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Death of Death Penalty in Ghana

BY: Prosper Andre Batinge
Parliament House. It is time to reconsider the death penalty
Parliament House. It is time to reconsider the death penalty

For some time now, Ghanaian penal advocates tracking liberal global criminal justice crusaders have been trying to kill the death penalty with only near successes.

The real chance at abolishing the death penalty in Ghana emerged in the case of Dexter Johnson v the Republic [2011] 1 SCGLR 601. But a majority decision of Ghana’s Supreme Court, against the spirited protestations of the minority, especially Justice Samuel Kofi Date-Bah (as he then was), declined and passed the buck to Parliament.

In throwing the ball from the Supreme Court to the chambers of Parliament, then Justice Kwasi Anin Yeboah (now the Chief Justice of Ghana) wrote: “I am aware that the death penalty has been abolished in other jurisdictions, especially in the Commonwealth countries.

“I would, like my brother Dotse JSC, advocate statutory intervention like other jurisdictions where they have degrees of murder instead of judicial intervention by way of interpretation.” [Dexter Johnson at 703.]

Bills

Parliament now has a clear chance to abolish the death penalty. The Madina Constituency lawmaker, Mr Francis-Xavier Sosu, is a front advocate of the Death Penalty Bills: The Criminal and Other Offences (Amendment) Act 1960 (Act 29) and the Armed Forces (Amendment) Act 1962 (Act 105).


These Bills seek to amend sections 46, 49, 49a, 180, 194 and 317a of Act 29 and sections 14, 15, 16, 17, 19, 20, 40, 78, and 79 of Act 105. The Bills were gazzetted on Tuesday, June 28, 2022.

These Bills seek to abolish the death penalty for ordinary offences, still leaving in the purgatory of the death penalty those convicted of serious crimes like High Treason and Treason.

Cruel

Ghana has not executed anybody convicted and sentenced to the death penalty since 1993. In strict terms and in practice thus Ghana appears not a death penalty state.

But the nation’s trial courts continue to impose the death penalty on persons upon conviction. Some 165 convicted persons were on the death row at the end of 2021; the number is now more than 170.

The death penalty offends the right to life etched in crucial human rights conventions, covenants, and declarations.

The death penalty also offends African customary law. Ubuntu was influential in abolishing the death penalty in South Africa. The South African Constitutional Court in S v Makwanyane held that the death penalty violated the right to human dignity, underscoring that the right to dignity was an integral part of ubuntu.

The death penalty is too cruel and has proven parallel to the values of evolved human sensibilities. The death penalty appears a relic of backward societies of a backward era.

The psychological torture to people on death row is immense. They wait for the never-arriving day of their execution. Some have taken their own lives during this uncertain period of waiting.

As well, the psychological effect of the death penalty on executing officers is no less tormenting. The introduction of so-called mercy killing such as injecting convicts to die peacefully and painlessly has not lessen the cruelty of the practice on both the victim and the killer.

Innocent people – not infrequently – are accused, convicted, and executed for crimes, of which they are not culpable. Fairly recently, Mr Emmanuel Tetteh was released from prison after he was wrongfully sentenced to death for murder. He did 33 years behind bars. At his release, he was 75 years.

The case against abolishing the death sentence, therefore, often makes both theoretical and common sense. But on few occasions, the argument against the death penalty is difficult to advance with clear conscience in a society of persistence instances of ritual murders.

Some of our compatriots believe that they can sacrifice their fellow human beings for money, and they, according to allegations too numerous to ignore, kill others with the hope of attaining wealth.

Some of the victims of ritual murders are young citizens in their prime with full potential of their lives in front of them, promising lives cut painfully short by evil people. It is with pain that I still believe and argue that even a ritual murderer ought not to suffer the death penalty.

Parliament

Writing for the majority in the case of Dexter Johnson supra, Justice Jones Dotse (as he then was) opined that “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.” {[2011] 1 SCGLR 601 at 702.}

More than a full decade after the Supreme Court’s indication, and after years of campaigns to end the death penalty, Parliament appears willing to kill the death penalty in the case of ordinary crimes.

As Parliament commences a new session of its lawmaking duties last Tuesday, October 25, 2022, it should ensure that the death penalty ends with the end of the Third Meeting of the Second Session of the Eighth Parliament of the Fourth Republic.

The writer is a lawyer/doctoral fellow at Fordham Law School, N.Y., USA:
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