Ghana’s 1992 constitution guarantees every litigant the right to a fair trial and to be represented by legal counsel of their choice.

This safeguard affirms the right to counsel yet offers no clear remedy where legal representation is so ineffective it leads to the undermining of justice.

Ghana has no legislative framework through which a conviction or judgment may be vacated solely on the grounds of ineffective legal assistance of counsel.

This legislative gap raises the question as to whether the outcome of a case before the courts should rest entirely on the competence or incompetence of counsel.

In answering this question, I intellect on how the Supreme Court of Ghana, in a limited circumstance and with the lens of equitability, initiated a bridging of this gap in the case of The Republic v High Court, General Jurisdiction, Accra; Ex parte Magna International Transport Limited (No 2).

In Ex parte Magna, Magna International Transport Ltd and Ghana Telecommunications Company Ltd were parties to a civil dispute before the high court. Grave lapses were alleged in the handling of the case by counsel, resulting in prejudice to the applicant.

Magna International consequently invoked the Supreme Court’s supervisory jurisdiction, seeking an order of certiorari to quash the high court’s decision.

The central issue was whether grave lapses in legal representation can so compromise a client’s case as to justify the Supreme Court’s intervention.

Matter of substance

The court in Ex parte Magna International reasoned that justice is not merely a matter of form, but of substance, and that where counsel’s conduct or omissions prevent the proper ventilation of a party’s rights, the courts have a duty to intervene.

It further emphasised that the constitutional right to a fair trial would be rendered meaningless if a litigant’s fate depended solely on the competence of his or her lawyer, and that where the incompetence or failures of counsel are so grave that they threaten the integrity of proceedings and risk a miscarriage of justice, the Supreme Court may step in to undo the error.

In granting the application, the court underscored three key principles:

1. A lawyer, as an officer of the court, owes a duty of diligence and competence.
2. A client should not automatically be punished for the neglect or incompetence of counsel, particularly where such lapses undermine the administration of justice.
3. The legal system must balance finality of litigation with fairness to litigants.

This progressive judicial stance notwithstanding, Ghana lacks a legislative framework to govern claims of ineffective legal assistance.

Where a litigant makes a claim of poor lawyering, the only option available is a conventional appeal and this is strictly confined to the record of proceedings.

Such appeals do not permit an inquiry into whether counsel’s ineffectiveness itself distorted the outcome of the case, thus troubling, and demand an answer to the question: where it can be demonstrated that the outcome would have been different but for counsel’s ineffectiveness/incompetence, should that not be grounds for setting aside a conviction/judgement and ordering a new trial? A legislative instrument would bring certainty.

In the United States, the Supreme Court in Strickland v Washington 466 US (1984) established a two-pronged test requiring proof of (1) deficient performance and (2) prejudice.

The claimant must show that counsel’s performance fell below an objective standard of reasonableness and that, but for the lawyer’s errors, the outcome would likely have been different.

This framework has since been refined and applied in cases such as Padilla v Kentucky 557 US 356 (2010), particularly in the context of criminal and immigration consequences.

The Supreme Court of Canada adopts a similar approach. It was held in R v GDB that appellate intervention is warranted where counsel’s incompetence results in a miscarriage of justice by undermining the reliability of the verdict.

South Africa’s jurisprudence, as reflected in S v Tandwa and S v Halgryn, recognises that an accused person is generally bound by counsel’s conduct.

However, where representation is so grossly incompetent that it renders a trial unfair or results in a failure of justice, appellate courts may vacate a conviction.

Nigeria’s appellate courts likewise require proof that counsel’s errors occasioned a miscarriage of justice before disturbing a conviction.

Ex parte Magna demonstrates that Ghana’s Supreme Court is willing to intervene to prevent injustice. However, judicial discretion alone is not enough. Without a codified framework, outcomes remain unpredictable and dependent on exceptional circumstances.

Ghana needs an Ineffective Legal Assistance of Counsel Act that defines ineffective assistance, tailored within Ghana’s constitutional context, which would establish clear procedural pathways and provide for remedies.

Such a law should articulate standards of performance, outline how claims are to be raised and proven, and provide flexible remedies, including retrials or stays of execution where appropriate.

By Jonathan Balinia Adda, Esq.,

Houston, Texas.