1.0 Introduction

The arrest of a suspect often marks the point at which the coercive power of the State is most acutely felt. It is also the point at which constitutional protections are most needed. One recurring question in Ghanaian criminal practice is whether a suspect, once arrested, can be compelled to answer questions, particularly factual or work-related questions, on the basis that such questions are “simple,” “neutral,” “not rocket science,” or unrelated to legal guilt. The short answer is no.

The longer answer reveals important constitutional principles that are frequently misunderstood or ignored.

In examining this issue, it is necessary to consider the constitutional foundation of the right to silence, the absence of any distinction between factual and legal questions, and the legal significance of the police caution.

Equally important are the suspect’s right to counsel and the corresponding duty on the police to pause questioning, the limited and narrowly defined exception to the right to silence, and the legal consequences that flow from any form of compulsion. Together, these considerations define the lawful boundaries of police questioning after arrest and protect the integrity of the criminal process.

2.0 The Constitutional Foundation

Everyone is presumed to be innocent until proven guilty when caught with the law. Article 19 (2) (c) of the 1992 Constitution states that:

“A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.”

The right of a suspect to remain silent is firmly embedded in the 1992 Constitution of Ghana. Article 19(10) of the 1992 Constitution states that:

“No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

Although this provision speaks directly to trial, Ghanaian constitutional practice has consistently recognised that the protection against self-incrimination begins from the moment of arrest or detention, not only at the courtroom.

In the case of Okyere and Another v. The Republic, Hayfron-Benjamin J. (as he then was) stated that:

“Where an accused person in the exercise of his constitutional right refuses to give evidence at his trial, fails or refuses to give a statement to the police when he is charged with a crime, the trial judge ought not to infer guilt from the accused person’s constitutional right to keep silent.”

Article 14(2) of the 1992 Constitution ensures that:
“A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.”

Closely linked to this is Article 19(2)(f) of the 1992 Constitution, which guarantees the right of a suspect to be represented by a lawyer of his or her choice. It states that
“A person charged with a criminal offence shall be permitted to defend himself before the court in person or by a lawyer of his choice.”

These rights stated above attach before questioning, not after a statement has been taken. Together, these provisions establish a constitutional zone of protection around an arrested person.

3.0 No Distinction Between Factual and Legal Questions

A common justification offered by investigators is that a suspect must answer questions that are “factual,” “basic,” or “work-related.” This position has no constitutional or statutory basis in Ghanaian law.

The Constitution does not classify questions into legal and non-legal, or incriminating and non-incriminating, in advance. What appears factual on the surface may later become incriminating in context. A question about a suspect’s work, business activities, or professional role may form the very foundation of a criminal charge. The law, therefore leaves the choice entirely to the suspect: to speak or to remain silent. In the case of Rothman v. The Queen, Lamer J. held that:

“The right of a suspect not to say anything to the police … is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by Law.

It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise.”

4.0 The Police Caution and Its Meaning

One of the most jealously guarded rights that is guaranteed to an accused person is the right against self-incrimination. It is one of the first things every accused person hears about immediately he is arrested.

In the practice of arrest, the police often take statements from the criminal suspect. The general principle of the criminal law is that the refusal by an accused person to make a statement, when cautioned by the police, must not be construed as evidence of his guilt.

Once a person is arrested, the administration of a police caution is not a ceremonial act. It is a substantive protection. The caution informs the suspect that:

• they are not obliged to say anything; and
• anything they say may be used in evidence.

When a suspect invokes the above rights, especially by indicating a desire to speak only in the presence of a lawyer, questioning must cease. Continuing to insist on answers because the question is work-related defeats the very purpose of the caution.

In Moro v. The Republic, the police, in charging the accused with possession of Indian hemp, cautioned and asked whether he wished to make a statement. The accused stated, “I have nothing to say. I will give my statement in court.” The trial judge convicted the accused. On appeal, the court upheld the conviction on grounds that the guilt of the accused was not inferred only from his refusal to make a statement when cautioned.

There was enough evidence to convict the accused. Roger Korsah J. (as he then was) observed that the refusal by the accused person to make a statement, when cautioned by the police, did not constitute evidence of his guilt. As the court indicated, this principle can be inferred from the words employed by the police to caution suspected criminals, known as the Miranda rights.

What then is Miranda Rights? The wording used when a person is read the Miranda Warning, also known as being ‘Mirandized,’ is clear and direct:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Embedded in this cautionary statement are the force and spirit of the right to silence. If the accused is advised that “he is not obliged to say anything”, then his compliance with that advice cannot be fairly construed subsequently as evidence of guilt. Such refusal to make a statement can never be interpreted as acceptance of guilt.

In most cases, suspects in the custody of the police give cautionary and charge statements to the police. In the cautioned statement, the accused may either deny the offence or give a confession statement. A confession is a statement by a suspect which, when taken together with other facts and circumstances, constitutes an admission or participation in the commission of an offence. In the most often cited case of Frimpong alias Igbo man v. The Republic, the court describes a confession statement in the following terms:

“In those statements exhibits E and E I, the appellant opened his mouth very loosely as if he was suffering from a mouth diarrhoea. This is, in essence, what is called a confession statement, where the statement admits of the declarant’s involvement in the commissioning of the offence.”

Thus, the accused’s failure to restrain his tongue led to his self-incrimination.

In all criminal procedures, the importance of a confession statement cannot be exaggerated. Its sanctity lies in the principle of “Optimum habemus testem confitentem reun”, which means that the very best witness is an accused person who confesses to his own guilt. Once a statement admitting to a criminal offence is admitted, then, unless the accused has a defence in law, a conviction is guaranteed. This may be the reason for the stringent adherence to the application of the principle of voluntariness in obtaining such a statement.

A confession statement shall be given in the presence of an independent witness. The rule is that, in criminal cases, an accused cannot be presumed to be guilty on grounds of mere silence or implied conduct. We cannot, therefore, infer a confession by silence or inaction in a situation on the basis of Article 19(10) of the 1992 Constitution which is to the effect that no person who is tried for a criminal offence, shall be compelled to give evidence at the trial and the presumption of innocence in Article 19(2)(c).

5.0 Right to Counsel and the Duty to Pause

An accused person’s right to be represented by a lawyer is a fundamental component of our criminal justice system. The reason for an accused person’s right to a lawyer is to help restrain his tongue, because careless speech may set an entire forest ablaze. Lawyers in criminal cases are necessities, not luxuries.

The 1992 Constitution recognises that the right to a fair trial may be of no avail without effective assistance of counsel. The right of the accused to counsel of his choice is therefore guaranteed even though he may choose to defend himself in person. It is now well settled that articles 14(2) and 19(2) (f) of the Constitution vest an accused person with the right to defend himself either in person or by a lawyer of his choice.

When a suspect states that he will not answer questions until his lawyer is present, the obligation on investigators is clear: pause the interrogation. The right to counsel is not conditional upon the type of question being asked. It applies across the board. An accused person is entitled to refrain from answering a question put to him by the police for the purpose of discovering whether he has committed a criminal offence.

A fortiori he is under no obligation to comment when he is informed that someone else has caused him of an offence. Silence of the accused alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the accused accepts the truth of the accusation.

Any attempt to pressure a suspect into answering questions in the absence of his lawyer amounts to a constitutional violation and renders any resulting statement vulnerable to exclusion.

6.0 The Only Narrow Exception

The only category of information a suspect may be required to provide relates to basic identification particulars, such as name or address, for administrative purposes. Beyond this narrow exception, all substantive questioning is subject to the right to silence. Questions about occupation, business dealings, or work processes are not administrative; they are investigatory.

In Moro v The Republic cited above, the court stated an important exception to the right to silence to the effect that in exceptional circumstances, where the facts of the case were such that the accused, in the ordinary course of event, ought to say something in answer to the charge, and he refused to make any statement, the court would be entitled to comment adversely on his failure to make a statement when the opportunity was offered; and the court might justifiably ground a conviction on such refusal if, but only if, there was sufficient evidence available which, if believed, might support a conviction, yet taken together with the refusal by the accused to give an explanation or disclaimer, the refusal would add colour to the evidence and lead the court to conclude that the accused was guilty of the of the offence charged.

To put it another way, while a statement made by the accused, at the earliest opportunity, may cast doubts on the prosecution’s case, which doubts would ensure to the benefit of the accused, the absence of a statement can raise no such doubts in his favour.

When the State uses its power to prosecute an individual for a criminal offence, the individual ought not to be required to assist the State in the investigation or trial of the offence. The onus of proof lies on the State to establish the guilt of the accused, not the accused to assist the State to establish his guilt.

7.0 Consequences of Compulsion

The presumption of innocence is closely related to the protection against self-incrimination. If the presumption of innocence places a burden on the State alone to prove the accused’s guilt beyond a reasonable doubt, then it follows that the accused cannot be made to offer evidence or information that would assist the State in that endeavour. Compelling a suspect to answer questions after arrest has serious legal consequences.

Statements obtained under such circumstances may be challenged as involuntary and unconstitutional. More fundamentally, the practice undermines public confidence in the criminal justice system and erodes the culture of rights guaranteed by the Constitution.

The right against self-incrimination is a principle of fundamental justice. It is an elemental canon of the Ghanaian Criminal Justice system. it is said to be based on the principle of individual sovereignty and on an assertion of human freedom. Everyone is protected by our law from compulsory incrimination of themselves. This protection is part of that general security which the Constitution affords against incriminating oneself under compulsion or coercion.

The dictates of logic and law forbid the compulsion of men to incriminate themselves in an adversarial criminal trial. The doctrine that one accused of a crime could not be compelled to testify against himself rests on the law of nature and is embedded in our system as one of its great and distinguishing attributes.

Efficiency in investigation cannot trump constitutional protections. Rights exist precisely to restrain the State at moments of maximum power.

8.0 Conclusion

In Ghana, a suspect cannot be compelled to answer any question, either factual, work-related, or otherwise, after arrest. The right to remain silent and the right to a lawyer are not qualified by the nature of the question. They are anchored in the status of the person as a suspect. The insistence that certain questions must be answered because they relate to one’s work is not law; it is convenience masquerading as authority. A constitutional democracy demands better.