Pipeline to prison: How Ghana’s legal system punishes the poor

In August 2015, Kwabena Huletey, a farmer at Mangoase, a village in the Eastern Region, woke up to the lifeless body of his live-in partner. This was a few hours after they had returned from a clinic where they had been told that the woman needed specialist care in a bigger hospital.

They didn’t have money and they were thinking of ways to raise funds to go to the hospital in Koforidua when she passed away. As it was common knowledge that she had been unwell for quite some time, very few in the community would have been surprised or shocked by her death.

“Her family and friends visited, expressed their condolences, well aware that death had been chasing her for a while,” Mr Huletey told The Fourth Estate.

After commiserating with him, however, the family left all the burial and funeral arrangements in the hands of the grieving Mr Huletey. But he had no money. So broke was he that he couldn’t see himself paying for what needed to be done immediately – preserving the corpse in a morgue. He, therefore, decided to keep the dead body in his room as he went begging for loans and any sort of financial help to enable him do what he had to do.

Neighbours knew about the situation. They were worried about what could happen if the corpse continued to be kept in Mr Huletey’s room. So, one of them reported the matter to the police. Police officers, thus, arrested Mr Huletey and charged him with murder.

“In the police cell, I wondered why they arrested me – someone who has been helping to restore her health. So, it was very hard for me,” he said.

File from the Virtual Court sitting under the Justice for All Programme. Credit POS Foundation

On his first appearance at the District Court at Mampong-Akuapem in September 2015, Mr Huletey made it clear that he could not afford a lawyer. He was, thus, remanded in prison in Koforidua as the police claimed to be continuing with their investigations. A year later, on Thursday, September 1, 2016, when he was brought back to court, the police had very little to build a case of murder against him. The family of the deceased had also eventually buried her within days of Mr Huletey’s arrest. The judge, therefore, ordered his acquittal.

 

Instead of releasing him, the police officer, who was in charge of the case, sent Mr Huletey back to the Koforidua prison. This was in blatant defiance of the judge who had instructed that Mr Huletey be kept in police custody and brought back to court the next Monday to be freed.

Mr Huletey would end up suffering the injustice of spending close to seven valuable years in prison custody. He was released in October 2021. It was a non-governmental organisation, the Perfector of Sentiments Foundation (POS), that finally took up his case and pushed for him to get what he had been denied for several years – an appearance before a judge to formally declare him a free man.

Mr Huletey’s case is “not unique” but “routine” in Ghana’s criminal justice system, according to Oliver Barker-Vormawor, a lawyer and activist, who spent time on remand at the Ashaiman police station after being accused of treason in 2022. While in that cell, he said he “witnessed” how bad the police and the justice system in general treat the poor.

He alleges that police prosecutors demand money from accused persons in custody. Those willing to pay are sent to court on time; those who are unable or unwilling to pay ‘are left to rot’ in custody.

Ghana has ratified articles 14(3) and 7(1) of the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, respectively. These treaties place an obligation on the country to provide free state-funded legal services for poor people facing criminal trials. The right to a fair trial is also enshrined in the 1992 Constitution. But many vulnerable Ghanaians such as Mr Huletey, often fall through the cracks in Ghana’s justice delivery system because of poverty.

Lawyer and human rights activist, Martin Kpebu, says this should not be happening because appearing before a court without representation “is like a boxer who enters a ring with his hands tied to his back.” He insists that the surest way to improve the situation is for the state to provide an efficient legal aid system.

But Ghana’s Legal Aid Commission, established in 1987 as the Legal Aid Board, according to Mr Kpebu, has rarely lived up to expectation.

The Legal Aid Commission Act 2008, (Act 977) mandates the Commission to provide legal assistance to the poor.

But the immediate past acting Executive Director of the Commission, Ellen Adwoa Sweety Sowa, told The Fourth Estate that her outfit has been doing its best despite the seeming neglect by the state.

She said the Commission is required to conduct a means test to determine how much an applicant should pay for the services rendered. Individuals who earn the minimum wage or below, can access the Commission’s services for free. However, Mrs Sowa says Ghana’s minimum wage, which is currently GHS18.15 per day, is woefully inadequate. As such, if the Commission goes strictly by that criterion, a lot of people would be cut off from accessing legal aid. The Commission is, therefore, forced to represent more people than it has capacity for.

In 2022, the Legal Aid Commission received 1,761 criminal cases. It was able to support 433 applicants. Out of the request to support 5,351 civil cases it received that same year, only 1,721 were approved for legal aid. Most of the cases the Commission received in 2022 were for alternative dispute resolution – 10, 570 in total. It was able to help resolve 5,754 of those cases.

Table: From 2018 to 2022.

 

In the same year Mr Huletey was arrested, police officers stormed the home of Ama Forson, a 61-year-old food vendor at Kasoa. She was not home at the time.

Her son called her to inform her that the uncompleted single room they lived in at Kasoa Red Top, a sprawling community in the Central Region, had been raided at dawn by some police officers.

“When I rushed back home, they told me they had found a bottle containing a joint of marijuana by a tree near my house,” she recounted.

“Soon after I arrived, another policeman came from behind the building with a lady’s handbag containing pieces of cement papers, scissors, and another joint of marijuana. They even checked the contents in the various pots of soup I was cooking but they found nothing,” she added.

Despite her denials of involvement in drug peddling, the police officers handcuffed Ama Forson and took her to a police station at Weija. Days later, she was moved to the Kasoa Tollbooth Police Station, where she was to spend eight months in a police cell.

During that period, she relied on the benevolence of strangers and her sister to raise GHS6,000 for three lawyers, each taking GHS2,000 to help her defend herself.

“All the three lawyers asked me to plead guilty but I told them I couldn’t because I was innocent,” Ms Forson told The Fourth Estate.

“Only one [of the lawyers] was a little attentive to my case,” she said.

In court, according to the records of proceedings, the two police officers who served as witnesses for the prosecution claimed that Ms Forson was present when her home was being searched and that she claimed ownership of the marijuana joints and other exhibits.

However, during cross-examination by Ms Forson’s lawyer, the prosecution witnesses contradicted themselves. The first prosecution witness admitted that the substance was found a few meters away from her home. The second prosecution witness said the lady’s handbag containing the suspected marijuana joint was retrieved, not in her home or inside the spot she sold food and beverages, but “on the left side beside the spot,” according to court documents.

Although the lawyer’s cross-examination raised major doubts about the prosecution witnesses’ accounts, Ms Forson was sentenced to 11 years in prison for possession of narcotics in 2016. She was traumatised, but had no money to hire a lawyer for an appeal.

When Ms. Forson’s case came to the POS Foundation’s attention, they helped her to file an appeal in 2020, leading to her acquittal and discharge by the Nsawam High Court.

“This was a poor woman’s word against two police officers,” Mr Jonathan Osei Owusu of the POS Foundation said.

He said Ms Forson would not have suffered such injustice if the country’s legal aid system was working.

But according to Mrs Sowa of the Legal Aid Commission, her outfit is doing its best.

“Because a lot of poor defendants appear before the courts without representation, the Judicial Service was asked to refer such people to the Legal Aid Commission,” she said.

The judges have been “kind of” transferring cases since then.

“I’m handling three cases. They were referred to the Commission by a judge,” a lawyer with the Commission, Jonah Mbazor Aboni, told The Fourth Estate. “So, I think even if it is slow, it is picking up.”

Nonetheless, there are no established systems by the Judicial Service to ensure that poor defendants get representation.

Mr Mbazor was full of praise for an Accra High Court judge, Justice Lydia Osei Marfo, for her eagerness and determination to ensure poor criminal defendants get representation.

Her persistence and support for the legal aid lawyers have ensured that their cases move on swiftly, according to Mr Mbazor.

In 2023, the Legal Aid Commission had 52 lawyers across the country. Mrs Sowa disclosed to The Fourth Estate that three of them resigned in one month that year and the Commission now has only 49 lawyers across the country.

“We need more lawyers, not just here [in Accra] but in the regions,” Mrs Sowa said. “We are pleading with the state, the powers that be, to give an extra listening ear to us.”

To be able to provide an efficient service to Ghanaians, Mr Barker-Vomawor says the Legal Aid Commission would need “at the very least 2,600 to 3,000 lawyers” across the country.

But funding is a big challenge. Although the Commission does not always receive all the funds allocated to it, in the last six years, the amounts released to it have seen a major boost. But there are still concerns.

In August 2022, President Nana Akufo-Addo launched the Legal Aid Fund, established to support vulnerable people to access legal services such as advice, representation, and education on legal matters.

He did this with the Minister of Justice and Attorney General, Godfred Yeboah Dame. The President announced that GHS1 million will be provided to start the fund. He also pledged a personal donation of GHS100,000 to the fund.

Mrs Sowa said it took more than a year before the GHS1 million was released to the Commission.

The Fourth Estate wrote to the Attorney General and Minister for Justice for a comment but received no response.

Mr Kpebu stressed that it is “sad the state doesn’t devote as much money as expected” to the Legal Aid Commission because Ghana’s Supreme Court has ruled that “liberty is priceless”.

Justice Lydia Osei Marfo, the High Court judge, said Ghana’s justice system could be made fairer if the Criminal Procedure Act, (Act 30) was amended to make it compulsory for judges to ensure that accused persons are represented before their cases are tried in court.

It will be good if there was a law that mandates judges to compulsorily ensure that accused persons are represented. Now it is just may. It is not shall. And when it is may, you can do if you wish, but shall is you don’t have discretion.

She also suggests that private legal practitioners should be required to deliver a certain minimum of pro bono (or free) services to indigent people.

Mr Barker-Vomawor agrees. He says as a member of the New York State Bar in the United States, he is required to show evidence that he has done 500 hours of pro bono work before his licence is renewed yearly.

The reason there are no similar requirements in Ghana, he believes, could be that “there is a general sense that people in the legal space are underpaid and the Bar doesn’t want to be at the forefront of imposing such an obligation on lawyers.”

Justice Marfo also wishes that the General Legal Council, the body that regulates the legal profession in Ghana, would make it mandatory for lawyers in private practice to show proof of working on at least two pro bono cases before their licences are renewed annually.

She said there are so many poor accused persons who appear before the courts unrepresented, and “they just say anything without knowing that they are hanging themselves.”

The Fourth Estate reached out to both the General Legal Council and the Ghana Bar Association for comment but did not get a response.

The inability of the poor to access legal representation has “created a pipeline to prison,” Mr Baker-Vomawor said. To him, Ghana will only witness a meaningful change in the criminal justice system if individuals directly involved in the system and policy makers decide to protect the poor at the expense of their own interests.

But as the country waits for an efficient and well-funded legal aid system, many are suffering the worst forms of injustice, leaving them traumatised and scarred for life.

Though Ama Forson was released in 2020, and received some support from philanthropists, the trauma she went through has, according to her, “destroyed everything”.

She lost her 19-year-old son, Nana Benyin, to sickle cell disease complications late last year. He was left to fend for himself as his mother was unjustly imprisoned. Without the needed care and medical treatment, Ms Forson is not surprised her son could not survive her absence.

 

“I may commit suicide because I’m suffering,” she told The Fourth Estate. “If I die, I will have peace.”

For Mr Huletey, the time spent in prison has ruined his health. He squints to see properly. He strains to hear. And sleeping on his side for years in prison has affected his hips.

“I feel pains in my hips down to my knees. If I don’t take any painkillers before I go to farm, my hips lock up and I can’t move for long periods. One night, but for my daughter, I don’t know what would have happened to me,” he recounted.

Mr Huletey’s long absence from his four children’s life has adversely affected them. The oldest of his four children, 20-year-old Abigail Sakyibea, already has two children.

She dropped out of school in class six shortly after her father was imprisoned. Her brother, who is 17 years now, is still in his first year in Junior High School.

“When I think about the time I spent in prison, I can’t understand it. When I was locked up, I always asked myself what I had done to suffer this way,” Mr Huletey said.

Now living in an uncompleted building at Nankese, a community close to Suhum in the Eastern Region, Mr Huletey said he has considered the possibility of legal action to get some compensation from the state. But he cannot proceed because he doesn’t have money.

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