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112 GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10unfair. The principle of ne bis in idem (that one cannot be tried twice for the same crime) is afundamental principle of law recognized in international human rights treaties and otherinstruments, including the ICCPR, the American Convention on Human Rights, Additional Protocol Iand constitutive instruments establishing the ICTY, ICTR and the Special Court for Sierra Leone. 397However, apart from the vertical exception between international courts and national courts, theprinciple only prohibits retrials after an acquittal by the same jurisdiction. 398 This limitation onthe scope of the principle can serve international justice by permitting other states to step in whenthe territorial state or the suspect’s state fails to conduct a fair trial.7.2.2.4. Double criminalityThe Mutual Legal Assistance Act states that, in circumstances where a request for mutual legalassistance is in respect of a crime which is not an offence under the laws of Ghana, the AttorneyGeneral and Minister of Justice, a political official, will:“(a) consider details of the relevant conduct underlying the request and the adoption ofmeasures that may be necessary to facilitate the provision of assistance required, and(b) provide the required assistance in accordance with the laws of the Republic, and on termsand conditions certified by the Minister.” 399Under the non-binding Harare Scheme, requested states may refuse to provide mutual legalassistance on the grounds that the conduct underlying the criminal matter would not constitute anoffence under the law of the requested state. 400 The ECOWAS Mutual Assistance Convention doesnot contain such a provision.Whatever the merits may be for requiring double criminality with respect to conduct that onlyamounts to an ordinary crime, it has no merit when the conduct amounts to a crime under397ICCPR, art. 14 (7); American Convention on Human Rights, art. 8 (4); Additional Protocol I, art. 75 (4) (h);ICTY Statute, art. 10 (1); ICTR Statute, art. 9 (1); Statute of the Special Court for Sierra Leone, art. 9.398The Human Rights Committee has concluded that Article 14 (7) of the ICCPR “does not guarantee non bis inidem with regard to the national jurisdictions of two or more States. The Committee observes that this provisionprohibits double jeopardy only with regard to an offence adjudicated in a given State.” A.P. v. Italy, No.204/1986, 2 November 1987, 2 Selected Decisions of the Human Rights Committee under the OptionalProtocol 67, UN Doc. CCPR/C/OP/2, UN Sales No. E.89.XIV.1. This limitation was also recognized during thedrafting of Article 14 (7) of the ICCPR. See Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of theInternational Covenant on Civil and Political Rights, Dordrecht: Martinus Nijhoff, 1987, pp. 316-318; ManfredNowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Kehl am Rhein: N.P. Engel, 1993, pp.272-273; Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the InternationalCovenant on Civil and Political Rights, Oxford: Clarendon Press, 1991. The ICTY Trial Chamber in the Tadić casereached the same conclusion. Prosecutor v. Dusko Tadic, Case No IT-94-1-A, July 15, 1999.399Mutual Legal Assistance Act, sect. 17.400Harare Scheme, para. 8 (a).Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10113international law, even if the requesting state is seeking extradition to prosecute the person for anordinary crime when its legislation does not characterize the conduct as a crime under internationallaw. All states have a shared obligation to investigate and prosecute conduct that amounts to crimesunder international law, either by doing so in their own courts or by extraditing the suspect toanother state or surrendering that person to an international criminal court, and they cannot escapethis obligation by refusing to extradite on the basis of double criminality.7.2.2.5. JurisdictionGhana does not expressly prohibit the making or granting requests for mutual legal assistancebecause jurisdiction in the requested or requesting state is based on universal jurisdiction or a formof jurisdiction not recognized in the requested state.Neither the non-binding Harare Scheme nor the ECOWAS Mutual Assistance Convention containssuch a prohibition.7.2.2.6. Amnesty or similar measure of impunityGhanaian law does not expressly prohibit the making or granting of requests for mutual legalassistance because a prosecution is barred in either state based on an amnesty, pardon or similarmeasure of impunity.Neither the non-binding Harare Scheme nor the ECOWAS Mutual Assistance Convention containssuch a prohibition (see discussion above in Section 6.10 regarding the prohibition of amnesties andsimilar measures of impunity).7.2.2.7. Other inappropriate bars to mutual legal assistanceInternational relations and other political considerations. The discretion of the Attorney General andMinister of Justice, a single political official, to refuse a request for mutual assistance on thegrounds that the request would prejudice the security, international relations or other essentialpublic interests of Ghana (as permitted under the Mutual Legal Assistance Act) 401 could become aninappropriate bar to mutual legal assistance. The Attorney General and Minister of Justice also havethe authority to grant wholly or partly a request for mutual legal assistance “on such terms andconditions he considers appropriate”. 402 Such grounds are inappropriate when the crimes concernedare crimes under international law, which are crimes against the entire international community. Inaddition, such broad grounds may be abused under political pressure.Similarly, the non-binding Harare Scheme gives states discretion to refuse assistance when itappears to a state-appointed authority that compliance would “prejudice the security, international401Mutual Legal Assistance Act, sect. 15 (1) (a). ‘Essential public interests’ include sovereignty, security,national interests, public order, and an excessive burden on Ghana’s resources. Sect. 82.402Mutual Legal Assistance Act, sect. 10 (1) (a). Although the Minister may delegate some duties under theMutual Legal Assistance Act to another competent authority or to an authorized public officer, the Minister hasultimate responsibility for mutual legal assistance functions provided by the Act. Sect. 79.Index: AFR 28/004/2012 Amnesty International November 2012
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