Ghana - Amnesty International

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110 GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10Ghana’s Attorney General and Minister of Justice can only make requests for mutual legal assistanceto foreign states after consultation with the Minister of Foreign Affairs, another political official. 386However, the Mutual Legal Assistance Act simply requires that this official be consulted. It does notgive the Minister of Foreign Affairs a veto, but this official could bring improper politicalconsiderations into decisions that should be made by an independent professional prosecutor inaccordance with neutral criteria. All requests for assistance – whether made by Ghana or by a foreignstate – should be in writing, dated and signed, where possible. However, they can also be madeorally in exigent circumstances as long as a request in writing follows as soon as practicable. 387Requests made in writing include those made by electronic device or other agreeable means. 3887.2.2 INAPPROPRIATE BARS TO MUTUAL LEGAL ASSISTANCEGhanaian law contains a number of inappropriate bars to mutual legal assistance for crimes underinternational law. These include political offence exceptions to the provision of mutual legalassistance without express exclusion of all crimes under international law; ne bis in idemprohibitions; and the broad discretion of the Attorney General and Minister to turn down in whole orin part mutual legal assistance requests. In addition, regional organizations to which Ghana belongshave agreements providing for mutual legal assistance that contain a number of inappropriate barsto mutual legal assistance, including: political offence exceptions to the provision of mutualassistance without express exclusion of all crimes under international law from consideration aspolitical offences, ne bis in idem prohibitions, and double criminality requirements.7.2.2.1. NationalityThere is no provision in Ghanaian law expressly prohibiting the granting of requests for mutual legalassistance when the person concerned is a Ghanaian national.Neither the non-binding Harare Scheme nor the ECOWAS Mutual Assistance Convention expresslyprohibit the granting of requests for mutual legal assistance on the grounds that the assistanceconcerns a national of the requested state.7.2.2.2. Political offenceThe Mutual Legal Assistance Act does not permit the making or granting of requests for mutual legalassistance with respect to offences “of a political character” or associated offences orproceedings. 389 However, for the purposes of mutual legal assistance, a number of crimes undernational law of international concern and crimes under international law would not constitutepolitical offences. Section 15 provides that offences within the scope of international conventionsimposing aut dedere aut judicare obligations to which both Ghana and the foreign state are partiesare not offences of a political character under the Act. 390 Thus, grave breaches of the Geneva386Mutual Legal Assistance Act, sect. 7 (1).387Mutual Legal Assistance Act, sects. 7, 9.388Mutual Legal Assistance Act, sect. 7 (4), 9 (3).389Mutual Legal Assistance Act, sects. 1 (3) (a), 15 (1) (b).390Mutual Legal Assistance Act, sect. 15 (2) (a), (b).Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10111Conventions and of Protocol I and torture would not be considered offences “of a politicalcharacter,” but only if the other state were a party to the relevant treaties. It also states that offenceswithin the scope of an international convention against terrorism are not offences of a politicalcharacter. 391 Nevertheless, there is no exclusion for crimes under international law found ininternational conventions not imposing aut dedere aut judicare obligations or found in internationalconventions not ratified by Ghana or the foreign state. Therefore, crimes against humanity, warcrimes in non-international armed conflict, extrajudicial executions and enforced disappearanceswould be excluded from the concept of “offences of a political character.”Similarly, the Harare Scheme allows a requested state to refuse provision of mutual assistance onthe grounds that the criminal matter at issue concerns an offence that appears, in the opinion of therequested state, to be of a political character. 392 Importantly, the Scheme states that crimes underinternational law found in treaties that contain an aut dedere aut judicare clause are excluded fromthe political offence exception. 393 Likewise, the ECOWAS Mutual Assistance Convention, whichGhana has signed, permits the refusal of mutual assistance on the basis that the requested stateregards the offence as political in nature. 394 Unlike the Harare Scheme, however, the Conventionfails to define what constitutes an offence “of a political nature” and does not expressly excludecrimes under international law from the political offence exception. It is important to note thatneither instrument is enforceable under the laws of Ghana without implementing legislation (SeeSection 7.1.1.4. above for further discussion of political offences).7.2.2.3. Ne bis in idemGhana does not permit the granting of requests for mutual legal assistance where the personconcerned has been tried and convicted in a court of competent jurisdiction, even when the priorproceedings were a sham, designed to ensure impunity, or unfair, and even when the crimes at issuewere crimes under international law, which states are under a duty to investigate and prosecute. 395The ECOWAS Mutual Assistance Convention, which Ghana has signed, provides that mutualassistance may be refused if it would violate the requested state’s laws on double jeopardy or ifthe request relates to an offence that is already subject to an investigation or prosecution in therequested state. 396This would constitute an inappropriate bar to mutual assistance if the previous trial was a sham or391Mutual Legal Assistance Act, sect. 15 (2) (c).392Harare Scheme, para. 8 (1) (c).393Both the requesting and requested state must be party to the treaty containing the obligation. See HarareScheme, para. 8 (4).394ECOWAS Mutual Assistance Convention, art. 4 (1) (b).395Mutual Legal Assistance Act, sect. 15 (1) (d).396Harare Scheme, art. 4 (1) (d). The Convention also permits states to postpone the execution of a request if itsimmediate execution would interfere with an ongoing investigation or prosecution in the requested state’sterritory. Art. 4 (3)Index: AFR 28/004/2012 Amnesty International November 2012
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Ghana - Amnesty International

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