When the Office of the Special Prosecutor stepped forward to announce 78 charges against former Finance Minister Kenneth Nana Yaw Ofori-Atta and seven others, the headlines practically wrote themselves. But the real drama was not the number of counts or the identities of the co-accused. It was the simple fact that the former minister is not in the country and has not been for some time.
The OSP had previously complained that several attempts to get him to appear for investigations had failed. Now the question is back on the national table with greater urgency. How do you try a man who is outside the jurisdiction?
This is not just a political question. It is a constitutional one, a procedural one, and, importantly, a practical one. Ghana’s law on trial in absentia is more nuanced than many assume. It is neither a free licence for prosecutors nor an iron shield for accused persons abroad. It sits somewhere in between, guided by constitutional safeguards but shaped by real world behaviour.
The General Rule: Criminal Trials Must be Held in Person
The 1992 Constitution begins from a simple and commonsense premise. A person facing a criminal charge has the right to be present at their trial. Article 19(3) is the clearest statement of this. The courtroom is meant to be a place where the accused confronts the case against them, hears the evidence and has a fair opportunity to respond.
But the Constitution also recognises that justice cannot be held hostage by avoidance. So Article 19(3) gives two exceptions to the rule. First, if a person has been duly notified of their trial and refuses to appear, the court may proceed without them. Second, if the accused behaves in a manner that makes it impracticable for the trial to continue in their presence, the court may order their removal and continue in their absence.
These two exceptions are narrow, but they are real. And they form the backbone of how trial in absentia works in Ghana.
The Supreme Court’s Guidance: When Absence Becomes a Choice
The leading case is the Supreme Court decision in Bonsu alias Benjilo v The Republic. Five accused persons were jointly charged with drug offences. Two were Nigerians who had been granted bail but later fled the country. They were later tried in their absence.
On appeal, the Supreme Court affirmed the validity of the proceedings. By absconding after being notified of the charges, the accused had signalled an unwillingness to face trial anywhere, whether before the lower tribunal or the higher tribunal to which the case was later transferred. Their conduct amounted to a voluntary waiver of the right to be present.
The Court’s reasoning was simply that the right to be heard is sacred, but it can be lost by deliberate refusal. A person who puts themselves beyond reach cannot rely on their own avoidance to invalidate the trial.
Rationale for In Person Trial: The Audi Alteram Partem Principle
The Courts in Ghana are extremely protective of the right to be heard. The audi alteram partem principle is the heartbeat of fair trial; call it a constitutional DNA. If a court denies a party the chance to be heard, the entire proceedings can be quashed.
But the law draws an important distinction between denial and refusal. Where the court gives a genuine opportunity to participate but the accused intentionally refuses to take it, the accused cannot later rely on the audi principle as a shield. The law will not allow a person to benefit from their own deliberate avoidance.
What the Criminal Procedure Code Adds
Act 30, Ghana’s criminal procedure code, mainly governs trials before magistrates and circuit courts. It allows personal attendance to be dispensed with in minor offences, typically those punishable only by fines or short terms of imprisonment. It also requires courts to issue warrants when accused persons fail to appear and have not pleaded guilty through counsel.
Act 30 does not create the power to try someone in absentia in serious criminal matters, such as the charges against the former finance minister. That power flows from the Constitution itself. Act 30 simply manages the mechanics of securing attendance.
What This Means for the Ofori-Atta Case
Thus, the real legal question may not be whether the OSP can try the former minister in absentia. The Constitution already provides for that possibility. The question is whether the constitutional conditions have been satisfied.
Has he been duly notified of the proceedings? And would he refuse to appear despite that notice? Would his absence be voluntary and deliberate?
If the answers lean in that direction, then Article 19(3) kicks in and a trial in absentia becomes legally permissible.
But even if a valid trial takes place and a conviction is secured, a deeper practical question remains. How will any sentence be enforced? Without his presence in the jurisdiction, enforcement becomes an entirely different challenge that may involve extradition, diplomatic processes or the cooperation of foreign authorities. A judgment without enforcement is an incomplete victory.
The Bigger Picture
Trials in absentia exist for one reason. The law refuses to allow justice to grind to a halt because someone decides not to show up. Courts around the world treat deliberate avoidance as a waiver of the right to be present. Ghana’s Constitution follows the same logic.
But the public must also understand the limits. A conviction in absentia may satisfy the legal process, but the real test lies in the state’s ability to enforce consequences and prevent impunity. In high-profile cases, the legal pathway may be clear, but the practical path often is not.
In the coming weeks, the courts will determine whether the former minister’s absence meets the constitutional threshold for trial without him. But one thing is already settled. Being outside the jurisdiction does not place anyone beyond the reach of Ghana’s law. It only raises the stakes for what happens next.
