The pillars of free legal services to the poor and vulnerable or indigent Ghanaians and non-Ghanaian residents are laid in article 294 of the 1992
Constitution. Even though legal aid had been in existence since 1987 by reason of Legal Aid Scheme Law, 1987 (PNDCL 184) it was the clause 2 and 3
of article 294 of the Constitution which taking into account the centrality of legal aid to the provision of access to justice for all persons in Ghana, that
Parliament enacted the Legal Aid Scheme Act, 1997 (Act 542). This Act was passed to ensure the effective operation of the scheme in consonance with the
In 2018, in order to fully equip the scheme as the leading public institution delivering professional and quality legal services to the poor in society, a new
Legal Aid Commission Act of 2018 (Act 977) was passed and assented to by His Excellency, President Nana Addo Danquah Akuffo on 13th September,
2018. The new act establishes the Legal Aid as a Commission and creates Public Defenders Division as one of the three (3) major divisions of the Commission. The others are the Citizens Advisory Division and the Alternative Dispute Resolution Division (ADR).
FUNCTIONS OF THE PUBLIC DEFENDERS’ DIVISION
The following are the functions of the Public Defenders’ Division:
- To assist persons in need of legal assistance for the realization of the right of equality before the law and for fair trial.
- To act as Public Defender for the realization of article 14 (Protection of personal liberty), article 17 (Equality and Freedom
from discrimination) and article 19 (Fair trial) under 1992 constitution.
- To ensure that a person who is arrested, restricted, detained or accused of an offence is afforded the appropriate legal assistance.
To provide legal aid to persons in police and prison custody.
- To provide legal aid for juveniles and;
- To defend a person who is arrested, restricted, detained or accused of an offence.
- To defend a person accused of a crime who is indicted for the offence the punishment for which is imprisonment for life or who cannot afford the services of a lawyer.
WHO IS A PUBLIC DEFENDER
A public defender is a lawyer, usually holding public office who is appointed to defend accused persons who are so poor and unable to hire a lawyer of their choice. A public defender represents indigent criminal offenders i.e., the poor and vulnerable, women, juvenile’s, remand prisoners, and persons with disability who come into conflict with law. A public defender represents such persons during all phases of the criminal procedure.
JUSTIFICATION FOR THE ESTABLISHMENT OF A PUBLIC DEFENDERS’ OFFICE
As our society has grown in complexity and sophistication, our laws have made many acts illegal regardless of any criminal intention or mens-rea. To
achieve equality before the law, therefore requires that the indigent accused person is provided legal counsel to render opinions on possible criminal
liability for certain desired acts.
1. Under the Public Defenders’ System counsel is made readily available to the accused person upon arrest. It is not uncommon for the wealthy accused person when advised of his right to counsel, to immediately contact his lawyer. The indigent accused persons are not so privileged. Wealthy accused persons get police enquiry bail very quickly after arrest than an accused person without a lawyer at that early stage of the proceedings.
2. A Public Defender can require all the necessary facilities that would enable him to conduct pre-trial investigations by engaging private investigators by contacting document examiners, psychiatrists, handwriting analyst and a host of other expects and they must be reimbursed by the Commission.
3. Public Defenders are experts in criminal law and they devote adequate time an energy to each case.
PUBLIC DEFENDERS’ RESPONSIBILITY
i. Providing legal representation such as consultation and advice
to the indigent accused persons. – (the clients)
ii. Representing clients during criminal investigative proceedings.
iii. Preparing a defense, conducting legal research, gathering facts and
interviewing the clients and witnesses.
iv. Working closely with clients, providing and discussing information,
strategies and developments.
v. Working with other stakeholders in the criminal justice system to achieve
the desired goals.
vi. Preparing legal documents and representing clients in court.
WHO QUALIFIES TO BE REPRESENTED BY A PUBLIC DEFENDEFR
Criminal legal aid may be granted for all criminal cases and at all stages of the criminal proceedings in Ghana i.e., during police enquiry or arrest, during
detention, including pre-trial detention, during trial and during appeal. This is inherent in the constitutional right to fair hearing and protection of personal
We however have to be careful about the cases that the government fund using the taxpayer’s money so that aid is given only in deserving cases.
Some applicants try to give false information in other to meet the eligibility criteria. As a result, the following criteria have been set out to access the legal
aid in criminal cases;
i. As a general rule an applicant indicted for an offence punishable by death or life imprisonment who would suffer substantial injustice is entitled to legal aid.
ii. Persons who do not have sufficient means to pay for legal services to a lawyer of their choice.
To achieve the object of the division two tests are applied. These are the means test and the merit test.
A. THE MEAN TEST
1. A legal aid applicant in a criminal matter who has a net monthly income, after deduction of tax of the minimum government wage or less may qualify for legal aid in respect of that criminal case regardless of whether the applicant has a spouse or a member of a household.
2. A legal aid applicant who is a member of a household who does not own immovable property and has net movable asset of less than Fifty (50) times the government minimum wage in value may qualify for legal aid in a criminal matter.
3. A legal aid applicant who is a member of a house hold that owns immovable properties and has net movable assets in value of up to Two hundred (200) times the government minimum wage in value may qualify for legal aid in a criminal matter but the legal aid applicant or the member of the household must physically reside in the house or in at least one of the immovable properties where there is more than one, unless the Commission decides otherwise.
4. The Public Defenders’ Division may conduct a forensic investigation of the Financial circumstances of the legal aid applicant before legal aid is granted based upon the information provided by the applicant in the Financial affidavits to be deposed to by the applicant.
After legal aid is granted, the application may be revoked if it is found that the applicant has sufficient means to engage the services of a lawyer of his choice.
B. THE MERIT TEST
The test applicable to criminal legal aid is the interest of justice i.e., whether it is desirable in the interest of justice that legal aid should be granted for that criminal matter.
A criminal matter would be eligible for legal aid where the applicant may suffer substantial injustice if legal aid were to be denied. In assessing whether it is desirable in the interest of justice to grant legal aid in a criminal matter the Commission takes into account;
a. The consequences for the applicant if legal aid is not granted.
b. The gravity of the offence.
c. The consequences of the offence- whether the applicant is likely to lose his/her liberty or livelihood or suffer serious damages to his/her reputation.
d. The criminal record of the applicant.
e. Whether the proceedings involved is substantial question of law.
f. Whether there are complex factual, legal or evidential matters that require the determination of a court.
g. Whether the applicant is able to understand the proceedings or state or present his/her own case.
h. The grounds of appeal and i. Any other circumstances that in the opinion of that the division are relevant.