The recent, highly publicised Court of Appeal judgment in Sedina Tamakloe v. The Republic[1] has generated significant public commentary and legal debate.[2] The decision, where the penultimate appellate court of Ghana acquitted the Appellant of her 78 convictions[3] at the High Court over various offences ranging from stealing all the way to money laundering, has sparked significant debate over the state’s prosecutorial competence, the efficacy of the nation’s anti-corruption frameworks, and the broader integrity of the criminal justice system.
While considerable attention has been devoted to the substantive findings of the Court and their broader implications for Ghana’s anti-corruption and criminal justice frameworks, a distinct procedural question arising from the decision has received far less scrutiny. This question, which was the basis of the preliminary objection raised by the Principal State Attorney on behalf of the State, is the question of whether the Appellant, by absconding from the jurisdiction during the pendency of the matter (and while she was on bail) thereby making herself a fugitive, had accordingly precluded herself from the right to appeal the conviction of the trial Court.
The issue was summarised thus by Ankamah J.A at paragraph 35 of his judgment on behalf of the court:
“35. My Lords, as I previously mentioned, the Respondent raised and contended a preliminary legal objection in its written address. The Respondent asserted that the Appellant was a fugitive from justice who had absconded from the jurisdiction of this Court and consequently, was not entitled to invoke the appellate jurisdiction of this Court to challenge her conviction and sentence. The immediate observation that strikes me is not the substance of the objection but the procedure in raising and arguing the objection.”
The learned Justice of the appellate court, after expanding on the appropriate process for filing preliminary objections, addressed the question between paragraphs 44 to 46 of the Judgment by reference to the Constitution. The core resolution is stated thus:
“46. There is no provision in the Constitution 1992, which excludes from this Court’s appellate jurisdiction a person convicted and sentenced in absentia. Nor has the Respondent cited any Ghanaian authority which compels such a conclusion. The right of appeal conferred by Article 137 of the Constitution and section 11 of Act 459, is exercisable upon compliance with the conditions precedent prescribed by law. Having examined the Record of Appeal, I am satisfied that the Appellant complied with those requirements. Her notice of appeal was filed within time and in the manner prescribed by Rules 8, 38 and 39 of C.I. 19, as amended. That compliance vested in her the right to invoke the jurisdiction of this Court. It follows that the Respondent’s preliminary objection is without merit and is dismissed.” (Emphasis is mine)
These four paragraphs above constitute the only attention paid by the court to the issue. And, of course, that is not in any way an indictment on the court. Indeed, the legal community would generally support the Court’s straightforward resolution of the matter. Because the Constitution confers a universal right of appeal upon conviction without any statutory carve-out for fugitives, the Court was bound to dismiss the State’s preliminary objection. However, while the Court’s strict constitutional interpretation appears consistent with the existing legal framework, the circumstances of the appeal appear to be without direct precedent in reported Ghanaian appellate jurisprudence. This is arguably the first time in Ghana’s recent legal history that a high-profile criminal case has presented such unique facts, specifically, a convicted public official actively invoking the appellate process after having forcibly been returned to the jurisdiction through an extradition process.[4]
This novelty provides the Ghanaian legal system with the unique opportunity to examine the “Fugitive Disentitlement” doctrine. Essentially, this doctrine posits that a person who intentionally evades the legal consequences of a criminal conviction loses the privilege of appealing that conviction. The rationale behind this is fairly simple, the accused person has disregarded the authority of the justice system and therefore they should not be allowed to use the same judicial process to overturn their conviction. By becoming a fugitive, the appellant essentially disrespects the judicial process and waives their right to invoke the appellate jurisdiction of the courts. After all, if the appeal fails, the judicial system has no immediate means of enforcing the judgment against someone actively fleeing it. This also serves the utilities of discouraging flight, preserving respect for judicial authority, avoiding advisory opinions, and preventing manipulation of the appellate process.
While primarily identified with American criminal law, the Fugitive Disentitlement doctrine shares conceptual roots with English jurisprudence. Its development in the jurisprudence of the United States Supreme Court may be illustrated by two principal decisions. The Court first established the general rule in Molinaro v. New Jersey, holding that a fleeing defendant forfeits their right to an appellate hearing.[5] Second is the refinement of the rule in Ortega-Rodriguez v. United States (1993), which limited the doctrine to instances where the defendant’s flight directly disrupts the appellate process.[6] The principle is also recognised under English law through the case of Hadkinson v Hadkinson (1952)[7] where the English courts established that a party who acts in defiance of the order of a court may be denied the right to have the same order overturned. The rule was primarily applicable in cases where the appellant was in acting in contempt of court.
Although these jurisdictions developed the doctrine in different contexts, they share a common normative premise: a litigant who deliberately repudiates the authority of the court cannot ordinarily insist upon invoking that authority for personal advantage.
Ghanaian courts have recognised the principle with specific regards to contempt proceedings through the use of the “Purge Doctrine” as seen in cases such as Atta and Another v. Mohamadu[8] and the Montie 3 case[9]. Within the context of Ghanaian law, the principle holds that a party who has been found guilty of contempt of court cannot appeal the finding of contempt without first purging himself of the contempt.[10] This purge may be through any act that recognizes the authority of the court or rectifies the act or omission that caused the contempt. Accordingly Ghanaian legal practice has long recognised the inherent wisdom of the principle, a party who flouts the authority of the court should not be ordinarily allowed to use judicial resources in pursuit of his interests.
The development of this principle in contempt matters is truly only possible because the contempt powers of the superior courts have largely only been regulated by the practice directions and previous decisions of the courts themselves. While the Constitution[11] and the Courts Act[12] recognize the contempt powers of the courts, these powers, unlike other forms of criminal law,[13] are not specifically legislated.[14] Accordingly the jurisprudence on what amounts to contempt, the types of contempt, the various punishments for contempt and so on and so forth are almost entirely based on case law. Once again, this is distinct from other aspects of criminal law. In the realm of substantive criminal convictions and appeals, the Ghanaian courts do not enjoy the luxury of common law flexibility or inherent jurisdictional rulemaking. Here, the 1992 Constitution reigns supreme, and the constitution, as stated by the Court, does not provide any qualifications as to the right of appeal. Thus, even if the Court of Appeal found the policy rationale to be attractive, it is submitted that it could not have refused to hear the appeal.
It is instructive to note however that while the Constitution provides every person the right of an appeal, the procedure for how this right is exercised is a matter of statute and court rules. This distinction is important. While the Judiciary cannot, in the absence of constitutional or statutory authority unilaterally deny an appeal, Parliament could consider whether a carefully tailored statutory framework may regulate the exercise of that right where an appellant has deliberately absconded from the jurisdiction. A possible approach would be by amending the Courts Act, and providing for the suspension or stay of an appeal while an appellant deliberately remains beyond the jurisdiction of the court. Whether such legislation could validly regulate an appeal which Article 137(2) provides shall lie “as of right” would, however, require heavy constitutional scrutiny.
The principal objection is that Article 137(2) guarantees a right of appeal “as of right”, and Parliament cannot, through ordinary legislation, qualify a constitutional entitlement by denying that right to a particular class of appellants. This is arguably discriminatory. The immediate response to this is that it would not be the first of its kind. Parliament has long prescribed the manner in which constitutional rights of access to the courts are exercised. Time limits for commencing appeals, requirements for filing notices of appeal, security for costs in appropriate proceedings, and leave requirements in specified cases all operate as statutory or procedural conditions governing access to appellate jurisdiction.
Take the State Proceedings Act for example, which requires claimants who wish to sue the state to give the state not less than 30-days’ notice before filing the actual claim,[15] and directs Courts to require claimants who have failed to do so to comply with the provisions rather than dismissing the claim outright,[16] provisions such as these have not been understood as abolishing access to the courts but as regulating its exercise in furtherance of legitimate objectives such as procedural fairness, judicial efficiency, and the orderly administration of justice. Other enactments have also made access to the courts conditional upon the satisfaction of certain matters.[17] The Rules of the various courts also make the appellate processes of many of the courts conditional upon the satisfaction of certain steps. Accordingly, a well-crafted requirement that targets those who have deliberately absconded and are not present in the jurisdiction at the time of filing the appeal should cater for this.
The distinction being made is regarding regulation as against nullification. Parliament cannot ordinarily take away a constitutional right. It may, however, make laws regulating its exercise through reasonable procedures consistent with the constitution. A statute that clearly and unequivocally bars a person from appealing their conviction would almost certainly be roundly condemned by all manner of persons. However, one that merely suspends that right until the person wilfully submits themselves back to the jurisdiction or provides some degree of discretion to judges would be more easily received as a recognised regulation of a right rather than its complete proscription.
A further counterargument against the application of the doctrine would be with regards to the sheer risk of cementing a substantial miscarriage of justice. There is a real danger that focusing on the fugitive status of the appellant can lead to the permanence of abhorrent convictions and legal precedents. Ghanaian jurisprudential history has seen its fair share of decisions made without consideration for the fairness of the trial. In such situations, it is more in the public interest that appellate courts step in to clarify the position of the law. It is thus submitted that any such enactment must not dictate a mandatory exclusion from appeal but must give the courts the discretion to refuse to proceed subject, of course, to stringent considerations and factors.
On the law as it presently stands, the Court of Appeal’s treatment of the preliminary objection is understandable. Article 137 provides the right of appeal and refusing to recognise it would invariably amount to the Court grafting into the Constitution a restriction that neither the constitution nor parliament has provided. This would no doubt be seen as an affront to the powers of Parliament. That notwithstanding, the facts of this case have exposed a gap (albeit minor) in our appellate framework. Most people would agree that a person who deliberately flouts the authority of the court should not ordinarily be permitted to invoke that same authority for his own benefit. The challenge is therefore not whether the doctrine is desirable, but how it should be introduced consistently with the Constitution.
The Tamakloe case provides an appropriate occasion for Parliament and the legal community to consider whether this gap in Ghana’s appellate framework should be addressed. This should be done through carefully calibrated wording that implements the Fugitive Disentitlement Doctrine in a manner that preserves judicial discretion, that is applicable only where the appellant has wilfully absconded from justice and where the use of the discretion would not result in a substantial miscarriage of justice. In doing so, Ghana would not diminish the constitutional right of appeal. Rather, it would reinforce the equally fundamental constitutional principle that the administration of justice cannot be invoked by those who deliberately place themselves beyond its reach.
[1] Sedina Christine Tamakloe Attionu v The Republic (CA, 30 July 2026) Suit No H2/17/2026 (unreported).
[2] See, eg, ‘Top Story: Sedina Tamakloe-Attionu Acquitted | AG Appeals to Supreme Court, NPP Alleges Politics’ (JoyNews, 31 July 2026); see also ‘Sedina Tamakloe Acquittal: I disagree with the Court of Appeal’s ruling’ (Adom TV, 31 July 2026) https://www.youtube.com/watch?v=kSsFGCE7bd4 accessed 1 August 2026; and commentary on public perception in ‘Filing an Application Doesn’t Mean It Will Be Granted’ (JoyNews Prime Morning, 31 July 2026) https://www.youtube.com/watch?v=dNQpf0xddEc accessed 1 August 2026.
[3] 1 count of Unauthorised Commitment Resulting In Financial Obligation For The Government, 2 Counts Of Improper Payment Of Public Funds, 3 Counts Of Causing Loss To Public Property, 2 Counts Of Contravention of the Public Procurement Act, 9 counts of Willfully Causing Financial Loss To The State (Sole), 11 counts of Conspiracy To Willfully Cause Financial Loss To The State, 12 counts of Willfully Causing Financial Loss To The State (Jointly), 4 counts of Money Laundering, 9 counts of Conspiracy To Steal, 9 counts of Conspiracy To Steal And Stealing, and 17 counts of Stealing.
[4] The author has been unable to identify any reported Ghanaian appellate decision addressing the availability of an appeal by a convicted fugitive who was subsequently returned through extradition.
[5] Molinaro v New Jersey 396 US 365 (1970).
[6] Ortega-Rodriguez v United States 507 US 234 (1993). There is the third case of Degen v. United States (1996) which also often included in the legal development, but it is not included in this essay because it regards civil forfeiture and not strict criminal law.
[7] Hadkinson v Hadkinson [1952] P 285.
[8] Atta And Another V. Mohamadu [1980] GLR 862–866
[9] Abu Ramadan v Electoral Commission (In re Montie FM) (SC, 27 July 2016) Suit No J8/108/2016 (unreported).| See also the cases of Republic v Numapau, Ex parte Ameyaw II and Others (1999) JELR 68151 (SC); The Republic v Daniel Ofori & 2 Ors, Ex parte Yaa Amampene (2019) JELR 107388 (HC); Republic v High Court, Accra, Ex parte Afoda and Another (2001) JELR 68257 (SC); Professor Collins Fosu v First Trust Savings & Loans and Others (2019) JELR 67158 (HC).
[10] Note that purging only applies to appeals. Per the case of Republic v High Court (Land Division), Accra; Ex parte Kennedy Ohene Agyapong (SC, 20 October 2020) Suit No J5/62/2020 (unreported), the apex court has held that a party who brings a certiorari application challenging the very validity of the contempt conviction for lack of procedural fairness or legitimacy may be heard even though they have yet to purge themselves of the contempt.
[11] See 126(2) of the 1992 Constitution
[12] See Section 36 of the Courts Act, 1993 (Act 459) (As amended)
[13] Note that contempt is described as “quasi-criminal” thus some aspects of its application must comply with criminal standards and others do not need to.
[14] See Article 19(12) of the 1992 Constitution
[15] State Proceedings Act, 1998 (Act 555), S. 10
[16] Ibid, S. 20(2)
[17] See, for instance, the Limitation Act, 1972 (NRCD 54), which restricts the timeframe within which civil actions may be instituted. See also Order 24 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) regarding the court’s power to order a plaintiff to provide security for costs as a condition for proceeding.
BY; Gilbert Kekeli Dzeketey Esq.
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