Legal practitioner and activist Oliver Barker-Vormawor has argued that the general rule of law is that no individual can be tried in their absence, as criminal proceedings are ordinarily required to take place in the presence of the accused.
According to him, Article 19(3) of the Constitution provides two exceptions to this rule. The first is where an accused person refuses to appear after being duly notified of the trial, and the second is where the accused behaves in a manner that makes it impracticable for the proceedings to continue in their presence, prompting the court to order their removal.
He notes that the second exception is clearly inapplicable in the case of Ken Ofori-Atta. The key legal issue, therefore, is whether the former Finance Minister has been duly notified of any criminal proceedings against him.
Barker-Vormawor explains that Ghanaian law does not specifically prescribe how an accused person must be notified of a criminal trial. While civil proceedings under CI 47 provide mechanisms for serving individuals outside the jurisdiction and even permit substituted service after unsuccessful attempts, the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) does not expressly outline a similar procedure for criminal trials initiated in the absence of an accused person.
He cites the 2015 case involving Indian businessman Arvind Bhatennegar, who was tried and convicted in absentia while outside his country. The conviction was later unanimously overturned by the Supreme Court on the grounds that he had not been properly notified of the proceedings.
In Barker-Vormawor’s view, it is not impossible to lawfully notify an accused person who is outside Ghana’s jurisdiction. He argues that the procedures applicable in civil cases should guide criminal proceedings, with criminal summons being served through Mutual Legal Assistance frameworks. Where necessary, courts could also authorize substituted service to ensure the accused is properly informed.
He further suggests that where an individual has been served with an extradition package, such service should constitute adequate notice of the proceedings.
Barker-Vormawor concludes that Ghana’s legal system must be proactive in addressing procedural gaps to prevent influential individuals from exploiting them to evade accountability, especially when existing legal mechanisms can be adapted to provide practical solutions.
