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Re: Jakpa-A-G Leaked Tape: Don’t ‘’Hang’’ the Attorney-General; He Did No Wrong in Law

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This article serves a rebuttal to an article earlier authored by a respectable senior Learned Colleague and LLM mate in Kwame Nkrumah University of Science and Technology(KNUST) by name Daniel Korang Esq. as regards the aforementioned caption with respect to ‘’whether or not the Attorney General erred in allegedly seeking to induce Richard Jakpa to testify in his favor’’?

The synopsis of the author’s article which has predicated this rebuttal reiterated that the use of prosecutorial inducements, threats, promises and coercion is an integral part of plea bargaining otherwise also called negotiated plea, settlement agreement, plea negotiation etc, and that the AG committed no wrong in law or professionally. The author proceeded to introduce an alien phenomenal ‘’strategic overcharging’’ which had no basis on the foregoing discussions surrounding the AG’s alleged misconduct hence, would not constitute the focus of this article.

Historical Antecedents of Plea Bargaining in Ghana’s Criminal Jurisprudence

Plea bargaining is a process in criminal trial that offers an accused the privilege to negotiate with the prosecutor on a guilty plea or no contest (nolo contendere) aimed at resolving cases timeously, avoid lengthy trials, provide certainty in outcomes and reduce legal cost. It is common practice in most Common Law countries including but not limited to: the United States, Canada and notably, Ghana.

Plethora of laws endorse negotiated plea in Ghana’s criminal jurisprudence comprising inter alia: Criminal and Other Offences (Procedure) Amendment Act, 2022 (Act 1079), S. 35 of the Courts’ Act, 1993 (Act 459), Narcotics Control Commission Act 2020 (Act 1019), Office of the Special Prosecutor Act 2017 (Act 959). 

Content of this Article

The crux of this rebuttal hinges on the ingredients of negotiated plea in Ghana. Chiefly among the ingredients is voluntariness. Thus, the accused must voluntarily agree to plead guilty. I therefore, found it incongruent with the ethical stance of the Learned Senior Colleague when he posited that the AG could even coerce  Jakpa to obtain more evidence so as to successfully prosecute Atto Forson. Why will the AG run to court to prosecute the accuse without appropriate and sufficient evidence? In fact, supporting the ingredient of voluntariness lies ‘’Free Will’’ which buttresses the fact that the accused must not be coerced or pressured into accepting the plea bargain. 

Another departure on Lawyer Daniel Korang’s analogy of the AG committing no wrong in the said leaked tape has to do with the principle of legal representation by the accused. At the time the AG allegedly met Jakpa, it is virgin knowledge that the latter had no legal representation and was therefore, not fit for purpose to effectively engage in a negotiated plea with the AG especially against the fact that there is an ingredient of knowledge which states that the accused must understand the charges, consequences and the plea bargaining process.

Other ingredients of negotiated plea include: prosecutorial discretion, written and sentencing agreements, disclosure etc.

As to whether or not the General Legal Council has capacity to sanction the AG if he is found culpable in this matter, my Senior Learned Colleague opined in the affirmative which further erected my mental saturation to issue this rebuttal. Of course, the AG is a constitutional officer who provides legal advice to the government and represents the government in all legal matters as ascribed in Article (88) of Constitution 1992. To this end, the General Legal Council (GLC) cannot sanction the AG in the discharge of his Constitutional mandate. However, the GLC is clothed with the mandate to regulate the conduct of lawyers in their professional capacity. Is the AG a lawyer? So long as the AG is a lawyer, he can’t be absolved from discipline by the GLC if he is found culpable. Therefore, in reporting Godfred Dame to the GLC, he must be reported for alleged professional misconduct as a lawyer licensed to practice law in Ghana and not as an AG, discharging his duties under article 88.

In conclusion, I remain antagonistic to the introduction of negotiated plea in the criminal jurisprudence however enormous the merits. Investigators/prosecutors would rely on it under the guise of helping the accused to extort monies further breeding corruption, innocent accused could hurriedly accept plea bargains while the courts could have acquitted them with time. The actions of the Attorney General must be condemned in no uncertain terms as allowance of such alleged unscrupulous tendencies would mean going every length to gather evidence to prosecute an opponent however, unethical it may be. In that case, prosecution would be shortchanged for persecution and everyone would be at risk. 

The chicken eats corn, drinks water and swallows pebbles, yet complains of having no teeth. Would it chew gold if it had teeth (Rotimi, 2002?) If the Attorney General who is well equipped with state apparatus would still need to procure evidence through alleged foul means, what would be the fate of the ordinary lawyer? Da Yie!!!!

By Ephraim Armstrong Awinbugri is pursuing LLM in KNUST


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