Custodial Sentences in Ghana: A Case Study of The Republic v. Rosemond Brown aka Akuapem Poloo

In a bid to show her intense love to a son on his seventh birthday, a mother posts a nude picture taken with her son on her social media platform. The Accra Circuit Court sentences her to three months (90days) in prison after pleading guilty. This is the story of Ghanaian actress, Rosemond Brown aka (Akuapem Poloo). Her guilty plea is to the following charges:

1. Publication of obscene material, contrary to Section 280 of the Criminal Offences Act, 1960 (Act 29) which states that a person who publishes or offers for sale an obscene book, writing or representation, commits a misdemeanour.
2. Engaging in domestic violence, namely conduct that in any way undermines another person’s privacy or integrity, contrary to sections 1(d)(iii) and 3(2) of the Domestic Violence, 2007 (Act 732). This section provides the definition of domestic violence as engaging in the following within the context of a previous or existing domestic relationship: behaviour or conduct that in any way undermines another person’s privacy, integrity or security.
3. Engaging in domestic violence, namely conduct that in any way detracts or is likely to detract from another person’s dignity and worth as a human being, contrary to sections 1(d)(iv) and 3(2) of the Domestic Violence Act, 2007. This section states that a person in a domestic relationship who engages in domestic violence commits an offence and is liable on summary conviction to a fine of not more than five hundred penalty units that is about Six Thousand Ghana Cedis (GH₵ 6,000) or a term of imprisonment of not more than two years or both.

The imposition of a custodial sentences in the case under review raises the question – “must this lead to a custodial sentence?”. The general rules for punishment are provided for in Section 296 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30). Subsection 4 of this section provides that where a criminal offence is declared by an enactment to be a misdemeanour and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding three years.

According to the Black Law Dictionary 9^th edition, misdemeanour also termed a minor crime is a crime that is less serious than a felony and is usually punishable by fine, penalty, forfeiture, or confinement in a place other than prison.

Narrowing down to the sentencing of Akuapem Poloo, the Court took into consideration the following: the gravity of the offence, the prevalence of the offence within the community, the age of the victim and the likely effect of the crime he may suffer from.

The court also took into consideration mitigating factors such as the fact that the accused did not waste the Court’s time by pleading guilty to the crime, the fact that the accused is a first-time offender and the remorsefulness of the accused.

Additional factors taken into consideration by the Court in this matter with regards to imposing a sentence was whether the sentence is of a deterrent, reformative, or retributive nature. In this case, the sentence of the accused was to deter other like minds from repeating such offence.

It should be noted that the aim of reforming offenders by the justice system can also be achieved by incorporating community service into the sentencing regime.

The above-mentioned case is one of the numerous stories of the vulnerable in our society who have experienced prison life for misdemeanours.

The purpose of this article is to appreciate the Ghanaian historical background of sanctioning criminal matters and how it has metamorphosed to our current dispensation. The author will urge Ghanaian law makers to consider amending the sentencing laws to ensure that offences that are misdemeanours are not disproportionately punished- especially with the imposition of custodial sentences.

Historical Background

The Criminal Offences Act (1960) (Act 29) and the Criminal and other offences (Procedure) Act, 1960 (Act 30) which contain the laws on sentencing can be traced back to our colonial punishment regime.

A person who has done extensive research on Ghanaian culture especially that of the Ashanti’s, is the Scottish lawyer and Africanist, Robert Sunderland Rattray. In his book on Ashanti Law and Constitution, he explained that before the common law was introduced to the Gold Coast, most ethnic groups had a criminal justice system that did not include incarceration as a punishment option for minor offences. The Ashantis for instance made their Chiefs administer their criminal justice system before they were colonized by the British.

According to Rattray, punishments ranged from public ridicule, flogging, communal labour, putting one in fetters, fine, sale into slavery and beheading depending on the severity of an offence.

Rattray explains that custodial sentencing as a sanction in its literal sense was unknown in pre-colonial Ghana. He did note, however, the case of people being “put in fetters” by the paramount chief while awaiting trial or sentencing. This was very much a situation of impromptu arrest and was usually done for a very short time by tying the person to a log during the trial, so they did not escape.[1]

The Inception of British Rule for Criminal Jurisdiction

In his thesis, Nenyo Kwasitsu states that the traditional order changed with the start of British colonialism by the signing of the Bond of 1844. This led to their loss of jurisdiction over serious customary offences.[2]

Clause 3 of the Bond states “murders, robberies, and other crimes and offences would be tried and inquired of before the Queen’s judicial officers and the chiefs of the districts, shaping the customs of the country to the general principles of British law”, bringing into being a new era of the Ghanaian criminal justice system.[3]

Under the Bond, Chiefs were limited to cases concerning custom and other lesser offences, such as marriage settlements and land boundary disputes. The replacement of indigenous criminal justice systems in Ghana with the British colonial criminal justice system introduced current ideas of penology into Ghana’s criminal justice context. This continues to be codified in the substantive and procedural statutes on crime.

The Origin of Act 29 and Act 30

Ghanaian criminal law descended directly from Sir James Stephen’s Draft Code of 1878, itself a partial codification of the common law on criminal offences. Seidman and Edison observe that “where there were ambiguities in the case law, Sir James made choices which reflected his view of what the law ought to be.”  Thus, the overarching concern in drafting a criminal code was not to ensure that crime and punishment was dealt with in an equitable manner or in keeping with the understanding of the indigenes as to how crimes should be punished. Rather, it was to ensure that British rule was deeply entrenched in each colony, including the Gold Coast.[4]

Advancement of the Criminal laws

Since Sir Stephen’s Draft, not much has changed. It has been argued that an amendment of the Criminal Offences Act, 1960 (Act 29) of Ghana was long overdue. In fact, in 1960, both the Criminal Offences Act and the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) were “redrafted” and reenacted from this draft. [5]

Article 19 (11) of Ghana’s Constitution 1992 states that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. “Law” in this sense refers to the main criminal law that confines the categories of crimes to offences punishable by death or imprisonment or fine.” Thus, the nature of the offence must be defined by legislation, whether as an Act of Parliament, or subsidiary legislation such as regulations or byelaws, orders or instruments issued by public bodies or legislative instruments.

Following independence, Ghana’s codification of the British-inherited crime detection and prosecution framework remained largely unchanged. With regards to punishment, the argument is that, as in some other African countries, persons should get alternative punishments such as non-custodial penalties and probationary orders for misdemeanours as practiced in Kenya[6], Uganda, Tanzania and Burkina Faso.[7]

After a visit by the UN Human Rights Council Special Rapporteur on Torture, Juan E. Méndez, to Ghanaian prisons in 2013, he recommended that the Government should: review sentencing policies to reduce or eliminate mandatory minimum sentences for lesser, non-violent offences and provide more reasonable sentencing guidelines to reduce excessively lengthy sentences.[8]

The Ghana Prisons Service have also expressed concerns about the need for legislative change on jail sentences for minor offenses because of the current overcrowding in Ghana’s prisons, which is obstructing their ability to control and rehabilitate inmates. As of 2020, the national prison population (including pre-trial detainees/remand prisoners) was 13,355.[9] This high rate could be attributed to the disproportionate number of minor offences being incarcerated.

Unlike other colonized countries such as Kenya and Uganda that has improved their form of criminal punishment, Ghana has still held on to the then British system of custodial sentencing based on Acts 29 and 30.

The Black Law 9^th edition defines non-custodial sentence as a criminal sentence (such as probation) not requiring prison time. Therefore, we can deduce that a custodial sentence is a criminal sentence that requires prison time.

Conclusion

After 61 years in existence, and considering the background of our sentencing regime, it is my opinion that these laws should be amended to imbibe community service for misdemeanour offences. One key advantage of community service sentencing is that government will channel the taxpayers’ money in a profitable venture than catering for the welfare of these minor offenders in prison.

In Rosemond aka Akuapem’s Poloo’s case for instance, in as much as majority of us abhorred her action, her punishment could have been a lot more beneficial to society if she had been sentenced to serve the community, more so considering the fact that she is a first-time offender. This would have also afforded her the opportunity of being available to cater for her son and dependents while still serving her sentence.

It is worth considering the fact that laws that govern the people ought to be progressively restructured to suit the dynamics of society. In my opinion, a custodial sentence for minor offences is not in the long-term best interest of both the accused and society. Punishment meted out to such offenders should be largely reformative and restorative and less retributive.

[1] Rattray R.S, Ashanti Law and Constitution, 1929 pages 377-378

[2]https://dalspace.library.dal.ca/bitstream/handle/10222/75434/Kwasitsu-Nenyo-LLM-LAWS-April-2019.pdf Page 33

[3] https://www.eaumf.org/ejm-blog/2018/3/6/march-6-1844-bond-of-1844-signed-by-fanti-chiefs-and-britain

[4] Robert B Seidman & J D Abaka Edison, “Ghana: The System of Penal Legislation” in Alan Milner, ed, African Penal Systems (New York: Frederick A Praeger, Inc, 1969) page 66. [Seidman & Edison]

[5] https://dalspace.library.dal.ca/bitstream/handle/10222/75434/Kwasitsu-Nenyo-LLM-LAWS-April-2019.pdf pages 33-34

[6] http://kenyalaw.org/kl/fileadmin/pdfdownloads/SentencingGuidelines.pdf

[7]https://www.researchgate.net/publication/288824201_Ghanaians%27_Attitudes_Toward_the_Sentencing_of_Offenders_to_Community_Service

[8] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx

[9] http://www.ghanaprisons.gov.gh/statistics.html