Ghana - Amnesty International

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104 GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10sources, including a senior government official, in 2012, the Mutual Legal Assistance Act wasamended in part; however all attempts by Amnesty International to obtain copies of the 2012 Actdid not succeed. 350 Therefore, some aspects of the 2010 Mutual Legal Assistance Act discussedbelow in Section 7.2 may have been modified. The 2010 Act provides that, in the absence of astanding agreement between Ghana and a foreign state or entity, the Attorney General and Ministerof Justice may make an ‘administrative arrangement’ for up to six months allowing the granting ofmutual legal assistance to that foreign state or entity. 351 The central authority which holdsresponsibility for the making, granting, and execution of mutual legal assistance requests in Ghanais the Ministry of Justice. 352Mutual legal assistance – bilateral treaties. Despite repeated requests to the Ministry of Justice, ithas not been possible to obtain a complete list of bilateral extradition treaties to which Ghana is aparty. However, it is a party to an antiquated bilateral treaty with the United Kingdom that containslimited mutual legal assistance provisions in extradition cases. 353 That treaty has also been madeapplicable to the USA. 354Multilateral agreements. Ghana is also a party to a number of multilateral agreements with mutuallegal assistance provisions, including Protocol I to the Geneva Conventions 355 and the Conventionagainst Torture. 356 The Constitution does not clarify which takes precedence in case of a conflictperson or a legal representative of an accused person who applies to the central authority of that state for thisassistance. Sect. 14.350These efforts included written requests to obtain copies of the Act from the government and attempts tolocate the legislation from comprehensive legal databases cataloguing Ghanaian law, including Lexis Nexis SouthAfrica and DataCenta.351This provision is only applicable to cases concerning certain specified serious offences under Ghanaian law.Mutual Legal Assistance Act, sect. 4. Serious offences are the following:“(a) participation in an organised criminal group, terrorism and terrorist financing, money laundering,human trafficking, people smuggling, rape, defilement, illicit trafficking in stolen and other goods,corruption and bribery, serious fraud, counterfeiting and piracy of products, smuggling, extortion, forgery,insider trading and market manipulation;(b) murder, grievous bodily harm, armed robbery or theft where there are predicate offences for a seriousoffence; and(c) any other similar or related, prohibited activity punishable with imprisonment for a period of not lessthan twelve months”. Sect. 82.352Mutual Legal Assistance Act, sect. 6.353Extradition treaty between the United Kingdom and Ghana, ratifications exchanged in London, 4 August1932 (http://internationalextraditionblog.files.wordpress.com/2011/03/ghana.pdf).354Extradition treaty between the United States and Ghana, T.S. 849; 1931 U.S.T. LEXIS 60; 12 Bevans 482;entered into force 24 June 1935 (http://internationalextraditionblog.files.wordpress.com/2011/03/ghana.pdf).355See Protocol I, art. 88.356See Convention against Torture, art. 9.Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10105between provisions of the Mutual Legal Assistance Act and the requirements of these ratifiedtreaties (see Section 2.2). As discussed below, regional organizations to which Ghana belongs alsohave agreements providing for mutual legal assistance, including the Economic Community of WestAfrican States Convention on Mutual Assistance in Criminal Matters (ECOWAS Mutual AssistanceConvention), 357 which Ghana has signed, and the Scheme Relating to Mutual Assistance in CriminalMatters in the Commonwealth (Harare Scheme). 358 Provisions of these instruments are notenforceable in Ghana unless they are directly incorporated into national legislation. 359 However, as asignatory to the ECOWAS Mutual Assistance Convention, Ghana has agreed to act in good faith notto defeat the object and purpose of the treaty 360 , and, as a member of the Commonwealth, Ghana isis eligible for legislative drafting assistance by the Commonwealth, which is developing a model lawto implement the Harare Scheme, to adopt legislation giving effect to the non-binding HarareScheme. 361 Some provisions in these agreements contain inappropriate bars to mutual legalassistance, including: political offence exceptions to mutual assistance, ne bis in idem prohibitionsand double criminality requirements.7.2.1 UNAVAILABLE OR INADEQUATE PROCEDURESAs discussed below, Ghanaian law provides for a number of mutual legal assistance procedures,either with regard to requests by Ghana for assistance or with regard to requests by foreign states toGhana for assistance.7.2.1.1. Conducting investigationsGhanaian authorities may request that foreign authorities assist in criminal investigations or seekevidence in their states (for example, through letters rogatory (commissions rogatoires) for seriouscrimes. The law also permits Ghanaian authorities to seek evidence and conduct criminal357Economic Community of West African States Convention on Mutual Assistance in Criminal Matters (ECOWASMutual Assistance Convention), Annex: Document 5, Cooperating for Peace in West Africa: an Agenda for the21 st Century, Anatole Ayissi (ed.), Geneva: United Nations Institute for Disarmament Research, 2001, pp. 55 –74.358Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth (Harare Scheme),October 2005 (http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/2C167ECF-0FDE-481B-B552-E9BA23857CE3_HARARESCHEMERELATINGTOMUTUALASSISTANCE2005.pdf).359See 1991 Constitution, Ch. V, sect. 40 (4).360As of 1 September 2012, all attempts by Amnesty International to determine whether Ghana had ratified thistreaty in requests for information from ECOWAS, the depository of the treaty, and the Ghanaian Ministry ofForeign Affairs, were unsuccessful. Although for the purposes of determining state responsibility it matterswhether Ghana has ratified this treaty or not, it does not matter for purposes of this paper since regardless of theratification status it has not been implemented in national law and, therefore, cannot be enforced by Ghanaiancourts.361The Harare Scheme is a non-binding agreement on principles between Commonwealth nations. See KimberlyProst, ‘Cooperation in Penal Matters in the Commonwealth’, International Criminal Law, Volume II: Multilateraland Bilateral Enforcement Mechanisms 423 – 435 (2008).Index: AFR 28/004/2012 Amnesty International November 2012
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