INTRODUCTION
In the late 1970s, Dr. Ohene – Djan, a prominent lawyer from Suyani was charged with the murder of an unidentified man who had allegedly attempted to rob his residence. The prosecution’s case was that the alleged robber was apprehended, beaten, and subsequently dragged along a rough, an untarred road by some residents of the vicinity, leading to his death. While many of the perpetrators remained unidentified, Dr. Ohene -Djan and a co-accused, Adu Yeboa, were arraigned before the court in the case: The Republic v. Ohene – Djan [1979] GLR 213–218.
After the prosecution closed its case, Dr. Ohene Djan’s defense team sought to change his plea from not guilty to murderto guilty of manslaughter under Section 239(2) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30). Section 239 (2) of Act 30 states:
“Where an accused is arraigned on an indictment for an offence and can lawfully be convicted on the indictment of any other offence not charged in the indictment, the accused may plead “not guilty” of the offence charged in the indictment but “guilty” of the other offence.”
At the time Ghana had no law on plea bargaining, however, through a plea deal, Dr. Ohene Djan pleaded guilty to the charge of manslaughter rather than murder. As a result, Dr. Ohene Djan was convicted of manslaughter and discharged on the murder charge. The trial judge then sentenced him to 12 months’ imprisonment for the offence of manslaughter. Following this, Adu Yeboa also changed his plea to guilty for manslaughter, which was similarly accepted, leading to his conviction and sentencing.
The plea deal drew so much controversy. The plea deal and the 12-month custodial sentence for a prominent figure in a murder case caused a national uproar. Many members of the public and legal commentators saw the decision as an abuse of the legal process; one that favoured the elite. Critics particularly questioned the procedural regularity of the plea deal, since Ghana at the time had no law on Plea Bargaining and the provision used, stated the plea deal could only be done at the stage of indictment. Critics further argued that the stage at which the deal was accepted, at the close of prosecution’s case was not in consonance with Section 239 (2) of Act 30.
Fast-forward to today, and plea bargaining has found a formal place in Ghana’s criminal procedure. Backed by legislation, guidelines, and judicial approval, it is hailed as a modern tool for efficiency, reform, and restitution. But the shadows of the Ohene Djan case linger. Are we witnessing a justice system streamlined for the better or a new avenue for the powerful to negotiate their way out of punishment?
This article examines Ghana’s plea bargaining regime; its origins, its justifications, its dangers, and the uncomfortable question at its core: “Is it really about justice, or just a polished platform for sweetheart deals?”
MYTHS ABOUT PLEA BARGAINING
Plea bargaining is a relatively new concept in Ghanaian criminal procedure, and several misconceptions surround its purpose and application:
Myth 1: Plea bargaining is a way for rich people, the elite and particularly politicians to escape punishment:
This myth mischaracterises plea bargaining. The process is governed by strict legal procedures, judicial oversight and is with the consent of victims. It is not a platform for corruption, but a tool for efficiency and justice. It is also one of the tools where Accused persons do restitution in criminal proceedings, particularly in cases where the state may have lost funds through acts of the Accused.
Myth 2: Plea bargaining means the Accused goes unpunished:
In most cases, plea bargaining leads to some form of punishment or sanction. It may involve a reduced sentence, restitution, a conviction to a lesser offence; or both a custodial sentence and restitution but not total exoneration.
Myth 3: Plea bargaining encourages crime:
On the contrary, plea bargaining aids in dealing with crime by securing quick convictions, decongesting prisons and encouraging offenders to reform, especially where remorse is shown and restitution made.
Myth 4: All plea bargains must end in a plea of guilty:
On the contrary, not all plea negotiations end in a plea of guilty. A plea agreement may result in a plea of guilty to the offence charged, a plea of guilty to a lesser offence or a withdrawal of a charge sheet, which does not result in plea of guilty. While many result in guilty pleas, this is not a legal requirement.
Myth 5: All Offences are subject to Plea Bargaining
On the contrary, not all offences are subject to Plea Bargaining. Under section 162 R of the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079), the following offences are not subject to Plea Bargaining:
a. Treason or high treason
b. High crime
c. Rape
d. Defilement
e. Genocide
f. Robbery
g. Kidnapping
h. Murder
i. Attempted murder
j. Abduction
k. Piracy
l. Hijacking
m. Offences related to public elections
WHAT IS PLEA BARGAINING?
Plea bargaining is a negotiated agreement between a prosecutor and an accused person (or their counsel) in a criminal case. It generally involves the accused pleading guilty to the offence charged, a plea of guilty to a lesser offence or a withdrawal of a charge sheet. In exchange, the accused is given a lighter sentence or may agree to restitution. It is a tool of prosecutorial discretion and efficiency, allowing the parties to avoid lengthy trials.
STATUTORY BASIS FOR PLEA BARGAINING
a. Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
– The Main Statute
The Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) is the main statute that regulates plea bargaining in Ghana. It amended the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) by inserting Sections 162A to 162 R, outlining eligibility, procedures, safeguards, and the roles of all parties.
b. The Office of the Special Prosecutor Act, 2017 (Act 959) [The OSP Act]
Section 71 of the OSP Act gives power to the Special Prosecutor to exercise plea bargaining under its own law. This enables the Special Prosecutor to engage in plea bargaining in cases it is investigating or prosecuting before the courts. Since section 71 of the OSP Act is a special law or provision, it takes precedence over provisions of the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) in cases being handled by the Office of the Special Prosecutor since the latter is a general law.
c. Guidelines for the Administration of Plea Bargaining
In September, 2024, the Office of the Attorney-General and Ministry of Justice promulgated the Guidelines for the Administration of Plea under the Criminal and Other Offences (Procedure) Act, 1960. The Guidelines ensure that plea bargaining in Ghana is fair, structured, transparent, and applied only in appropriate cases. The guidelines in addition to Act 1079 serve as a manual and handbook for prosecutors and defence attorneys through the conduct of plea bargains.
PURPOSE AND ESSENCE OF PLEA BARGAINING
The aims of plea bargaining include:
i. Ensuring Speedy Disposal of Criminal Cases
One of the core aims of plea bargaining is to reduce the time taken to resolve criminal cases. Criminal trials can be lengthy and complex, often burdening the courts with protracted litigation. By allowing the accused to plead guilty in exchange for a lesser sentence or charge, plea bargaining accelerates case resolution. This contributes to a more efficient judicial system, freeing up court time and resources. It also ensures that justice is not unduly delayed, a key element of fair trial rights.
ii. Decongesting Prisons
Plea bargaining helps reduce overcrowding in prisons by resolving cases quickly and allowing for alternative sentencing, such as fines and restitution orders. It aligns with the broader aim of penal reform and humane treatment of accused persons.
iii. Promoting Restitution and Victim Satisfaction
Plea bargaining can be victim-centered, especially in cases involving economic or property offences. The process may involve negotiations that include restitution or compensation to the victims as part of the bargain. This restorative justice element helps heal the harm caused and often provides the victim with a sense of closure, something that a protracted trial might not necessarily offer. In certain jurisdictions, victims are allowed to participate or be consulted during plea discussions, further promoting their satisfaction.
iv. Saving the State Time and Cost of Full Trials
Full criminal trials demand significant public resources; including prosecutors, defence counsel (sometimes at the state’s expense), judges and administrative support. Trials also consume time that could be used to address other cases. Plea bargaining lessens these demands by avoiding the need for lengthy proceedings. From the perspective of the state, a cost-effective strategy allows the prosecution to secure convictions and accountability without exhausting limited public funds.
v. Encouraging Cooperation with Law Enforcement, Especially in Economic and Organised Crimes
Plea bargaining is an essential tool in tackling complex criminal networks. In cases of financial crime, organised crime, money laundering and cybercrime, the full scale of criminal activity may only be uncovered with insider cooperation. Offering a plea deal encourages suspects to become state witnesses or provide critical intelligence in exchange for leniency. This helps dismantle larger criminal enterprises, enforce the law more effectively, and uphold public safety.
6. Types of Plea Bargaining
Section 162 A of Act 1079 stipulates three types of Plea Bargaining. These are:
a. Charge Bargaining
This involves a negotiation where the Accused person agrees to plead guilty to a lesser chargeor to fewer charges than what was originally filed. For instance, if the Accused person is charged with robbery, the prosecution may reduce the charge to stealing and the accused pleads guilty to the lesser offence. Charge Bargaining helps secure conviction where evidence for the higher charge is weak and saves judicial time and resources.
b. Sentence Bargaining
Under this type of plea bargaining, the Accused Person agrees to plead guilty in exchange for a lighter sentence or a specific type of sentence. The sentence could include restitution orders. For instance, an accused facing a potential 5-year maximum sentence may plead guilty for a 2-year custodial sentence or a fine and make restitution. This type of plea bargains helps avoids lengthy trials and gives the Accused Person a level of certainty in sentencing.
c. Non-Prosecution Bargaining
This is the type of plea bargaining where the prosecution agrees not to prosecute the Accused Person for certain offences or entirely, usually in exchange for cooperation, restitution, or some other condition such as testifying as a witness.
A person may for example agree to return stolen money, testify for the State, or assist investigationsand in return, the prosecution agrees not to file charges or discontinue prosecution. This type of Plea Bargaining is generally used in complex crimes such as economic and organised crimes leading to cooperation of suspects with law enforcement and prosecution. It also leads to recovery of stolen funds and other assets.
7. Initiation of Plea Bargaining
Under section 162 C of Act 1079 plea bargaining may be initiated by:
The accused person or their lawyer The prosecution.
8. Role of the Accused Person or Suspect
The accused:
May initiate plea negotiations May propose terms, such as offering restitution or disclosing information Must enter any agreement voluntarily and knowingly.
9. Role of the Prosecution
The prosecution drives the plea bargaining process and decides:
Whether to accept or initiate a plea. What terms are acceptable: for example restitution, sentence recommendation. Whether victims’ views have been considered.
Under section 162 C (2) of Act 1079, the prosecutor also has a duty to inform the Accused person of his rights including right to silence, presumption of innocence and right to be represented by Counsel.
10. Disclosures in Plea Bargaining
Under section 162 D of Act 1079, the prosecutor has the additional duty of affording the Accused the necessary facilities to defend himself. This includes serving on the accused person any document or material necessary for the Accused person to prepare a defence or to negotiate fairly. This under Act 1079 must be done before plea negotiations commence.
During plea negotiations, a prosecutor must act in the public interest, not merely to secure a conviction.
11. Role of the Courts
The court’s role in plea bargaining is to:
Ensure the agreement is voluntary and not induced by force or deception. Confirm that the accused understands the consequences of the plea. Approve or reject the plea bargain if it is not in the interest of justice. Determine the appropriate sentence within the bounds of the agreement.
12. What happens when Plea negotiations are commenced?
i. A formal request or expression of interest in negotiating a plea is made orally or in writing to the authorized prosecutor.
ii. Once interest is expressed, the case is referred to an authorized State Attorney if the prosecution was being done by a prosecutor other than one from the Office of the Attorney-General.
iii. The prosecutor and the defense (accused or their lawyer) negotiate the terms. Negotiable items include:
a. Charges to be reduced or dropped (charge bargaining),
b. Sentence recommendations (sentence bargaining),
c. Compensation or restitution to victims,
d. Any other conditions mutually agreed.
iv. Once terms are agreed, a written plea agreement is drafted, signed by the accused, the Accused’s lawyer (if any) and the authorized state attorney. A Plea Agreement Form has been provided at page 29 as Appendix B of the Guidelines for the Administration of Plea Bargaining.
13. How long must Plea Negotiations Take
Under section 162 C of Act 1079, when the parties agree to enter plea negotiations, either party shall in writing notify the court. The court may adjourn for the parties to reach an agreement. The provision further states that if within 30 days, the parties do not reach an agreement, the court may proceed with the case. In practice, the courts afford both parties reasonable time to negotiate. However, the courts do not also tolerate plea negotiations unnecessarily interfering with effective management of the courts duration for handling cases.
14. What Happens After a Plea Agreement is Reached?
Once an agreement is reached:
a. It is presented to the court in writing.
b. The judge questions the accused to ensure voluntariness.
c. If satisfied, the court records a conviction and proceeds to sentencing.
d. If not satisfied, the court rejects the agreement and the case proceeds to trial.
15. Enforcement of Plea Agreements
Plea agreements are legally binding. A breach by either party may result in restoration of the original charges and civil consequences where appropriate for example in the case of unpaid restitution. It is worthy of note that under section 162 L of Act 1079, a conviction and sentence of an Accused, obtain through plea bargain is final and not subject to appeal.
16. Plea Bargaining vs. Compensation, Restitution or Reparation under Section 35 of Act 459
Section 35 of the Courts Act, 1993 (Act 459) allows an accused person who pleads guilty in cases involving financial or property loss to the State to make restitution or compensation as part of the sentencing process. However, this is not the same as plea bargaining.
Plea bargaining is more broader and applies to almost every criminal offence excluding thirteen offences exempted offence exempted under Act 1079 and involves a negotiated agreement between the prosecution and the accused, which may result (often) in a guilty plea and an agreed sentence. In contrast, Section 35 of Act 459 specifically applies to offences involving loss to the State. While the court in plea bargaining plays a more limited role of either accepting or rejecting the agreement, under Section 35 (2) of Act 459 the judge plays a more active role because the compensation, restitution or reparation must be to the satisfaction of the court.
Thus, while both mechanisms promote restorative justice, plea bargaining is broader in scope and more structured in procedure while section 35 of Act 459 is limited to only financial loss to the State. Further, Plea Bargains may not always result in pleas of guilty but an Accused Person must necessarily plead guilty under section 35 of Act 459.
In the case of Republic v. William Ato Essien (suit no.: CR/0014/2020), High Court Judgment dated 12th October, 2023 involving William Ato Essien, the former CEO of defunct Capital Bank, Section 35 of the Courts Act, 1993 (Act 459) was invoked.
Subject to a plea of guilty, Essien offered to enter into an agreement with the Attorney-General to pay restitution to the state as allowed under Section 35 in lieu of a custodial sentence. Essien agreed to pay back GHS 90 million in instalments, with an initial payment of GHS 30 million made in court. This led to his conviction on his own plea and a deferred custodial sentence contingent on compliance with the payment terms.
However, after failing to honour the full repayment schedule, the court eventually sentenced him to a custodial term, reinforcing the principle that Section 35, while offering a pathway for restitution, does not guarantee immunity from imprisonment if the conditions of the agreement are breached.
17. The prevalence of Plea Bargains In Ghana.
There is very little open source data to understand the prevalence of Plea bargain in Ghana since it is relatively new to the criminal procedure of Ghana. However, the Office of the Special Prosecutor reports on its website https://osp.gov.gh/media_center/achievementsthat as at 2025 it has reached two (2) plea agreements under Act 959.
i. The Republic vs Yakubu & 5 Others (Suit No.: NR/TL/HC/CC1/2/25).
The facts of the case are that a joint audit by the OSP and the Controller and Accountant‑General’s Department uncovered that six individuals including school heads, payroll officers, and accountants had manipulated the Ghana Education Service (G.E.S.) payroll in the Northern Region by maintaining the names of deceased, retired, or missing staff. Between August 2022 and January 2023, this scheme led to the State unlawfully paying GH₵86,318.95 in net salary to a former teacher, Tahidu Yakubu, who had left the G.E.S. for another appointment. Further fraudulent reinstatements in January 2024 resulted in additional payments of GH₵47,064.34.
On 30 April 2025, the High Court in Tamale accepted a plea bargaining agreement whereby the six accused admitted guilt, repaid GH₵86,318.95 in restitution for unearned salary and GH₵20,000 in reparation, totaling GH₵106,318.95, and were accordingly convicted for the 22 charges against them, all under the plea bargaining provision of the OSP Act, 959 specifically section 71.
ii. The Republic v. Charles Bissue and Another (SUIT No.: CR/0407/2025)
The facts of this case are that Charles Cromwell Nanabanyin Onuawonto Bissue, former Secretary to the Inter-Ministerial Committee on Illegal Mining (IMCIM), and Andy Thomas Owusu were jointly charged with 15 counts of corruption and corruption-related offences. While Charles Bissue opted to stand trial, Andy Owusu entered into a plea bargain with the OSP. Under the agreement, which was accepted by the High Court on 4th June, 2025, Owusu pleaded guilty to two counts and agreed to pay a fine of 500 penalty units that is GHS 6,000 and make restitution of GHS 200,000 to the state. The OSP justified the plea agreement on the basis of Owusu’s cooperation, the strength of the case, the likelihood of conviction, the avoidance of delays, and the potential strain on witnesses.
18. Is Plea Bargain a Conduit for Sweetheart Deals?
The concern that plea bargaining may serve as a conduit for sweetheart deals is not without merit, especially in a jurisdiction like Ghana where perceptions of political interference and unequal justice remain high. However, Act 1079 introduces significant procedural safeguards that aim to dispel such fears.
Under Act 1079, every plea bargain must be transparently negotiated, documented in writing, subjected to prosecutorial oversight, and ultimately approved by a judge who must be satisfied that the agreement is voluntary, fair, and in the interest of justice. These requirements enhance transparency and accountability.
By institutionalising plea bargaining within a clear legal framework, Act 1079 arguably buries the ghost of Ohene Gyan. While risks of abuse cannot be entirely ruled out, the current framework is far more structured and reviewable, offering a legal firewall against the unchecked prosecutorial discretion.
By: Abraham Paa Brew-Sam, Esq. (B.Ed.; LLB; QCL; LLM)
Email: [email protected]
