The right not to be compelled to give evidence: Article 19(10) provides that no person tried for a criminal offence shall be compelled to give evidence at the trial. The plaintiff contends that evidence does not stop being evidence because it takes the form of an affidavit rather than oral testimony, and that the question is one of substance, not form. An affidavit verifying the defence is a sworn statement that can become evidential material in the proceedings. Parliament, he submits, cannot do indirectly what article 19(10) forbids it to do directly. He cites Republic v High Court, Accra; Ex parte Opuni (No. 2) for the importance of the accused's genuine and meaningful choice whether to testify, and argues that compelling a sworn account at the outset removes that choice, since the accused must speak before deciding whether to stay silent. He also points to section 174(1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and section 96(1) of the Evidence Act, 1975 (NRCD 323), which place the call to enter a defence after the prosecution has made out a case.

Notice of defence versus compelled evidence: The plaintiff accepts that procedure may legitimately require an accused to give notice of the nature of the defence and to identify the legal or factual issues in contest, and he acknowledges the efficiency aims behind section 35. His complaint is narrower: that requiring the accused personally to swear to the truth of the facts crosses the constitutional line. He says that if the words "verified by an affidavit" were removed, section 35(2) could operate as an acceptable disclosure provision.

The ten-day requirement: On section 35(1)(a), the plaintiff does not say every statutory time limit is unconstitutional. He argues that the provision must be read subject to articles 19(2)(c) and 19(10), so that an accused who declines to file a sworn factual defence is not treated as having admitted the charge, silence is not treated as evidence of guilt, and the Republic must prove its case independently of that silence.

The bar on amendment: Section 35(6), in the plaintiff's submission, is a separate problem. Trials develop as evidence emerges, and new documents, witnesses or expert evidence may require the defence to respond. An absolute ban on adding to or altering the defence could stop an accused from answering the case actually presented, undermining the fair hearing guarantee in article 19(1). At a minimum, he says, the tribunal must keep its inherent power to allow amendments where justice requires, and if the provision is meant to operate absolutely it is unconstitutional to that extent.

Parliament's power: He relies on articles 1(2) and 93(2) for the proposition that Parliament's legislative power is subject to the Constitution and that efficiency or case management cannot justify a provision that contradicts an express constitutional right.

Jurisdiction and Remedies

On jurisdiction, the plaintiff cites articles 1(2), 2(1) and 130(1), together with Francis Osei-Bonsu v Attorney-General and Justice Abdulai v The Attorney General (J1/07/2022, 9 March 2022), where the Court said no arm of government, Parliament included, is a law unto itself.

The plaintiff asks for the following declarations: that section 35(2), insofar as it requires the defence facts to be verified by affidavit, is inconsistent with article 19(10) and void to that extent; that it is inconsistent with article 19(2)(c) insofar as it requires disclosure and verification under oath before the prosecution has established its case; and that section 35(6), insofar as it is an absolute prohibition on amendment, is inconsistent with article 19(1). In the alternative, he seeks a declaration that section 35 be interpreted and applied subject to articles 19(1), 19(2)(c) and 19(10), and that section 35(1)(a) must not be applied to prejudice an accused person for exercising the right not to give evidence.

He also invites the Court to adopt a constitutionally compliant reading before striking anything down. On his proposal, section 35(2) could stand only if the accused is not required personally to swear to the facts, filing an answer is not compelled testimony, no adverse inference arises from refusing to file or from silence, the prosecution still proves every element beyond reasonable doubt, and the tribunal can permit amendments to secure a fair trial. If the provision cannot bear that reading, he asks the Court to sever just the words "verified by an affidavit" and leave the rest of section 35 in force.

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