PLEA BARGAIN LAW IN GHANA – WHAT DOES IT MEAN TO YOU?

Ghana recently passed a plea bargain law. This was actually an amendment to the criminal and other offences procedure act in order to allow for plea bargain to happen during trials. This Article seeks to shed some light on the relevant portions of this law and what it means to the ordinary citizen.

 

First of all, what is a Plea Bargain? This can be explained as a procedure that allows the state (prosecutor) to negotiate with an accused person who is willing to admit guilt so that a lesser punishment would be given to him instead of the full punishment. It can sometimes lead to the accused walking away free. In other words, this law is about “how to commit a crime and walk home free”. The term “walking home free” here must be used advisedly. The most critical thing here is negotiation. One advantage is that it helps us reduce the number of persons who are sent to prison for offences that could have been resolved.  It also affords an opportunity for the offender to compensate the victim where applicable.

 

Just imagine a domestic violence which happened in a compound house or a community. The victim reports the offender and the offender goes to jail for let’s say 6 months and comes back home. What will be the relationship in the community or the compound house? Your guess is as good as mine. If for example, the offender apologized and compensated the victim, what do you think would happen to their relationship?

 

WHO CAN TAKE ADVANTAGE OF PLEA BARGAIN?

Any person who has been charged with an offence and is standing trail in a court can take advantage of plea bargain.

 

Under the law, when a person decides to come under the plea bargain, he or she must do so with the consent of the prosecutor as well as the victim involved. This means that the prosecutor must agree and the complainant or the person who suffered as a result of the crime must also agree to the bargain.

 

When this agreement is reached, the offense could be reduced to a lesser offence. The prosecution can also decide to withdraw the entire charge altogether and the judge can also decide to give a lesser punishment for the offense which has been charged. A plea agreement may do any of the following;

 

1.     Recommend a sentence or a range of sentences to the Court;

2.     Require the payment by the accused person of compensation to a victim of the offence: or

3.     Require the accused to make restitution but with the prior consent of the victim.

 

Both the accused and the prosecutor can initiate the process for the plea bargain.  But if it is initiated by the prosecutor, then he / she is required to inform the accused of his right to demand a full trial. The reason is that, a plea bargain presupposes that the accused is pleading guilty but only avoiding a harsh sentence which is usually custodial (prison term). A person who believes he/she is innocent does not need to enter into a plea bargain. The entry of plea bargain has the effect of convicting the accused and helping him avoid a prison term or a lower term if any. When you are convicted, you will be subject to all the things that a convict is subject to. For example, if the offence involves dishonesty, you cannot hold certain public offices in the country for some time even though you have not gone to jail. A conviction is always a conviction.

 

The prosecution is also required to serve all disclosures it shall rely on for the case on the accused person before they can conclude on plea bargain with the accused.

 

When an agreement is reached, the prosecutor (state) has to file it in court. The court will also do its due diligence by asking both the accused and the victim relevant questions to satisfy itself that the bargain was voluntary and agreed by all. If the court is satisfied, it can adopt the agreement and sentence / punish the accused according to what has been recommended. The court can also decide to change the recommendation and apply the kind of punishment it deems fit. The court may even ask for the negotiation to be done again.

 

The court also has the power to reject the plea bargain agreement and give reasons why it has rejected it. If a court rejects the agreement, it will order for full trail of the case to begin. When a court rejects the plea agreement, this decision cannot be appealed. But it does not prevent the prosecution and the accused to start a new plea bargain before the same court.

 

If the court should also accept the agreement and give a judgment, that judgment can also not be appealed. However, an accused can apply to set the decision of the court aside for any of the following reasons; the agreement was gotten based on fraud, misrepresentation, undue influence, mistake, duress, illegality incapacity. Some of the terms are explained below for your understanding.

 

 

1.     Misrepresentation – this means one of the parties to the agreement made comments/statements that were untrue and the other party relied on this untruth to agree to enter into the agreement.

2.     Undue Influence – this means one of the parties who has a higher authority or influence used that power to unfairly coerce the other party into the agreement. Usually, it is the prosecution or the police who could do this.

3.     Duress – this means the other party was forced into the agreement and that he/she did not enter into the agreement out of his freewill.

4.     Incapacity – it means one of the parties did not have legal capacity to enter into a valid contract. For example, a person less than 18 years or a person who was not of sound mind at the time of making the agreement.

 

My Criticism

This part allows only the Prosecutor or the accused to apply for the decision to be set aside. It does not contemplate a situation where the victim wishes to apply to set this decision aside and the prosecutor is not interested in doing so. I believe this has the potential of denying a victim the justice he/she deserves.

 

Exceptions

The current law as passed by parliament does not apply to every offence. The following offences are offences that are not legible for plea bargain in Ghana.

1.     Treason or high Treason,

2.     High crime

3.     Rape

4.     Defilement

5.     Genocide

6.     Robbery

7.     Kidnapping

8.     Murder

9.     Attempted murder

10.  Abduction

11.  Piracy

12.  Hijacking

13.  any offence related to public elections

 

My Comment

I believe we should consider adding offenses relating to terrorism since they are getting closer to our boarders.

 

 

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WRITTEN BY

RICHARD NII AMARH ESQ.