A businessman, Andrews Bediako, has invoked the original jurisdiction of the Supreme Court to challenge a provision of the Tribunals Act, 2026 (Act 1181), which requires accused persons to verify the factual basis of their defence by affidavit.
In a writ against the Attorney-General, Mr Bediako is seeking declarations that Section 35 of the Act, particularly the requirement under subsection (2) for an accused person’s statement of defence to be verified by affidavit, is inconsistent with constitutional protections afforded to persons facing criminal charges.
The action invokes Articles 2(1) and 130(1)(b) of the 1992 Constitution, which provide the basis for constitutional enforcement and the Supreme Court’s jurisdiction to interpret and enforce the Constitution.
The plaintiff argues that the requirement to swear an affidavit setting out the facts on which an accused person intends to rely in their defence raises concerns about the presumption of innocence and the constitutional right not to be compelled to give evidence.
The Contested Provision
Section 35 of Act 1181 sets out the procedure for an accused person who wishes to oppose a charge before a tribunal.
Under subsection (1), an accused person is required to file an answer to the summons within ten days after service and may raise a preliminary objection in that answer.
Subsection (2) further provides that the answer must contain a statement of the facts on which the accused intends to rely, verified by affidavit. Where a preliminary objection is raised, the accused must also state the law supporting the legal arguments to be relied upon.
The provision also requires an accused person to provide at least seven copies of the defence for use by members of the tribunal and service on the relevant parties. The registrar is required to serve a copy of the defence on the Republic as soon as practicable after it is filed.
Under subsection (5), an accused person may apply to the tribunal for further and better particulars of the charges after filing the defence. Subsection (6), however, provides that the accused shall not amend the defence to add to or alter the defence to the charges made.
Mr Bediako’s challenge is directed primarily at the requirement that the factual basis of the defence be verified by affidavit and the consequences of the statutory framework established under Section 35.
Presumption of Innocence and Right Against Compelled Testimony
In his statement of case, the plaintiff contends that requiring an accused person to swear to the factual basis of a defence before the prosecution has established its case amounts to an impermissible demand for a sworn evidential account.
He argues that this requirement is inconsistent with Article 19(2)(c) of the Constitution, which protects the presumption of innocence, and Article 19(10), which provides that no person charged with a criminal offence shall be compelled to give evidence at the trial.
According to the plaintiff, the requirement risks shifting the practical burden of establishing the facts surrounding a criminal charge onto the accused person before the prosecution has discharged its constitutional burden of proving the charge.
He further contends that the provision could transform an accused person from a beneficiary of the presumption of innocence into a participant required to establish the factual basis of their own defence.
The plaintiff maintains, however, that his action is not a challenge to Parliament’s general authority to establish procedural rules for criminal proceedings or to require reasonable notice of a defence. Rather, his objection concerns the mandatory requirement that the accused’s factual defence be verified by affidavit.
Challenge to Restriction on Amending a Defence
The writ also challenges Section 35(6), which prohibits an accused person from amending a defence to add to or alter the defence to the charges made.
Mr Bediako is seeking a declaration that this restriction, insofar as it operates as an absolute prohibition against amending a defence, is inconsistent with Article 19(1) of the Constitution.
He argues that the provision should not be applied in a manner that undermines the constitutional protections available to an accused person during criminal proceedings.
He is asking the Supreme Court to interpret Section 35 in a manner consistent with Articles 19(1), 19(2)(c) and 19(10) of the Constitution.
The plaintiff also seeks a declaration that Section 35(1)(a) should not be interpreted or applied in a manner that prejudices an accused person for exercising the constitutional right not to give evidence.
Reliefs Sought from the Supreme Court
Among the reliefs sought, Mr Bediako wants the Court to declare Section 35(2) unconstitutional to the extent that it requires an accused person’s statement of defence to be verified by affidavit.
He is also seeking a declaration that the requirement to disclose and verify under oath the factual basis of a defence before the prosecution has established its case is inconsistent with Article 19(2)(c) of the Constitution.
Further, he wants the Court to declare the restriction under Section 35(6) unconstitutional to the extent that it prevents an accused person from amending a defence in a manner inconsistent with Article 19(1).
The plaintiff is asking the Court to grant any further or other orders it considers appropriate to give effect to the constitutional rights of an accused person.
What the Case Could Mean
The case places before the Supreme Court a question that sits at the intersection of Ghanaian criminal procedure and constitutional rights. It asks whether Parliament’s power to prescribe procedures for tribunal proceedings extends to requiring accused persons to verify their factual defences by affidavit and restricting their ability to amend those defences.
A determination of the issues could clarify the extent to which procedural requirements under the Tribunals Act must yield to the constitutional protections of the presumption of innocence, the right against compelled testimony and the right to a fair hearing.
The outcome will depend on the Court’s interpretation of the challenged provisions against the guarantees contained in the 1992 Constitution. Until the Court determines the matter, the plaintiff’s claims remain allegations of constitutional inconsistency rather than an established finding that the provisions are invalid.
