Parliament says it has abolished the death penalty, has it?

The Parliament of Ghana made a significant decision this week, voting to abolish the death penalty. This move has been widely praised as a step forward in promoting human rights and adopting progressive correctional methods. As of 2022, Ghana reportedly had nearly 180 people on death row, but no executions had been carried out in the last three decades.

The death penalty stands as the most severe and conclusive form of punishment. Just as death marks the end of all earthly affairs, the application of the death penalty concludes all matters for the convicted. Its various torturous forms, from Roman crucifixions to American electric chairs, are irreversible and devoid of any rehabilitative value.

Like any human activity, judicial processes are prone to errors ranging from mild mistakes to outright injustice. These flaws can lead to innocent individuals being wrongfully convicted and punished for crimes they did not commit. Fortunately, in some cases where such miscarriages of justice are detected and rectified, attempts can be made to offer restitution to the wrongfully punished individuals. Numerous news stories recounting compensation-seeking efforts by wrongly jailed people can be found with a simple Google search.

While reading through these stories, I experienced a mixture of sadness and relief. The sorrow arose from the lives that were unjustly disrupted due to flaws in the judicial system, while the relief stemmed from the fact that the death penalty had not been applied in these cases, preventing the unjustified loss of innocent lives.

The death penalty is indeed a matter of life and death, leaving no room for exaggeration.

The Ghanaian Parliament should have carefully and thoughtfully examined the place and purpose of this punishment, along with the legal foundations and circumstances under which it should be abolished and replaced with a more effective alternative.

Until this week, Section 46 of the Criminal Offences Act of Ghana, 1960, Act 29, prescribed death as the punishment for murder. However, the application of the death penalty for murder is subject to rigorous requirements. Before a murder conviction can be established, the accused, even when the crime is known to have been committed by them, enters a not guilty plea.

Furthermore, various defences and mitigatory factors, such as self-defence and intoxication, provide significant leeway between imposing the death sentence and considering other lesser forms of punishment, even in cases where someone has caused another person's death. The statute books treat the death sentence with utmost seriousness, and conversations about the death penalty should not ignore the elaborate procedures involved in pronouncing this punishment on a convict.

Shortly after the amendment bill to abolish the death penalty was passed, the deputy majority leader reportedly stated to the press, "So, simply put, the death penalty is no longer a punishment in our statutes..." This triumphal declaration from the astute lawyer upon careful examination reveals a tacit acknowledgement of the continued existence of the death penalty even if same is not consciously noted.

The statement made by the MP seems to indicate that Parliament is content with abolishing the death penalty exclusively for murder, as it cannot, through a simple amendment, seek to amend an entrenched provision of the Constitution.

In Ghana, Parliament serves as the law-making arm of the government. The Criminal Offences Act, 1960, Act 29, is one of the laws made by Parliament and has undergone multiple amendments, with the recent bill to abolish the death penalty being the latest. It is worth noting that Parliament can amend provisions in the Constitution that are not entrenched, as listed in Article 290.

Certain provisions in the Constitution are considered entrenched because the framers of the Constitution deemed them fundamental and essential to the constitutional order. These provisions cannot be easily amended and require a laid down procedure including a acceptance through a referendum to amend them.
One such entrenched provision is Article 3, which includes a clause stating that anyone who attempts to suspend, overthrow, or abrogate the Constitution, in part or in whole, shall be guilty of high treason and sentenced to suffer death.
This has two implications.

Firstly, the death penalty is still applicable in Ghana since Article 3(3) of the Constitution has not been amended and still prescribes the death penalty for the crime of high treason.

Secondly, it raises concerns about the inconsistency of Parliament's stance on human rights issues. While it is willing to show a modern, human rights-oriented approach by abolishing the death penalty for murder, it seemingly neglects the issue of LGBTQ+ rights, where the state is expected to respect the privacy and sexual affairs of consenting adults. This contradiction raises questions about Parliament's commitment to human rights and its cultural and contextual considerations.

Looking at the current circumstances, Ghana's prisons are overcrowded and conditions unfit for human living, arguably violating Article 15(1) of the Constitution, which guarantees human dignity for all. The correctional system relies heavily on imprisonment, which has led to a non-reformatory approach, much like the critique levelled at the death penalty mode of punishment.

Instead of focusing solely on the type of punishment, attention should be directed towards addressing faulty judicial decision-making and ensuring justice for all. It is not acceptable to begin to abolish forms of punishment simply because there might be wrongful convictions and sentencing. The real solution would be to ensure that the criminal justice system is strictly loyal to the principle of personal liberty over a maniacal wish to punish - be it imprisonment or the death penalty.

While abolishing the death penalty is the correct thing to do in all respects, the inspiration for abolishing it must lead to a wholesome moment of objective introspection by Parliament and our criminal justice system. Life imprisonment is already being disputed as a not a suitable replacement for the death penalty.

This is a debate that can be had. However, one thing is certain- the correctional systems in Ghana need to have a real reformatory and restitution edge and achieve tangible impact through proper funding, staffing and a pivot towards other forms of punishment other than imprisonment.

In conclusion, the abolition of the death penalty by the Ghanaian Parliament is undoubtedly a significant step in advancing human rights. However, it is crucial to consider the implications of Article 3(3) of the Constitution and the consistency in upholding human rights values. Additionally, addressing the underlying issues within the justice system is imperative to ensure fair and just outcomes for all citizens.