The National Democratic Congress (NDC) Member of Parliament (MP) for Madina, Mr. Francis Xavier- Sosu, has initiated a private member bill that seeks to provide a legal regime on how people who are wrongfully jailed can be compensated by the state.
To be known as the Compensation Act, it will be enshrined in law the computation formulae to be used to award compensation to innocent people wrongfully incarcerated in line with Article 14 clauses (5) and (7) of the 1992 Constitution.
In furtherance of his quest, the MP who is also a well-known human rights lawyer has sent his proposals to the Clerk of Parliament requesting them to be drafted into a bill by the Legislative Drafting Office for subsequent consideration by the House.
Among other things, Mr. Sosu is proposing an Act of Parliament that would clearly define what amounts to wrongful arrest, unlawful detention, malicious prosecution, and wrongful conviction.
The Act, he envisages, would also stipulate a formula for calculating compensation on an hourly, daily, weekly, monthly and yearly basis, and “provide the circumstance under which a particular compensation must apply.”
Also, the MP proposes that the Act would provide the sources of compensation, which he expected to be the consolidated fund.
“But it must have a proviso that offending state agents who may be complicit in the violation will be surcharged with whatever compensation paid by the state to the person whose rights have been violated,” the proposals said.
In terms of how to activate the Act, the MP proposes that an application shall be made to the Solicitor -General, who will have the power to decide on the compensation to be paid.
“Where there is a disagreement as to the amount to be paid, a formal application can be made to the High Court for determination,” the proposals added
Article 14(5) of the 1992 Constitution stipulates that “a person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.”
Article 14(7) of the 1992 Constitution clothes the Supreme Court the power to determine the compensation that shall be paid to a person who is has served a jail term for an offense he never committed and has been duly acquitted by a court.
In his proposal, Mr. Sosu is of the view that despite the constitutional provisions mentioned above, the lack of legal guidance has made it very difficult for courts to determine what would amount to adequate compensation.
“In the absence of any clear legal basis for computation of compensation, the courts /judges are left to exercise their discretion. In the exercise of their discretion, the compensation awarded by the courts/judge to persons who have been wrongfully convicted, detained, and arrested have not been satisfactory as compared to the kind of wrong suffered by the person due to the wrongful acts committed by actors of state agencies,” the proposal said.
The MP cited the case of Eric Asante, a teacher who was wrongfully jailed on the accusation of defiling and impregnating a 14-year-old pupil.
After serving 15 years in jail, he was acquitted and discharged by the Supreme Court after a DNA test showed that he was not the father of the child born out of the said defilement.
Following his acquittal, Mr. Asante applied to the Supreme Court for compensation seeking almost Ghc7milion, but the court awarded him GhC 45,000.
Mr. Sosu said many people criticized the compensation awarded by the apex, describing it as insensitive
“If there were clear regulatory regimes that provided for computation of compensation, it would have guided the discretion of the court,” the proposal said.
The legislator also cited the case of Felix Nyaba, who was acquitted after serving 3 months in jail but was refused compensation based on technicalities.
“There have been several individuals who have been victims of wrongful arrest, malicious prosecution, unlawful detention, and wrongful conviction who have been unable to access any compensation due to lack of very clear rules on the rules on the type of compensation they can be entitled to as a result of the wrong done them,” the proposals added.