The Public Defenders Division, one of the three functional divisions of the Legal Aid Commission, was able to resolve only 323 out of the 1,518 criminal cases it received between January 2023 and July this year.
This is due to the shortage of lawyers (public defenders) available to support the work of the division charged with the mandate of representing accused persons who cannot afford the services of a lawyer.
Currently, there are only 34 lawyers who act as public defenders nationwide, significantly affecting the division’s ability to handle the high volume of criminal cases.
Out of these, only 12 specialise in criminal cases and are concentrated in the Greater Accra, Ashanti, Western/ Western North regions, leaving some areas without any legal support.
The shortage, therefore, puts immense pressure on the few lawyers who must cover multiple border regions.
For example, in the three regions of the north (formerly Northern Region), there are only two lawyers responsible for criminal cases, one of whom is due for retirement this year.
Public Defender
A public defender is a lawyer usually holding public office, who is appointed to defend accused persons who are poor and unable to hire a lawyer of their choice.
Their work is to, at all phases of the criminal procedure, represent indigent criminal offenders such as the poor and vulnerable, women, juveniles, remand prisoners, and persons with disability who come into conflict with law.
A public defender represents such persons during pre-trial proceedings right from the time of arrest up to trial and beyond on appeal.
In January last year, a case monitored by the Daily Graphic at the Accra Circuit Court highlighted the impact of the unavailability of a public defender on the right of accused persons.
The then accused, Dauda Mohammed Nazir’s fate of possibly serving a minimum jail term of 10 years was saved on January 25, 2023, through the intervention of a lawyer.
Incident
Nazir had pleaded guilty to the count of engaging in violent activities at an election event held in Cape Coast, when he first appeared at the Accra Circuit Court presided over by Samuel Bright Acquah on January 10, 2023, without legal representation.
Nazir, who speaks Hausa, had been charged alongside two others.
He was the only accused person whose plea was taken on January 10, 2023, in the judge’s chambers because he supposedly agreed for his charges to be read in English, while the plea of the other accused persons was postponed because they preferred their charges to be read in their local dialect instead of English.
At the time Nazir pleaded guilty to the vigilante charges, he had no legal representation.
It was only on January 25, 2023, a day set aside for judgement, that Nazir made an appearance in court with a lawyer.
The lawyer, Beatrice Annangfio, who contested the sentencing of her client, argued that her client did not fully understand what it meant to plead guilty to the offence, adding that the court clerk, who was not a certified interpreter, did not communicate to the understanding of the accused whose native language was Hausa.
After a compelling case by the lawyer, the court halted the sentencing of the accused person.
“In this case, I will allow the plea of the convict to be retaken,” Mr Acquah said, saving Nazir from possibly serving a minimum of 10 years on the charges.
Impact
Speaking to the Daily Graphic on the impact of the shortage on the PDD’s work, the Director of the PDD, Nelson M. Kporha, also recounted the story of a young man who had engaged the services of a commercial motor rider to a destination.
The accused person, Ibrahim Amin, begged the victim, the motor rider, to give him a lift from Ekorso to Abomosu on February 4, 2021. On reaching a section of the road between Ekorso and Abomosu, the accused ordered the victim to stop and get off the motorbike.
The accused then took off with the motorbike through Asonafo to the Kumasi-Accra highway, but was arrested together with the motorbike at New Jejeti and brought to the Kwabeng Police Station.
After investigation, the accused was charged with the offence of robbery and arraigned before the Circuit Court at Anyinam, without a lawyer.
He simply pleaded guilty to the charge of robbery and was sentenced to 15 years imprisonment. The charge was read in Twi to the accused person, who is a Mamprussi.
On an appeal referred to the PDD’s office in Accra, the High Court agreed with Mr Kporha, also a public defender, that the facts did not support the offence of robbery.
Accordingly, the conviction and sentence on the charge of robbery was set aside, substituted with stealing, and he was sentenced to five years imprisonment.
Rights
Article 19 of the 1992 Constitution guarantees an individual’s right to a fair trial.
Under Article 19 (2)(d), the Constitution gives a person charged with a criminal offence the opportunity to be informed immediately in a language that he understands, and in detail, of the nature of the offence charged.
This was not done in the case of Nazir and Amin, making their chances of effectively defending themselves very bleak.
The Legal Aid Commission Act of 2018 (Act 977) was passed and assented to by the President on September 13, 2018.
The Act establishes the Legal Aid as a Commission and creates PDD as one of its three major divisions. The others are the Citizens Advisory Division and the Alternative Dispute Resolution Division (ADR).
The PDD exists to assist persons in need of legal assistance for the realisation of the right of equality before the law and for fair trial.
Among its functions is to act as Public Defender for the realisation of Article 14 (Protection of personal liberty), Article 17 (Equality and Freedom from discrimination) and Article 19 (Fair trial) under the 1992 Constitution.
Public defenders also ensure that a person who is arrested, restricted, detained or accused of an offence is afforded the appropriate legal assistance.
Private legal practitioners, who are able to defend accused persons throughout the trial, are entitled to a commission of 20 per cent of the GBA scale of fees upon successful completion of the case.
Plea
Mr Kporha appealed to the government to give the division clearance to recruit an additional 50 lawyers to help the PDD to discharge its mandate effectively.
“Most of the cases that go to court and sometimes end up in conviction, you will realise that if the person had been properly advised, the case would not have gone to court in the first place, and that is why we need more lawyers to assist these accused persons from the point of arrest,” he said.
He further explained that in the case of the three northern regions, it was humanly impossible for the lawyers to defend the accused persons effectively because the two lawyers available handle civil cases alongside criminal cases.
“Criminal defence is a special field on its own; you’re talking about the liberty of the individual so you need to put in your maximum best so that their liberty is not denied,” he said.
Writer’s E-mail: justice.agbenorsi@graphic.com.gh
