Balancing Transparency and Fair Trial: Legal Perspectives on the Adu-Boahene Case

Presumption of Innocence vs. Right to Information
The cornerstone of Ghana’s criminal justice system — as with any democracy — is the presumption of innocence until proven guilty, enshrined in Article 19(2)(c) of the 1992 Constitution of Ghana. Lawyers for Mr. Adu Boahene and Ms. Boateng argue that the Attorney-General’s decision to publicly discuss the ongoing investigation compromises this right. In their letter, they assert that the Attorney-General’s actions amount to persecution, not prosecution, creating a “court of public opinion” that could prejudice potential judicial proceedings.

The lawyers contend that suspects must not be treated as criminals before formal charges are laid. According to their statement, “All professional investigations and not party investigations are devoid of razzmatazz and propaganda.” They further allege that the Attorney-General’s public statements could undermine their clients’ right to a fair trial, painting them guilty in the eyes of the public before any evidence is tested in court.

However, Professor Kweku Azar presents a counterargument grounded in democratic accountability. He emphasizes that when public funds are at stake, the government has a duty to inform the citizenry. Azar notes that “Public briefing ≠ public conviction,” asserting that transparency is vital to maintaining public trust in the justice system, especially in cases involving alleged corruption. His stance aligns with the principle of open justice, a long-standing doctrine recognized in Scott v Scott [1913] AC 417, where the courts upheld that justice should be administered in public to ensure accountability and fairness.

Media Trials and the Rule of Law
The tension between transparency and due process is not unique to Ghana. Globally, high-profile cases often attract intense media scrutiny, which can influence public perception and potentially affect judicial outcomes. The term “trial by media” has been used to describe instances where suspects are vilified before stepping into a courtroom, potentially eroding the principle of impartial justice.

In Sunday Times v United Kingdom (1979) 2 EHRR 245, the European Court of Human Rights acknowledged the importance of free expression but cautioned against prejudicial publications that could interfere with the administration of justice. Similarly, Ghana’s Supreme Court in Republic v Eugene Baffoe-Bonnie & Ors [2018] GHASC 4, underscored the need to balance media freedom with the right to a fair trial, warning against prejudicial pre-trial publicity.

Yet, as Azar argues, public briefings serve a broader purpose in democratic governance. They reassure citizens that justice is being pursued without fear or favour, deter potential wrongdoing, and ensure that government institutions remain accountable. “The AG has every right to inform the public,” Azar asserts, noting that the Attorney-General is not merely a prosecutor but a public official responsible for upholding the rule of law and maintaining public trust.

Legal Implications of Public Briefings
The legal team for the accused has raised concerns about procedural fairness, particularly the denial of access to counsel and the prolonged detention of their clients without formal charges. Article 14(3)(b) of the 1992 Constitution guarantees the right to be brought before a court within 48 hours of arrest, while Article 19(2)(f) ensures the right to legal representation. The lawyers allege these rights were breached, describing the situation as a “reset version of the rule of law.”

If proven, such violations could have serious implications for the case. Any evidence obtained during an unlawful detention or without proper legal representation may be deemed inadmissible, as held in Republic v Charles Wiredu [2003-2004] SCGLR 1077. Additionally, accusations of political bias could cast doubt on the impartiality of the Attorney-General’s office, further complicating proceedings.

Striking a Balance
What emerges from this legal standoff is a delicate balancing act. On one hand, suspects’ rights must be safeguarded to ensure the integrity of judicial proceedings. On the other, public officials have a duty to keep citizens informed, particularly when allegations involve public funds.

As Azar rightly points out, “Democracy thrives when people are informed; not when they are left in the dark.” However, the principle of “innocent until proven guilty” remains paramount. While transparency is crucial, public briefings must avoid prejudicial language or actions that could undermine the right to a fair trial.

The courts, not the media, must be the final arbiters of guilt or innocence. Both the Attorney-General and the defense counsel have crucial roles to play: one in upholding justice, the other in ensuring that the accused receive a fair trial. Ultimately, the pursuit of justice must not be overshadowed by political rhetoric or media sensationalism.

As the case unfolds, Ghanaians must remain vigilant — not only for the outcome of this case but for the broader implications it holds for the rule of law, media accountability, and public trust in the nation’s justice system.

By Stephen Apolima || Sankofaonline.com