Criminal Jurisprudence in Ghana

I have done a number of episodes on the subject on my weekly legal clinic, THE LAW on JoyNews, in the last five years. Plea bargaining is no alien transplant into Ghana’s justice system. Even under the Courts Act, 1993 (Act 459), judges routinely reviewed plea deals as regulated by Section 35 of that law, though the legal framework remained skeletal.

Subsection (1) provides that “Where a person is charged with an offence before the High Court or a Regional Tribunal, the commission of which has caused economic loss, harm or damage to the State or any State agency, the accused may inform the prosecutor whether the accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.”

Subsection (5) fettered judicial discretion in handing down custodial sentences in the following terms: “Where the Court considers the offer to be satisfactory, the Court shall accept a plea of guilty from the accused and convict the accused on his own plea, and in lieu of passing sentence on the accused, make an order for the accused to pay compensation or make restitution and reparation.”

This shows that plea deals were not imported but have long existed in Ghanaian jurisprudence, albeit in a limited form. True statutory formalisation began incrementally. The Office of the Special Prosecutor Act, 2017 (Act 959) was the first piece of legislation to explicitly mention plea bargaining, affirming its legitimacy in corruption prosecutions. However, it was the passage of the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) that provided comprehensive procedural detail, codifying defendant rights, disclosure thresholds, victim consultation protocols, and rigorous judicial safeguards.

Globally, negotiated justice is deeply entrenched. In the United States, plea bargains reportedly account for over 90% of all criminal convictions. Its mainstream utility is clear across all tiers of the legal system; even high‑profile corporate entities, such as the Donald Trump Organisation, have entered into plea deals in financial crime cases. This underscores that negotiated settlements are a vital tool of modern state prosecution, not a mechanism reserved exclusively for minor offences.

What’s in it for the State or Victims?

The statutory introduction of plea bargaining serves several vital institutional and social purposes. Primarily, it maximizes systemic efficiency. Because trials are inherently costly, labour‑intensive, and lengthy, plea deals preserve vital judicial time and taxpayer resources. They also provide prosecutorial certainty, securing definitive convictions while avoiding the inherent unpredictability, evidentiary technicalities, and risks of a prolonged trial.

Furthermore, the process facilitates expedited restitution, allowing victims of crime to receive direct compensation or asset recovery much faster than they would following years of standard litigation. From a rehabilitative standpoint, it supports proportionality, giving accused persons an incentive to take immediate legal responsibility in exchange for reduced charges or sentences, balancing state deterrence with judicial fairness.

Importantly, as also provided in the OSP Act, plea deals may not only assist the state to retrieve money that could otherwise be lost through a full trial that may lead to acquittal or only jail time, but they may also help prosecutors secure better evidence against syndicates or gangs, and even cooperation from witnesses who may have participated in the alleged crime. This strategic value is often overlooked in public debates. Imagine the recoveries the state would have made in the botched €2.4 million ambulance trial and the others terminated by withdrawal or nolle prosequi after seven or so years of investing state resources in prosecutions.

The Procedure under Act 1079

The 2022 Amendment ensures that the negotiation process follows a strictly regulated, transparent path that begins with initiation and notice under Section 162C. Negotiations can be formally proposed by either the prosecutor or the defence counsel, requiring a formal written notice to the court, which may grant an adjournment of up to thirty days to conclude terms.

Before any agreement can be finalised, Section 162D mandates pre‑trial disclosures, meaning the prosecutor must serve the defence with all vital case documents, witness statements, and exculpatory evidence to ensure fair and transparent negotiations. This is accompanied by victim consultation under Section 162E, where the prosecutor must inform the victim or complainant and allow them to make formal representations; victims who object can file a written statement detailing their grounds directly for the court’s consideration.

Finally, under Sections 162G and 162H, the signed agreement undergoes strict judicial oversight where the judge must examine the accused personally under oath to verify that they are of sound mind, acting voluntarily, and fully understand they are waiving their rights to a full trial and appeal.

Public Misconceptions

Critics frequently argue that plea bargaining emboldens wrongdoing or provides an escape hatch for corruption, particularly when the Attorney‑General considers a plea proposal in high‑profile matters. It has just emerged that an accused has approached the AG in the state’s case against Bernard Antwi‑Boasiako (alias Wontumi) and two others. This concerns the Ghana Export‑Import Bank (EXIM Bank) fraud case.

The view that a plea deal does not serve justice is legally misplaced. As seen in the official court filings, the High Court has formally been notified of the commencement of plea negotiations under Section 162C(3) of Act 30. This process does not erase accountability. Instead, it offers a mechanism to guarantee a formal criminal conviction, immediate asset recovery, and state‑sanctioned deterrence without risking a total acquittal at trial on the counts of defrauding by false pretence, uttering a forged document, money laundering, and intentionally causing financial loss to a public body totalling GH₵30,000,000. To view the mechanism as inherently corrupt completely misunderstands its systemic design.

Equally, plea bargaining is not an exclusive luxury for politically exposed persons. Act 1079 applies universally across the criminal justice spectrum. It explicitly excludes only the gravest public and violent offences, such as treason, murder, rape, genocide, and robbery. Ordinary theft, commercial fraud, assault, and juvenile offences are all fully eligible. The statutory tool is designed for institutional efficiency and victim restitution, not political favouritism.

 

The poor man’s crime

In fact, the 1993 Courts Act also provides for settlement or reconciliation in minor criminal cases. Section 73 directs courts with criminal jurisdiction to “promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment of compensation or on other terms approved by the court.”

In practice, the court stays proceedings to allow negotiations, and if settlement is reached, it dismisses the case and discharges the accused. Crucially, the accused does not plead guilty and therefore does not carry the stigma of a conviction or the label of an ex‑convict. This reconciliation mechanism is designed to restore harmony and repair harm without branding offenders permanently, while the plea bargaining often involves a formal guilty plea and conviction, albeit with negotiated terms.

Conclusion

Plea bargaining is a legitimate, heavily codified, and globally accepted instrument of criminal justice. Ghana’s 2022 reforms brought structural clarity, victim inclusivity, and judicial transparency to a practice long recognised under the Courts Act and the OSP Act.

Far from weakening the law, plea deals, when done sincerely and transparently in the public or victim interest, strengthen public accountability by making justice swifter, surer, and fundamentally more responsive to the needs of victims and the rule of law.

Justice is not weakened by plea bargaining; it is made more effective.