Kwaku Azar writes on Gregory Afoko
Afoko G. has been in custody since 2015. The facts of his case are well known and do not require reciting.
His first trial commenced in 2015 and was truncated by the prosecution in 2019. His second trial commenced in 2019 and resulted in a 4-3 hung jury in April 2023.
The AG, who is also the Justice minister, has signaled that he intends to go for a third bite.
Murder is, undoubtedly, a very serious offense and there is a strong public interest in convicting and punishing an offender, on grounds of accountability, deterrence, and protecting society.
Nevertheless, this public interest must be weighed against the costs of repeated trials to vindicate the values of a fair trial, justice, and to limit the abuse of prosecutorial discretion.
First, trials are costly, both from an emotional, physical, and financial perspective. Repeated trials magnify these costs.
Second, most defendants are no match for the state in terms of financial resources. A defendant’s ability to mount an adequate defense is decreasing in the number of trials.
Third, repeated trials put the defendant at a significant strategic disadvantage. Having exposed his defense on prior trials, he now must face a prosecutor who is thoroughly familiar with his story and will no doubt put this knowledge to good use in subsequent trials. In essence, he becomes an unwilling witness for the prosecution in subsequent cases.
Fourth, over time witnesses tend to forget events, which can increase the risk that their recollections become more congruent with the prosecution’s theory.
Fifth, being allowed to cycle through juries also increase the risk that eventually the prosecutor might find one that is amenable to its story. This can increase the risk of convicting an innocent defendant, contrary to the basic supposition that it is better to let the crime of a guilty person go unpunished than to condemn the innocent.
Finally, there is something inherently wrong in remanding a person who has not been convicted of a crime for 8 years. Escalating that wrong by further detaining him and asking him to go through more trials is cruel and unusual punishment.
To sum up, a retrial after a hung jury is manifestly unfair and unjust. It imposes emotional and economic hardships on the defendant, significantly advantages the prosecution, and increases the risk of erroneous conviction.
Article 19(7) provides that “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for the offence, except on the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”
Read literally, this article does not bar repeated trials after a hung jury because a jury that is hang has neither convicted nor acquitted.
But the Constitution must not be read literally to defeat its values, including the blessings of liberty that it promises us.
Article 19(7) on double jeopardy must be read purposively to bar the retrial of a defendant who has been in custody for 8 years, and has been subject to two trials, one truncated by the prosecution and the other by a hung jury.
#SALL is the cardinal sin of the 8th Parliament.
By Kwaku Azar