Bertha Aniagyei*
PART II
- BEYOND DEBT COLLECTION: DIFFERENTIATION BETWEEN THE INFORMAL DEBT COLLECTION PRACTICE AND SECTION 35 OF THE COURTS ACT AND PLEA BARGAINING IN GHANA.
The debt collector procedure as presented in Part I of this paper, bears no resemblance to the legal frameworks that permit an accused individual to make restitution, reparation, or pay compensation in lieu of the prescribed punishment for the offense. Two such frameworks are outlined in Act 459 and Act 30.
- Incomparability with Section 35 of the Courts Act, 1993 (Act 459)
The provision in section 35 of Act 459 is only available to an accused person who is standing trial before the High Court or a Regional Tribunal for an offence the commission of which has occasioned financial loss, harm or damage to the state or any state agency.
If the above conditions exist, then such an accused person, upon making a decision to admit the offence and being desirous of making restitution and/or reparation or offering compensation, must inform the prosecutor (and not the court) of his decision.
The prosecution must then make a determination as to whether or not the offer is acceptable. If prosecution determines the offer not to be acceptable, the court would not know of this offer.
Although the wording of the section appears not to allow for negotiations, in practice, the prosecution (the Honourable Attorney General and officers of the law office) may negotiate with the accused person over his initial offer until they are able to reach an amicable agreement.
If the prosecution accepts the initial offer or the negotiated offer, the prosecutor will then inform the court in the presence of the accused person. The court has the responsibility of considering whether the offer is satisfactory.
In practice, once the prosecution and the accused person have concluded on the offer, they file terms of settlement for the court’s consideration.
The courts usually accept the terms. If the courts find the condition unsatisfactory, then impliedly, the trial will proceed unless the parties decide to take a second look at the agreement.
Where the court finds the offer satisfactory, it shall proceed to retake the plea of the accused person and convict him on his own plea of guilt.
The procedure of conviction is significant because without one, a court would have no legal basis to impose any form of punishment and/or make ancillary orders for restitution, reparation or compensation.
Thereafter, the court shall instead of passing the prescribed legal sentence, make an order for the convict to make reparation and/or restitution or pay compensation on the terms agreed upon.
If the terms involve the payment of money on an installation basis, the convict must religiously comply because failure to meet one payment would mean the full amount involved becomes due. Failure to pay the full amount would lead to the court imposing a custodial sentence.
- Not a Form of Plea Bargain: Section 162A Of the Criminal and other Offences (Procedure) (Amendment) Act, 2022, (Act 1079)
In 2022, parliament amended section 162 A of Act 30 to make room for plea bargaining in Ghana. The procedure of debt collection cannot be equated to plea bargain.
In brief, plea bargain involves the prosecutor and the accused person as well as counsel for the accused person if at all. By virtue of victim participation, the complainant must also be involved in plea negotiations. A plea bargain can be entered into by the parties at any time before judgment in a case.
Although the law provides that either the accused person or prosecution may commence the process of plea bargaining, in practice, where an accused person is standing trial for any offence that is amenable to plea bargaining and he is desirous of entering into a plea bargain with the state, he makes an offer to the Honourable AG or its officers.
Where the prosecution agrees, they will file a notice of commencement of plea bargain to notify the court. They would also file all disclosures and ensure that a copy is served on the accused person or his counsel.
The court must then adjourn proceedings for thirty days (30) days to allow the parties to negotiate. In practice, negotiations go far beyond the 30 days and in such cases, the court may grant further adjournment to the parties.
The court, however, possesses the authority to continue with the trial if an agreement is not reached within the initial 30 days. The continuation of proceedings does not preclude the parties from pursuing their plea bargain. Should they achieve a successful outcome prior to judgment, the court will take this into consideration.
Where the parties agree, they sign terms of agreement and file the plea agreement for consideration by the court. The parties may agree that the accused person pleads guilty to a lesser offence or to some of the offences charged and not all.
They may also agree on a reduced punishment for the offence (within the legally prescribed punishment) and also for restitution or compensation. Prosecution may also withdraw the charges.
Here again, the court has the right to accept or reject the plea agreement. Where the court accepts the agreement, it must on oath, ascertain the mental capacity, voluntariness, consent and knowledge of the accused person to the plea agreement.
Where the accused person confirms the plea agreement, the court would proceed to retake his plea, convict him and then pass the agreed sentence.
Where the plea agreement stipulates that the prosecution withdraws its charges, the court would proceed to dismiss the case and discharge the accused individual.
In instances where the court does not accept the plea agreement, the trial will proceed. However, the continuation of the trial does not prevent the parties from entering into another plea agreement, provided that such an agreement is reached prior to the delivery of the judgment in the case.
- RESTITUTION PRIOR TO SENTENCING
While it is evident that the practice of treating criminal trials as informal debt collection mechanisms lacks any foundation in reconciliation, Section 35 settlements, or plea bargaining, it is crucial to recognize that restitution, reparation, and compensation possess a legitimate role within the criminal justice process.
This role, however, is contingent upon a conviction and occurs during sentencing, where such actions are appropriately evaluated as mitigating factors indicative of remorse.
Consequently, it is essential to draw a clear distinction between lawful restitution prior to sentencing and the unlawful procedural shortcuts that reduce criminal courts to mere debt-collection venues.
- Mitigation, Not Compulsion: An Adjournment for Remorse, not Debt Collection.
Following a conviction and prior to sentencing, the court may consider any restitution, reparation, or compensation that the convicted individual has made as a mitigating factor.
At this stage, the convict or their legal counsel may request a brief adjournment to facilitate restitution before the imposition of a sentence.
The underlying rationale for such a plea is that in determining an appropriate sentence, one of the mitigating factors that the court considers is the extent to which the convict has exhibited remorse for their actions. Expressions of remorse for the commission of an offense can be demonstrated through apologies, restitution, reparation, or compensation.
Consequently, when a convict prays for an adjournment to effectuate restitution, the court may grant this request and adjourn the sentencing for a subsequent date. In such cases, the court may either remand the convict or grant bail pending sentencing.
In circumstances where the convict is unrepresented, the court may explain to him the factors that it considers in mitigating sentences including remorse.
Where the convict voluntarily prays for an adjournment to make such restitution before sentencing, the court may grant same. Nowhere in the course of proceedings should the court insist, put pressure and/or impress upon a convict to make restitution, reparation or pay compensation before sentencing.
- CAUSE AND CONTEXT: WHY COURTS RESORT TO DEBT COLLECTION
- Victim Alienation in the Criminal Justice Process
It appears that some courts have adopted this procedure as a means of addressing the significant gap in criminal law that often leaves complainants feeling alienated from the legal process. The Westminster system of criminal justice, which is practiced in this jurisdiction, clearly delineates the parties involved in a criminal matter as the state and the accused individual.
The complainant, who is the victim, does not occupy a central role in the criminal process because it is presumed that the state, by prosecuting the case, is vindicating both the victim’s rights and the broader rights of society.
Consequently, the complainant is relegated to a secondary position, serving primarily as a witness. In the event of a conviction, the victim has no influence over the determination of the punishment, as Parliament has already established the punishment, which the courts are obligated to enforce.
Research has demonstrated that the criminal process often alienates victims, as their voices are frequently unheard, leading to re-traumatization during the proceedings. In this context, it appears that the courts intervene by permitting restitution or reparation, as this aligns with the desired outcome of the victim/complainant.
- The Resort to Criminal Law for Resolving Civil Disputes
Furthermore, many individuals in Ghana resort to criminal law for relatively simple civil matters due to the alien, complex, and costly nature of civil court processes. They are often drawn to criminal law because the state’s authority, manifested through police powers of arrest, can be wielded to compel compliance with civil obligations.
This approach may appear to yield more prompt results compared to initiating a civil action, which places the onus entirely on the individual.
END.
In our concluding paper, we will assess the disadvantages associated with the debt collection practice for all parties involved in the administration of criminal justice.
Furthermore, we will propose a pathway forward, including exploring alternative forms of criminal justice. We will also put forth recommendations for future actions designed to restore the integrity of the criminal justice system.
*The author is a judge and an alumna of Harvard Law School.
