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Opinions of Tuesday, 29 June 2021

Columnist: Lawyer Francis-Xavier Sosu

Abolition Of Death Penalty: Introduction Of PMB

Proposal For Introduction Of Private Members’ Bill To Amend Sections 46, 49, 49A, 180, 194 AND 317A OF THE CRIMINAL AND OTHER OFFENCES ACT, 1960, (ACT 29)

To Give Effect To The Recommendations Of The 2010 Constitutional Review Commission And Government White Paper On Abolition Of Death Penalty

Introduction

Right to life is a fundamental human right. Taking another person’s life because he committed any crime including murder does not restore the lost life. Besides, punishment the world over has moved from that of retribution to reformative. There are also several examples of people who were convicted and sentenced to death who later were found not to be guilty of the offences for which they were convicted. This leaves us with a very critical question of whether or not we can continue to sentence people to death. The international community has taken the lead to amending their laws to expunge the death penalty. In Ghana, we have also made several efforts.

In 2011 – delivering judgement in the supreme court case of Dexter Johnson v. the Republic [2011] 2 SCGLR 601@P702, the Court through Justice Dotse JSC said “I am however of the view … the time has possibly come for the Parliament of Ghana to seriously consider whether to have a policy shift in the mandatory death penalty regime imposed on those convicted of murder…. It is only Parliament that can consider an amendment of the Criminal and other Offences Act, 1960, Act 29”

More than 10 years down the line, Parliament which is the legislative arm of Government is yet to take any major step in this direction. This is the reason for the introduction of this bill to assist Parliament to take this concern a notch higher and begin processes to remove the death penalty from our statute books.

Brief Background

In December 2020, the plenary session of the United Nations General Assembly (UNGA) saw a record number of states (123) supporting the adoption of its biennial resolution calling for the establishment of a moratorium on executions with a view to fully abolish the death penalty – an increase of 19 votes compared to 2007, when the first UNGA resolution on this issue was adopted. According to the 2020 Amnesty International Global Report, at least 483 people were executed in 2020, the lowest figure recorded in at least a decade, representing a 26% fall as compared to 657 for 2019, and 70% fall from the peak of 1,634 executions reported in 2015.

Methods of Execution

Globally, the methods of execution of persons sentenced to death for 2020 comprised of beheading, electrocution, hanging, lethal injection, and shooting. At the end of 2020, at least 28,567 people were known to be under sentence of death. In Ghana, statistics from the Ghana Prisons Service shows that no executions were carried out in 2020, despite imposition of death sentence on three persons by the Courts. As of the close of 2020, 160 persons comprising 155 men and 5 women were under sentence of death. Nine prisoners also had their death sentences commuted to life imprisonment.

Ghana’s Position on the Abolition of Death Penalty

The Constitutional Review Commission, which was a presidential Commission of Inquiry, was set up in January 2010 to consult with the people of Ghana on the operation of the 1992 Constitution and on any changes that need to be made to the Constitution. The Commission in paragraph 75 on page 645 of its final report stated “The Commission recommends the replacement of the death penalty with imprisonment for life without parole” This recommendation was as a result of the wide range of consultation by the commission.

Government supports the abolition of death sentence

On page 44 of the Government White Paper on the Constitutional Review Commission, Government stated its position as follows “Government accepts the recommendation of the Constitutional Review Commission that the death penalty in article 3 of the Constitution be completely abolished and that the penalty be replaced with imprisonment for life. The sanctity of life is a value so much engrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties.”

Which way to go with amendments to achieve the abolition goal

There are two ways to deal with abolition of death penalty from our laws. We could do it by Constitutional amendment or with amendment of various provisions in the Criminal and Other Offences Act (Act 29) which prescribe death penalty as punishment. Article 3 of the 1992 Constitutional is an entrenched provision and any amendment would require a referendum. This might be the reason for the delay in operationalizing the government white paper on the recommendations of the Constitutional review commission.
The second approach which I believe could yield a speedy result could be amendment of Act 29 that would lead to about 95% abolition of death penalty without constitutional amendment. This argument has been forcefully argued by Amnesty International Ghana and Human Rights Lawyers like Lawyer Martin Kpebu.

Constitutional Amendment of an entrenched provision comes with cost, need for resourcing NCCE to educate citizens, funds and logistics to the Electoral Commission to conduct the said referendum among many others. This could be avoided by a simple amendment of the various provisions of Act 29.

The death penalty being part of our laws inflicts not only immerse psychological pain and torture on accused persons and assassination officers but also smacks of practices of backward societies. In view of this, it is worth pointing out that Ghana has not applied the death penalty since 1993. There is therefore the need to amend sections 46, 49, 49A, 180, 194 and 317A of the Criminal and Other Offences Act, 1960, (Act 29). We must as a country take steps to expunge the death clause from our laws.