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Opinions of Monday, 16 June 2008

Columnist: Asare, Kwaku S.

Is Abodakpi Home Free?

Last week the President pardoned Abodakpi, who was serving a 10 year sentence for defrauding the State of $400,000. That pardon raised an important issue – what is the status of Dan Abodakpi?

The issue requires understanding of the President’s forgiveness powers under the Constitution. Under article 72,

"(1) The President may, acting in consultation with the Council of State-

(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or

(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or

(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or

(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence."

What article 72 is saying is that the President may (a) pardon; (b) grant a respite; (c) commute a sentence; (d) remit the whole or part of a punishment.

(a) Pardon simply means forgiveness. But what exactly is being forgiven? The constitution does not specify, so we must turn to the common law for guidance. Under the common law, as handed over to us by the Queen, a pardon refers to a forgiveness of both the conviction and the underlying crime. So when the President grants a pardon, it is as if the crime in question was never committed. The offender is made whole again.

Of course, a pardon can be conditional or unconditional. When it is conditional, the President simply attaches a condition to the pardon. As an example, a person may be pardoned subject to paying a fine.

(b) A respite is just a temporary delay in sentence but does not affect the sentence itself. As an example, an armed robber may be sentenced to die on June 5th, 2008. The President, under article 72(1)b) may grant him a 6 months respite, which resets his execution date to December 5th 2008.

(c) Substituting a less severe form of punishment is exactly what it says. This is the power of commutation. It simply says the President may forgive all or part of the criminal sentence. As an example, this power may be used to reduce a life sentence to 10 years. Notice that the power here is one to reduce the sentence and leaves the underlying crime alone. Thus, a commutation under 72(1)c) may get a person out of jail but he remains an ex-convict under the law and is disabled to the extent that the conviction disables him (e.g., he may be disqualified from being an MP).

(d) The power to remit relates primarily to fines and forfeitures. That power is used when a criminal has been fined or asked to forfeit property to the State. The President can use that power to reduce the fine or the forfeiture in question.

It appears that the President’s pardon of Mr. Abodakpi was based on his powers under article 72(1)a). Further, as far as I know, no conditions (precedent, subsequent, or concurrent) were attached to the pardon. Thus, Mr. Abodakpi was forgiven not only of his conviction but the underlying crime itself. It also follows that Mr. Abodakpi's effort to appeal the case is moot because under the law he has not been convicted of anything!

It must be emphasized that the announcement that Abodakpi had been "pardoned" did not stipulate the constitutional provision that the President was invoking. Further, the media report was confusing. One source indicated that Abodakpi “had been pardoned via a remission,” whatever that means. That could bring this matter under article 72(1)c), leaving the conviction undisturbed. If so, Abodakpi is right in pursuing his appeal. Until we have contrary evidence, we must and I assume that this pardon fell under article 72(1)a). As an aside, Castle will do democracy a favor if it is clear in such releases, including citing the relevant constitutional or statutory provision that underlies any releases.

Why grant the President such powers in the first place? Under the common law, punishment was rather severe relative to the crime. For instance, most petty crimes were punishable by death. The Crown used its pardon prerogative to pardon such petty offenders rather than allow the imposition of the heavy sentence.

However, the pardon power was never meant as a tool for President’s to free their fellow crooked politicians, undermine the rule of law and the judiciary, or to shepherd fraudsters from prison to parliament.

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.