete protection of this human right.”
1. Right to Fair Trial Under the 1992 Constitution:
The right to fair trial is provided under Article 19(1) of the 1992 Constitution , which reads:
A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court
What amounts to a “fair hearing”? This was answered in the case of Aboagye v. Ghana Commercial Bank Ltd. 2001-2002 SCGLR 797 . In that case, the appellant was dismissed by the respondent without a hearing. The Supreme Court of Ghana, in deciding the appeal, stated that the provision in Article 19(1) (supra) on fair hearing reflects the natural justice rule of audi alterem partem, which
requires that notice of proceedings be given to the person affected by any decision of the adjudicating authority and that he be given the opportunity to defend himself.
This understanding finds support in Article 19(2)(f), which provides that a person charged with a criminal offence shall “be permitted to defend himself before the court in person or by a lawyer of his choice.” Before a person charged with a criminal offence can fully defend himself, he needs to fully understand the language used at the trial. Consequently, Article 19(2)(h) provides that the person charged can have the assistance of an interpreter if he does not understand the language used at trial; and this facility should not come at any cost to the person charged.
What amounts to within a “reasonable time”? This was answered in the case of Dogbe v. The Republic [1976] 2 G.L.R. 82. In that case, the court cited with approval the case of Hick v. Raymond and Reid [1893] A.C. 22, where Lord Ashbourne advanced that:
It is obvious that ‘reasonable’ [time] cannot mean a definite and fixed time. It would not be ‘reasonable’ if it was not sufficiently elastic to allow the consideration of circumstances, which all reason would require to be taken into account.
In that same case, Lord Watson observed that:
The condition of reasonable time has been frequently interpreted; and has invariably been held to mean that the party upon whom it is incumbent duly fulfills his obligation, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control, and he has neither acted negligently nor unreasonably.
Lord Herschell L.C. also advanced that:
I would observe, . . . that there is of course no such thing as a reasonable time in the abstract. It must always depend upon circumstances . . . the only sound principle is that the ‘reasonable time’ should depend on the circumstances which actually exist
In view of these submissions by the learned law lords, the court, in Dogbe v. The Republic (supra), proceeded to define “reasonable time” as:
Such period of time the duration of which may be fairly conceded by any reasonable person having regard to the purpose for which the time is required , the nature of the act or duty to be performed and all the attendant circumstances reasonably existing or anticipated or supervening.
This characterisation was cited with approval in the case of Brefo v. The Republic [1980] GLR 679. The requirement to consider the purpose for which the time is required in determining what amounts to a reasonable time, leads to the conclusion that what amounts to a “reasonable time” is determined on a case-by-case basis. For example, a murder trial involving multiple defendants pleading ‘not guilty’ is likely to take significantly longer than a theft trial where the accused has entered a guilty plea.
2. Trial by Jury in Certain Cases:
In Article 19(2)(a) of the 1992 Constitution, it is provided that:
2. A person charged with a criminal offence shall
a. 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-
i. where the punishment is death, the verdict of the jury shall be unanimous; and
ii. in the case of life imprisonment, the verdict of the jury shall be by such majority as Parliament may by law prescribe;
The offences of treason and high treason are tried by the High Court duly constituted by three justices; and the decision of the court shall be unanimous, per Article 19(2)(i).
3. Right of an Accused to be Presumed Innocent Until Proven Guilty:
In Article 19(2)(c), it is provided that
A person charged with a criminal offence shall-
c. be presumed to be innocent until he is proved or has pleaded guilty.
This provision has been interpreted in the cases of Gorman v. The Republic [2003–2004] 2 SCGLR 784 , Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2) and Asante v. Republic [2017] GHASC 3 (26 January 2017) .
In the case of Gorman v. The Republic (supra), the Supreme Court stated that the presumption of innocence in Article 19(2)(c)
Primarily addresses the due process issue of burden of proof or of
In the opinion of their lordships, this presumption is “enjoyed equally by the accused held in pre-trial detention as well as the accused granted bail.” Thus, once a person has been arrested in connection with a crime, he is presumed to be innocent, whether he is held in custody pending trial or granted bail pending trial.
Further, their lordships clarified that the presumption of innocence in Article 19(2)(c) does not import an automatic right to bail, as contended by the appellants. They added that if any article in the 1992 Constitution was to be said to contain a presumption of bail, it would be Article 14(4), which embodies a duty to grant bail when the accused is not tried within a reasonable time.
The presumption of innocence received a more thorough interrogation in the case of Kpebu No. 2 (supra). In that case, the plaintiff invoked the original jurisdiction of the Supreme Court for a declaration that Section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which provides that the court shall refuse to grant bail in a case of treason, murder, robbery, rape and defilement among others, was contrary to Article 19(2)(c) and, therefore, unconstitutional. Among others, the plaintiff argued that “innocent until proven guilty" is a cardinal principle in criminal law. This presumption is not rebutted unless a person has been pronounced guilty of an offence or has entered a plea of guilt. Before the presumption is rebutted, a person should not be punished by being kept in jail. What section 96(7) does is that it condemns persons suspected of committing certain crimes to suffer, and this is contrary to the presumption of innocence until proven guilty in Article 19(2)(c). The Supreme Court of Ghana, speaking through Benin JSC, explained the meaning of this principle as contained in Article 19(2)(c) as follows:
Article 19(2)(c) of the constitution gives a suspect under investigation or an accused on trial the benefit that he is innocent until the court has found him guilty after a hearing or following a plea of guilt. The grant of bail is one of the tools available to the court to ensure that a suspect or an accused, as the case may be, is guaranteed his innocence until the court has found him guilty. The presumption of innocence embodies freedom from arbitrary detention and also serves as a safeguard against punishment before conviction. It also acts as a preventive measure against the State from successfully employing its vast resources to cause greater damage to a person who has not been convicted than he can inflict on the community. Therefore, in my humble view any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision which guarantees his innocence until otherwise declared by a court of competent jurisdiction.
In the more recent case of Asante v. the Republic (Supra) , the Supreme Court again stated that:
Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it.
Summarily, the presumption of innocence has the effect of placing the burden of proving the guilt of the accused beyond reasonable doubt on the prosecution. If there is any reasonable doubt that the accused is guilty, the accused will be acquitted.
It is essential to note that there is a limit placed on the presumption of innocence by Article 19(16)(a). This exception is to the effect that the accused may, at some point, be required to prove a particular fact, and such a requirement will not be inconsistent with the presumption of innocence. The clause reads:
Nothing in, or done under the authority of, any law shall be held to be inconsistent with, or in contravention of, the following provisions –
a. paragraph (c) of clause (2) of this article, to the extent that the law in question imposes upon a person charged with a criminal offence, the burden of proving particular facts;
4. Right to be Informed of the Nature of the Charge:
In Article 19(2)(d), it is provided that:
A person charged with a criminal offence shall-
be informed immediately in a language that he understands, and in detail, of the nature of the offence charged;
This provision was subject to discussion in the case of The Republic v Ernest Thompson Criminal Appeal No. J3/05/2020 . In that case, the respondent was charged with several counts of conspiracy and wilfully causing financial loss to the state. He contended that contrary to Article 19(2)(d), the charge sheet did not reveal the details of the acts and/or omissions which provide the basis for the offences in respect of which he has been charged. For instance, count one was as follows:
“Count One
Statement of Offence
Conspiracy to commit crime namely, Wilfully Causing Financial Loss to the State contrary to Sections 23(1) and 179A (a) of the Criminal Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer between September 2013 and January 2014 in Accra in the Greater-Accra Region agreed to act together with a common purpose to wilfully cause financial loss to the State.”
The High Court was of the opinion that the charges as laid contained adequate and reasonable details and particulars to enable the accused persons appreciate the nature of the charges brought against them. On appeal, the appeal was allowed and the prosecution was directed to amend the counts in the charge sheet and provide additional details. The prosecution appealed to the Supreme Court, which took the opportunity to interpret Article 19(2)(d). In the opinion of their lordships,
The plain meaning of Article 19(2)(d) of the Constitution clearly is that a person charged with a criminal offence must be informed, “in detail” of the nature of the offence charged. The words “in detail” appearing in the constitutional provision emphasizes the extent of information required for purposes of complying with the said constitutional provision.
The court noted that this provision was similarly commented on by Kpegah JSC in Osei Kwadjo II Vs. The Republic [2007-2008]2 SCGLR 1148, where his lordship said:
“...the comma before the “and” makes the “and” disjunctive and clearly indicates that the person charged must not only be immediately informed of the nature of the offence in a language he understands, but also “IN DETAIL.”
In light of this understanding that the person charged must be informed of the nature of the offence in detail, their lordships concluded that the charge sheet did not contain the required level of detail to enable the person charged put up a defence. It is the court’s view that:
What the prosecution merely does is to repeat the definition provided for in the statute as the particulars.
…
In the instant case, from an examination of the charge sheet, it is clear that there is simply no difference between the statement of the offence and the particulars of the offence in the manner in which the two are formulated by the prosecution. One wonders how the Respondent (as the Director General of SSNIT) together with the third accused person who is the Chief Executive Officer of a company which did business with SSNIT agreed to act together with the third accused person to cause financial loss to the Republic.
The point I have made is better illustrated by the following question; from what facts is the Respondent to know how he agreed to act together with the second and third accused persons the result of which is prohibited by the offence of conspiracy?
Thus, merely repeating that the person charged agreed to act together with another person to commit a crime does not amount to informing the person charged of the nature of the offence in detail.
The essence of the provision in Article 19(2)(d) was captured in the case of Derick Adu-Gyamfi V. The Attorney-General Writ No. J1/18/2022, where the Supreme Court of stated that:
Indeed, without knowledge of the offence allegedly committed, it will be impossible for the accused to put up a defence unless he was arrested whiles committing the crime; even then, it is a demand of the Constitution that the accused be told of the offence for which he is standing trial.
5. Right of an Accused to be Given Adequate Time and Facilities for his Defence and Right of an Accused to Defend Himself or by a Lawyer:
In Article 19(2) (e) and (g) , it is provided that:
2. A person charged with a criminal offence shall-
e. be given adequate time and facilities for the preparation of his defence;
g. be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution;
These provisions were interpreted by the Supreme Court in the case of Republic v. Eugene Baffoe-Bonnie And 4 Others (2018) 123 GMJ 250 SC. In that case, the court purposefully interpreted “facilities” as follows:
Resources, or means, which makes it easier to achieve a purpose, an unimpeded opportunity of doing something, favourable conditions for the easier performance or doing of something. Its verb ‘to facilitate’ means to render easy or easier the performance of doing something to attain a result, to promote, help forward, assist, aid or lesson the labour of one; to make less difficult; or to free from difficulty or impediment.
It then proceeded to interpret “adequate facilities” as used in Article 19(2)(e) as follows:
The duty of the prosecution to disclose to the accused materials in his possession to enable the accused prepare his defence, examination of any witnesses called by the prosecution and securing witnesses to testify on his behalf. He should not be denied something the result of which denial will hamper his defence as it is one of the principles of fundamental justice to ensure that the innocent are not convicted.
The net effect of the above two interpretations, per their lordships, was that the prosecution must make disclosures of relevant materials such as statements made to the police by persons who will or may not be called to testify as witnesses for the prosecution, as well as copies of exhibits and documents that are to be offered in evidence for the prosecution. Even if these materials will not be exhibited by the prosecution, they should be disclosed to the defence because they may assist the accused in his defence, such as the discovery of potential witnesses.
The court, in interpreting the phrase “facilities to examine” as used in Article 19(2)(g) (supra), relied on the interpretation given by the Human Rights Committee of the United Nations in General Comment No. 32. [CCPR/C/GC 32]. Per this, “facilities to examine” is explained to mean:
Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.
They proceeded to hold that the effect of Article 19(2)(g) is that the defence, just like the prosecution, can compel the attendance of witnesses. However, in exercising this power/right, the person charged is to disclose his witnesses to the prosecution so they can be subpoenaed.
A further clarification was provided on Article 19(2)(e) in the case of Gorman v. The Republic (supra). In that case, their lordships of the Supreme Court noted that contrary to counsel’s contention, the right to be given adequate facilities does not mean an accused person should be granted bail for the purpose of preparing his defence with his lawyer. They asserted that if counsel’s argument was accepted, it will mean that:
Whenever an alleged criminal is arrested, he/she must be granted bail upon informing the authorities that he or she needed or wanted to consult with lawyers. There is no reason why the accused person cannot consult with his counsel while in detention; indeed, consultation under such conditions is an established practice. Moreover, the denial of such consultation would be a clear infringement of the Constitution, for which the accused person may petition for a remedy.
6. Right to be Tried in One’s Presence Subject to Exceptions:
In Article 19(3), it is provided that:
The trial of a person charged with a criminal offence shall take place in his presence unless
a. he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or
b. he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.
Thus, as a general rule, a person charged with a criminal offence must be tried in his presence and not in absentia. This rule is subject to exceptions (as seen above). In the case of Bonsu Alias Benjillo v. The Republic [1999-2000] 1 GLR 199 – 236 , for instance, the court applied the exception in Article 19(3)(a) . In that case, the appellant was charged with various narcotics-related offences. Two of the persons charged absconded while on bail and before the commencement of the trial. However, they were tried in absentia. The appellant was convicted and he appealed, contending that the trial of the two persons in absentia rendered the whole trial a nullity. The court noted that the effect of Article 19(3) is that if a person is notified of the charges against him but he fails to appear in court for the trial, the trial can be conducted in his absence. In the present case, the two persons demonstrated by their conduct of absconding that they were not prepared to appear for trial, and that the trial could proceed in their absence.
7. Protection from Ex Post Facto Laws:
In Article 19(5), it is provided that:
A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.
For example, on 15 th December, 2024, Parliament passed the Protection of the Integrity of Waakye Act, 2024 (Act 419), by which it was illegal to buy waakye in a disposable pack. If Kawah bought waakye in a disposable pack on 14 th December, 2024, the effect of Article 19 (5) is that she cannot be charged with the offence of buying waakye in a disposable pack under Act 419, because buying waakye in a disposable pack was not a crime at the time she did the act on 14theDecember, 2024.
The provision in Article 19(5) is further buttressed by Article 107(b),which provides that:
Parliament shall have no power to pass any law-
which operates retrospectively to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 to 182 of this Constitution.
In the case of Shalabi and Another v. The Attorney-General [High Court, Accra] [1972] 1 GLR 259 , the court also described the power to make retrospective laws as being based on the doctrine of legislative omnipotence, which Hayfron J. described as “monstrous”, and advanced that it had been banish from the realm.
8. Limits on the Courts in Imposing Penalties:
In Article 19(6), it is provided that:
No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.
For example, under Act 29, the punishment for defilement should not be more than twenty-five years. While there may be a temptation to impose a harsher sentence, Article 19(6) prevents such imposition.
9. Protection against Double Jeopardy:
In the case of Republic v. Thompson and Others [2014] GHASC 124 (16 January 2014) , the Supreme Court, in characterising double jeopardy, said:
Therefore, once a court has made a finding of guilt or otherwise on the same facts, another court cannot try the same person/s on the same charge. It would amount to double jeopardy.
According to the Black’s Law Dictionary, 9 th ed., double jeopardy is “the fact of being prosecuted or sentenced twice for substantially the same offense.”
In Ghana, there is a protection against double jeopardy in Article 19 (7) which reads:
No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for the offence, except on the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
This provision will be discussed extensively in a subsequent note. For now, see the cases of Ababio v the Republic [1972] 1 GLR 347-354 , Essien v. The State [1965] GLR 44-46, and Republic v. Jinadu, 1948 12 WACA 368.
Also, it is important to take note of the following exceptions to protection against double jeopardy:
1. In Article 19(8), it is provided that “Notwithstanding clause (7) of this article, an acquittal of a person on a trial for high treason or treason shall not be a bar to the institution of proceedings for any other offence against that person.”
2. Where a member of the disciplined force is being tried for a criminal offence after having been convicted or acquitted under the disciplinary law of the force, per Article 19(16)(b) and Republic v. Jinadu, 1948 12 WACA 368.
3. Where the subsequent trial is on the orders of a superior court.
10. Right of an Accused to Remain Silent at his Trial or Protection from Self-Incrimination:
In Article 19(10), it is provided that:
No person who is tried for a criminal offence shall he compelled to give evidence at the trial.
This right was explained in the case of Okyere v Republic 1972 1 GLR 99 . In that case, the court, in commenting on Article 20(10) of the 1969 Constitution , which is similar to Article 19(10), said:
This right, encompassing as it does, the right against self-incrimination, is like all the other fundamental rights important and far-reaching. Although it originated from England as a common-law privilege, several constitutions including that of Ghana, have made it a constitutional right, and clothed it with the same status as other rights, like freedom of religion, and it can no longer be considered as a mere privilege even though usually referred to as such. The Supreme Court of the United States describes this right as “one of the nation’s most cherished principles.” It is no mere rule of evidence or procedure, it is a fundamental principle of liberty and justice.
Further, the court noted that the right requires that the accused is not to be affected by comments, adverse or otherwise, on his failure or refusal to speak by the bench during his trial. In addition, the right prevents a trial judge from inferring guilt from the exercise by an accused person of his constitutional right to keep silent.
11. Principle of No Punishment without a Law:
In Article 19(11), it is provided that:
No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.
This provision was explained in the case of Tsatsu Tsikata v. The Republic Criminal Appeal No. J3/4/2004 . In that case, the appellant was charged with wilfully causing financial loss to the State contrary to Section 179A (3)(a) of the Criminal Code Act 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 1993 (Act 458) . He contended that there was no written law that defined the offence of wilfully causing financial loss to the state in Section 179A (3)(a) (supra), and that the words “loss”, “wilful”, “State” were left undefined in the statutory provision, and that this omission was contrary to Article 19 (11). In dismissing the arguments of the appellant, the Supreme Court of Ghana explained the meaning of Article 19 (11) as follows:
It is our understanding that this provision was meant to outlaw so-called common law and customary law crimes that have not been preserved in statutory law. The framers of the Constitution did not intend to order legislators to supply a lexicon of words within the four corners of each and every piece of legislation that sought to create a crime. The provision requires a written law of crimes, that is, the creation of crimes in a written form; but not, as Counsel puts it, a “written law definition” of all words used in a criminal provision. Not only would such a task prove futile or impracticable; it would also ignore the fact that no statute exists in isolation from the general criminal law of any legal system, in particular, Criminal Codes and the Criminal Procedure Codes which may appropriately be described as forming the beams of criminal jurisprudence. Moreover, the language of the law, though specialized, cannot be self-contained and therefore assumes as its foundation the general language of the country in which the legal system functions. No doubt, many statutes provide what is called intrinsic aid, that is, internal definitions and even examples and scenarios of meanings. But this cannot be done, and is not expected to be done, for each word or term that is deployed in creating a crime. And where no intrinsic aid is provided, the legal system has always resorted to extrinsic aid in the difficult matter of construing or interpreting legislation. Such acceptable extrinsic aid has always included specialized and general language dictionaries.
...
We hold that a criminal provision is not unconstitutional merely because it does not contain intrinsic definitions of all terms used; and we also hold that a resort to both specialized and general dictionaries constitute a time-honoured and acceptable form of extrinsic aids to interpretation in our judicial system.
Also, in the case of British Airways & Another v. Attorney-General [1997-98] 1 GLR 55, the Supreme Court cited the provision in Article 19(11) as forming part of the principle of legality and explained its essence as follows:
The provisions of this Article 19(11) of the Constitution, 1992 (hereinafter referred to as the “article 19 (11) formulation”) is one of the various formulations of the principle of legality underlying the administration of justice in democratic countries.
…
Indeed, before the promulgation of the Constitution, 1992 our Criminal Code, 1960 (Act 29) provided in section 8 thereof, the following: “8. No person shall be liable to punishment by the common law for any act.”
…
Now, by the principle of legality as explained by Granville Williams in his book, Criminal Law, The General Part (2nd ed), the individual must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise, to punish him for breach of that law is purposeless cruelty. Punishment in whatever form it takes is a loss of rights or advantages consequent on a breach of law. When it loses this quality, it degenerates into an arbitrary act of violence that can produce nothing but bad social effects. Opinions about what people ought to do may differ, but opinions about what people are obliged to do must be capable of being ascertained by legal research. This, in brief, is the substance of the principle of legality which is expressed in the Latin maxim nullum crimen sine lege, nulla poena sine lege, that is, there must be no crime or punishment except in accordance with a fixed predetermined law.
…
For the article 19 (11) formulation in effect requires that at every stage of the investigation and prosecution of an offence, there must be a written law creating the offence and prescribing the punishment for it.
An exception to the principle of legality (supra) is provided in Article 19(12), which provides that:
Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed.
12. Fairness, Independence, and Impartiality of Adjudicating Authority:
In Article 19(13), it is provided that:
An adjudicating authority for the determination of the existence or extent of a civil right or obligation shall, subject to the provisions of this Constitution, be established by law and shall be independent and impartial; and where proceedings for determination are instituted by a person before such an adjudicating authority, the case shall be given a fair hearing within a reasonable time.
In the case of Aboagye v. Ghana Commercial Bank Ltd. 2001-2002 SCGLR 797 , the Supreme Court of Ghana, in commenting on this provision and Article 19 (1), stated that:
As can be seen from Article 19(1) and (13) all courts and adjudicating authorities, are required to give a fair hearing, this requires that notice of proceedings be given to the person affected by any decision of the adjudicating authority and that he be given the opportunity to defend himself.
They also asserted that this right to fair hearing is the natural justice principle of audi alterem partem.
13. Right to a Public Trial:
In Article 19(14), it is provided that:
Except as may be otherwise ordered by the adjudicating authority in the interest of public morality, public safety, or public order the proceedings of any such adjudicating authority shall be in public.
However, per Article 19(15), an adjudicating authority can exclude from the proceedings persons other than the parties to the proceedings and their lawyers if:
a. The adjudicating authority considers such exclusion necessary or expedient in circumstances where publicity would prejudice the interests of justice.
b. The adjudicating authority is empowered by law to exclude other persons in the interest of defence, public safety, public order, public morality, the protection of the private lives of the parties and the welfare of persons below eighteen.
14: Limits of what amounts to a Criminal Offence:
In Article 19(21), it is provided that “For the purposes of this article "criminal offence" means a criminal offence under the laws of Ghana.”
The above provision means that where an act is not criminalised under any Ghanaian law, that act is not considered a crime in Ghana; and a person cannot be held criminally liable for engaging in that act no matter how detestable or morally reprehensible it may be in the eyes of society.