I have a right to remain silent and not to incriminate myself, whether voluntarily, during arrest or in a criminal trial. These are provided for by:

Article 19(10) of the Constitution 1992 reads, “No person who is tried for a criminal offence shall be compelled to give evidence at the trial”; as well as

Section 97(1) of the Evidence Act 1975 (NRCD 323) provides that, “In any proceedings, a person has the privilege to refuse to disclose any matter or to produce any object or writing that will incriminate him.” 

But I also have a civic duty under Article 41 of the Constitution 1992 to report corruption and other crimes, and a legal duty under Section 25 of the Criminal Offences Act, 1960 (Act 29) not to shield or protect a criminal from lawful arrest or serving their jail term.

Others may, I cannot

A criminal is one who has been convicted of a crime. A person who has committed a crime but has not been arrested, charged, prosecuted and convicted, will not be legally referred to as a criminal. Some people can actually report other persons suspected of committing the same crime they have previously committed themselves and got away with, and have those persons arrested, charged, prosecuted and convicted.

But how many people who have committed a particular crime before and got away with it, can actually report other people who commit the same crime? Even NPP MPs who are supposed to be lawmakers are refusing to name a businessman who they themselves have publicly accused of committing the crime of attempted bribery, in clear violation of Section 25 of Ghana's Criminal Offences Act, 1960 (Act 29) which reads:

"Whoever, knowingly or having reason to believe that any person has committed or has been convicted of any crime, aids, conceals, or harbours such persons, with the purpose of enabling him to avoid lawful arrest or the execution of his sentence, shall be guilty of a misdemeanour."

For people with conscience, the Bible says in 1 John 3:20 (NKJV), “For if our heart condemns us, God is greater than our heart, and knows all things.” However, while people know the law and know their civic duties, I wonder how many people who have guilt on their conscience will muster any courage to report corruption and other crimes to make society better.

And I struggle to appreciate the philosophical foundations of the Constitution and other laws that on one hand provide us with the right to remain silent and not to self-incriminate (or plead the 5th Amendment, in the case of the United States of America), while encouraging us on the other hand to report a crime committed or about to be committed by other people through the Whistleblowers Act, or through a Plea Bargain agreement - whether via the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) or Office of the Special Prosecutor Act, 2017 (Act 959).

In the case of the Whistleblowers Act, the focus is on getting protection for blowing the whistle on the crime of other people. As the preamble reads, it is “AN ACT to provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of OTHERS.” (Emphasis mine).

The Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) is quite straightforward on plea negotiations: “162A. (1) Subject to 162B, a person charged with a criminal offence may at any time before judgment, negotiate with the Attorney-General for a plea agreement.” It simply deals with a person charged with a criminal offence.

For the Office of the Special Prosecutor Act, 2017 (Act 959), plea bargain is available under Section 71(1) and provides that:

A person under investigation or charged with corruption or a corruption-related offence may voluntarily

(a) admit the offence and make an offer of restitution; or

(b) admit the offence and offer to provide information that will aid in the arrest and prosecution of other persons whom that person knows have committed or are about to commit corruption or a corruption-related offence.

(2) Where a person under investigation or charged with corruption or a corruption-related offence under this Act makes an offer to provide information in accordance with paragraph (b) of subsection (1), the information shall be provided confidentially to the Special Prosecutor and the Court.

(3) Where an accused person makes an offer of restitution, the Special Prosecutor

shall consider if the offer is acceptable to the prosecution.

The question is, would a person not under investigation or charged by the OSP voluntarily report other people to the OSP when they cannot be sure if their offer for a plea bargain for their own past crime would be acceptable to the OSP, thus exposing themselves to legal jeopardy?

Rethinking the Law

For some religious people, they believe that once they go for confession or pray for forgiveness for whatever crime they committed, they are forgiven, and their conscience is clear. Such persons may have the courage to start life anew and hence be able to report others who commit similar crimes to protect the interest of the State. However, not everybody is religious and not everybody is so civic-minded as to forego their right to not incriminate themselves, in order to rely on a plea bargain to report crimes that they have previously participated in.

I am talking about rethinking the Law to understand that there is a segment of society who by their guilty conscience are held back from reporting or preventing corruption and other crimes. What if the law provides them with a risk-free opportunity to own up to their past, in order to free their conscience to contribute to a better society? Put differently, do our current Laws silence people with guilty consciences and restrain them from helping to fight against corruption and other crimes?

November 20, 2022