Ghana - Amnesty International

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114 GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10relations or other essential public interests of that country.” 403 Likewise, the ECOWAS MutualAssistance Convention permits refusal of extradition on the grounds that, if granted, the requestedstate believes it would prejudice a state’s sovereignty, security, and public order. 404 Suchconsiderations, particularly when made under the discretion of a political official rather than underthe discretion of an independent court, could easily be abused. 405Comparative procedure. Ghana’s Mutual Legal Assistance Act provides that a person will not becompelled to give evidence – either through the production of a document or in an answer to aquestion – in Ghana that he or she is not required to give in proceedings in his or her own country orin criminal proceedings in the foreign state or foreign entity requesting mutual legal assistance. 406Likewise, the non-binding Harare Scheme states that no person should be compelled to give suchevidence which he or she would not be compelled to give in criminal proceedings both in therequesting and requested Commonwealth state. 407 The Harare Scheme also provides that states mayrefuse to grant assistance if such assistance would require steps to be taken that could not, underthe law of the requested state, be taken in respect of criminal matters arising in that state. 408Similarly, the ECOWAS Mutual Assistance Convention provides that mutual assistance may berefused if such assistance would require the giving or gathering of evidence in a manner that doesnot comport with the requested state’s law and practice. 409 Such grounds may be inappropriate whenthe crimes concerned are crimes under international law, which are crimes against the entireinternational community, except in circumstances where they may safeguard human rights, such asthe right to silence and the right not to be compelled to confess guilt.7.2.3. SAFEGUARDSGhanaian law does not expressly prohibit the making or granting of requests for mutual legalassistance on the grounds that the assistance provided could lead to an unfair trial, torture, inhumantreatment, or the death penalty. However, the Mutual Legal Assistance Act prohibits the granting ofmutual legal assistance in contravention of the laws of Ghana, 410 which might implicate humanrights safeguards guaranteed in the Constitution. The non-binding Harare Scheme also permits403Harare Scheme, para. 8 (2) (a).404ECOWAS Mutual Assistance Convention, art. 4 (1) (a).405The ECOWAS Convention does not specify what official or body constitutes a “competent authority” withdiscretion over this consideration. See ECOWAS Mutual Assistance Convention, art. 3. Under the Mutual LegalAssistance Act, this decision is made by the Attorney General and Minister of Justice. A person aggrieved by therefusal to grant a mutual legal assistance request can apply to the High Court for judicial review of this decision.Sect. 15 (4). However, the broad scope of this provision would appear to leave little room for a successfuljudicial review.406Mutual Legal Assistance Act, sect. 33,407Harare Scheme, para. 21.408Harare Scheme, para. 8 (3).409See ECOWAS Mutual Assistance Convention, arts. 4 (1) (e), 12, 16 (2).410Mutual Legal Assistance Act, sect. 15 (1) (g).Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10115Commonwealth nations to refuse assistance on constitutional grounds. 411 The ECOWAS MutualAssistance Convention does not contain these safeguards.The Mutual Legal Assistance Act also includes a safeguard against discrimination and a specialtyrule. Further, it allows for judicial review of decisions regarding requests for mutual legal assistance.7.2.3.1. Fair trialThere is no express prohibition in Ghanaian law on the making or granting of requests for mutuallegal assistance on the grounds that the person concerned faces an unfair trial, although this may beimplicit in the Constitution’s fair trial guarantees. 412Neither the non-binding Harare Scheme nor the ECOWAS Mutual Assistance Convention expresslyprohibits the making or granting of requests for mutual legal assistance on the grounds that theperson concerned faces an unfair trial.7.2.3.2. Torture and other cruel, inhuman or degrading treatment or punishmentThere is no express prohibition in Ghanaian law on the making or granting of requests for mutuallegal assistance on the grounds that the person concerned faces torture or other ill-treatment,although this may be implicit in the Constitution’s prohibition of torture. 413Neither the non-binding Harare Scheme nor the ECOWAS Mutual Assistance Convention expresslyprohibits the making or granting of requests for mutual legal assistance on the grounds that theperson concerned faces torture or other ill-treatment.7.2.3.3. Death penaltyThere is no express prohibition in Ghanaian law on the making or granting of requests for mutuallegal assistance on the grounds that the person concerned faces the death penalty, although Ghanais abolitionist in practice (see Section 7.1.2.3 above).7.1.2.4. Other human rights safeguardsSpecialty. The Mutual Legal Assistance Act limits the purposes for which a foreign state may use theinformation or evidence obtained to those listed in its mutual legal assistance request unlessGhana’s Attorney General and Minister of Justice grants prior, written consent. 414 This provisioncould be used to safeguard human rights; it could also be abused. The Harare Scheme and the411See Harare Scheme, para. 8 (2) (a).4121992 Constitution, Ch. V, art. 19.413See 1992 Constitution, Ch. V, art. 15 (2).414Mutual Legal Assistance Act, sect. 12.Index: AFR 28/004/2012 Amnesty International November 2012
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Ghana - Amnesty International

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