Speech Delivered On 10th May, 2023 At The Launching Ceremony Of The Public Defenders’ Division Of The Legal Aid Commission By The Acting Director Of The Public Defenders’, Mr. Nelson Mawutor Kporha
Our Honourable Attorney-General and Minister of Justice, Honourable Deputy Attorney-General, other Ministers of State herein gathered. My lords, distinguished members of the Board of Legal Aid Commission, Stakeholders in the Criminal Justice System, Partners and Supporters of the Legal Aid Commission, Members of the Diplomatic Mission, Members of the Ghana Bar Association, invited guests, The Media, Ladies and Gentlemen and all other protocols observed.
By law, the Legal Aid Commission has since 2018 required three functional divisions to be established. These are: the Public Defenders’ Division (PDD)–the Citizen Advisory Division (CAD) and the Alternative Dispute Resolution Division (ADR)The Citizen Advisory Division emphasizes the need to educate the public on the services the Legal Aid Commission can provide. The ADR Division recognizes the importance of alternative dispute resolution in resolving civil disputes before going to Court.
The creation of the PDD has a simple but significant goal: to allow more people who cannot afford counsel to obtain representation from the Government, rather than to represent themselves.
The Access to Justice that the PDD generates is not limited to courthouses and trials. It includes access to a lawyer and legal assistance long before trial in criminal cases commences.
Like in many countries, Legal Aid here continues to work to extend quality legal services such as advice, assistance, mediation, and representation in court. Today’s launching of the PDD is a cornerstone for Ghana’s criminal justice system, and is consistent with that system’s history.
EVOLUTION OF THE CRIMINAL LEGAL AID IN GHANA.
Before Ghana’s independence, judges operating the criminal assizes noted the absence of defence counsel adversely affected the administration of justice Lawyers accepted such cases as a social responsibility to defend those charged with crimes. They handled such cases without charging the fees due them.
This practice of assigning briefs to members of the bar continued after independenceThe Court Act of 1971 (Act 372) provided for the assignment of briefs to a lawyerBar members could get a stipend for such workbut many lawyers declined, treating their work as a duty to the court.
The current Court Act of 1993 (Act 459) allows the Supreme Court, Court of Appeal or the High Court to assign a lawyer to a party in the interest of justice if the party is financially unable to obtain the services of a lawyer of his choiceIn the case of the Circuit and District Courts, the court can assign a lawyer, but only with the prior approval of the Chief Justice. This provision warrants amendment because Circuit Courts also try certain offences which carry significant, mandatory custodial sentences, like High Courts do.
Despite the options, many accused persons still go to trials without counsel. In an adversarial system, with due regard to the low level of education amongst many indigent accused, this is unacceptable and diminishes access to and delivery of justice in Ghana. It is unacceptable having regard to the complexity of the criminal processes.
Pro-bono spirit has been a pillar of legal aid in Ghana and will continue. Members of the Ghana Bar Association continue to accept briefs assigned to them from the commission. We hereby recognize and appreciate their yearly financial support to the Commission.
There are also many Civil Society Organizations rendering criminal legal aid services. such as Pos Foundation, Legal Resource Centre, Fair Justice Initiative, Commonwealth Human Right Initiative which are rendering criminal legal aid services. Above all, the United States has also helped support Ghana’s commitment to efficiently and effectively advise and defend criminal accused who cannot afford counsel. I doff my hat out to them.
In a nation constitutionally committed to fair trial, access to justice cannot be denied the impoverished. Freedom is an illusion if it is limited to those who can afford it. Among the advantages of poor accused being represented by Public Defenders are these:
1. PDD lawyers are experts in criminal law and can rely on not just their own experiences but those of three dozen colleagues around the country also focused on criminal law.
2. Should an accused be convicted after trial, PDD lawyers are experienced at fighting for lesser sentences and preparing for appeal, if appropriate.
3. Public Defenders are in a better position to perform all other post-trial functions such as applications for pardon and parole
4. For those cases where early discussions under the new plea-bargaining law prove fruitful, Public Defenders may help reduce unnecessary trials, reduce jail and prison sentences, and leave more clients confident about the results of their cases.
Achievements and Challenges
To note recent history of the PDD, last year, with the approval of the LAC Board, 37 of the LAC’s 51 lawyers were selected to work exclusively in defence of criminal cases on behalf of indigent accused. For the year 2022 the division received 1764 new criminal cases, or about 47 % over the 2021 tally.
Such achievements came from 37 PDD lawyers, a sparse number for a country the size and population of Ghana. Out of the 261 Metropolitan, Municipal and District Assemblies, Legal Aid offices can only be found at Forty-Four (44) districts. There is therefore continued need for more lawyers to be recruited by the Commission if the long-term object of the Public Defenders’ Division is to be achieved.
To be clear, there is no debate about what the law is: the Legal Aid Commission Act of 2018 has declared the national legal priorities for a Public Defenders’ Division and to provide criminal legal aid to indigent accused. The PDD and its lawyers stand ready to help these national priorities be realized, and we look forward to working with law makers, the judiciary and other stake holders in the criminal justice sector to do so.
Likewise, few have challenged the old English legal obligation, that “it is far better that ten (10) guilty men go free than one (1) be wrongly convicted”. It is most unjust that an innocent person gets convicted due to lack of representation whilst the guilty person goes free-because he was able to afford legal representation at the trial or earlier. With the implementation of the provisions of the Act on Public Defenders the Government of Ghana would both prosecute and defend its citizens. There would be no contradiction in policy if we both see ourselves as necessary partners for the pursuit of justice and protection of public good.
We need to see that the prosecution of persons who do harm is mainly driven by the pursuit of public good to ensure safety, peace and security. The state attorneys and other prosecuting officers are not vengeful vigilantes, but impartial officers of the state. So also, are Public Defenders. We are not activists for promotion of criminality but advocate presenting the best defence possible for our clients. We are driven by the fairness of due process which includes the exercise of mercy and compassion.
As a public institution we as Public Defenders are committed to serve the public with integrity. In a fair and compassionate manner, we shall pursue justice for the ordinary man.
THANK YOU FOR COMING, AND FOR YOUR CONTINUED SUPPORT OF EQUAL JUSTICE FOR POOR AND RICH ALIKE AND GOD BLESS OUR HOMELAND GHANA!!!!