Ghana’s criminal process has traditionally been structured around a simple principle: criminal cases are prosecuted in the name of the Republic, not the individual victim. While victims, often referred to as complainants, are central to proving the facts of the case, their legal role has historically been limited. They report the offence, assist the police with investigations, and testify in court where necessary, but they do not control the direction or outcome of the prosecution.

In a previous article (read here), I explained that the complainant is not a party to criminal proceedings. The authority to initiate, continue, or discontinue a case lies with the prosecution, acting on behalf of the state. Even in situations where the complainant loses interest or seeks to withdraw, the case does not automatically end. The prosecutor retains the discretion to proceed where the evidence supports it or where the public interest requires it. In that sense, the complainant’s role is important but ultimately not decisional. I also noted, in passing, that the newly introduced plea bargaining regime affords the complainant a limited but meaningful audience in plea negotiations. This article focuses specifically on that development.

Before we dive in, it is important to note that the Act does not refer only to the complainant. It consistently uses the phrase “victim or complainant.” This distinction is deliberate. A victim is not always the complainant, and a complainant is not always the victim. For example, a complainant may be a reporting witness, a relative or even a corporate representative. A victim may be different from the person formally listed as the complainant in the docket. By framing the provision in this way, the law intentionally broadens participation beyond the person who formally initiated the case to include the person or entity directly affected by the offence. Therefore discussion here extends to both categories.

The introduction of plea bargaining under the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079), the ‘Plea Bargaining Act’ inserts the complainant into a stage of the criminal process from which they were previously absent: the plea negotiation and resolution of the case. While plea bargaining is primarily a negotiation between the prosecution and the accused, the new law requires that the complainant be brought into that process in specific, structured and meaningful ways. This reflects the fact that plea agreements have a significant impact on complainants and their notion of justice. Plea negotiations cover withdrawing or dropping charges, changing charges to lesser offences, or reducing the punishment. These tell you the scope of the complainant’s involvement and what they can influence.

First, the prosecutor is required to inform the complainant of the agreement that has been negotiated with the accused before concluding the process. This is a significant procedural step. It ensures that plea negotiations do not occur entirely behind the scenes, without the knowledge of the person who is the most directly affected by the offence. It may not be seeking their consent or permission to commence the plea bargaining process but the complainant’s involvement comes before the agreement is concluded. At that stage, their concerns can still be factored in by the prosecutor in the final agreement. Note that the prosecutor must take all reasonable steps to reach the complainant, victim or their representative. After that effort, the process can lawfully proceed without their consultation.

After the complainant is informed, the complainant must also be given an opportunity to make representations regarding what has been negotiated with the accused. This creates a formal avenue through which the complainant can express concerns about the proposed agreement, including issues relating to fairness, restitution/compensation, or the adequacy of any proposed charges or sentence. The prosecutor is not obligated to make any changes to the agreement after hearing the complainant; they may choose to proceed despite the representations made. The plea agreement is then filed, but the complainant is not a signatory to it. However, they must be served with a copy.

Next, the Act permits the complainant to file a statement detailing their objection to the filed plea agreement if they are not satisfied with the terms that the prosecutor settles on with the accused. This is one of the most important developments in the law. The objection does not give the complainant power to override the agreement, but it elevates their concerns into the formal record of the proceedings. It requires the court to be aware that the proposed resolution is contested from the complainant’s perspective.

Finally, and probably the most important, at the hearing of the plea agreement in court, section 162G(5) reads as follows:

“The court may inquire from a victim or a complainant of the case whether the victim or complainant has any objection to the plea agreement and the court shall take into consideration the views of the victim or complainant in considering the plea agreement.”

Even where a complainant is unable to file a formal objection, the Act allows the complainant to be heard at the plea hearing after the agreement has been read by the prosecutor. Note that at this stage, the prosecutor would have notified them and heard their concerns already. Once the objection is on record, the court is required to consider the views of the complainant when determining whether to accept the plea agreement, especially in relation to the sentence in the agreement.

This introduces a layer of judicial oversight that is informed not only by the prosecution and the defence, but also by the complainant’s position. Admittedly, the court is not bound by the complainant’s objections, but it also cannot ignore them. Since the court “may” inquire during the trial, it may be safer to have a filed objection on record. In practice, our criminal courts give due regard to complainants at such hearings, which is highly commendable.

These changes do not transform the complainant into a party to the proceedings. The prosecution still retains control over whether to enter into a plea agreement, and the final decision remains with the court. Also, the law does not give the complainant the legal standing to apply to have the judgement set aside after the plea agreement has been accepted by the court. However, the complainant is no longer a passive observer when the parties decide to resolve the case.

The shift is therefore best understood as a movement from passive to a more structured participation. The complainant now has a recognized procedural voice and it is one that can influence, though not determine, the outcome of plea negotiations. In practical terms, this places new responsibilities on prosecutors to engage complainants meaningfully before concluding plea agreements. It also requires complainants to understand both the significance and the limits of their role: they can be heard, and they can object, but they do not control the case.

Ghana’s plea bargaining framework thus reflects a broader evolution in criminal justice. Of course, the system continues to revolve around decisions made by the state, but gradually, it is acknowledging the place of the victim within it.

Additional resources you can download or read:

1. Plea Bargaining Act, Officially called the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079)
2. 2024 Practice Directions on the Plea Bargaining Act

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