Introduction

Ghana’s criminal law and its history dates back to precolonial times when Chiefs sat in judgment to adjudicate cases against offending parties. The basis of the law was primarily customary and therefore the mode and form of punishment differ from one customary jurisdiction to another.

These customary laws, like many of the traditions pertaining to those times were largely unwritten but yet feature prominently as an accepted form of law even today(Article 11(2)(3), 1992 Constitution). Ghana modern criminal law is thus a legal pluralism of Anglo Saxon law, customary law and some form of religious law evidenced in laws relating to marriage and inheritance. Together with the Acts enacted by Parliaments post-independence and the existing binding constitution is what largely represents the Ghana Legal System.

For the purposes of this paper, I shall dedicate this academic enterprise solely to a subset of the Legal system: The Criminal Justice System.

Scope and nature of The Criminal Justice System

Ghana’s criminal justice system is largely mirrored to what pertains in most commonwealth countries. Borrowing many of its definitions of crime, rule of law, rules of national justice, court system and sentencing guidelines from the common law which incidentally still plays a major function within the body of laws in Ghana (See Article 11, 1992 Constitution). The procedure of trial, unlike the inquisitorial nature as practiced by Civil law jurisdiction, is largely adversarial. Suspects are deemed to be innocent until proven guilty. Rights of accused persons are also jealously protected by the Constitution under Articles 13, 14, 15 and particularly 17(1).

Crimes in Ghana are either classified as misdemeanors or felonies with punishments ranging from a few penalty units to capital punishment as in cases relating to treasonable offenses and murder convictions.

Other notable yet important players in the justice system are the Police, the Court system and a supposedly correctional System (used advisedly), i.e. the Prison Service.

A journey towrads justice – have we arrived yet? On the website of the Judicial Service of Ghana reads in bold letters “JUSTICE WITHOUT BARRIERS”. That justice should not have barriers is without dispute. At the core of the nuance is whether indeed no such barriers, be it natural or artificial, manifest. Which goes to support the wide held legal adage that justice must not just be seen as being done, but manifestly be seen as been done.

That our justice system have made some strides towards achieving this is not in doubt. However, many infractions so much abound that one wonders whether justice, in the true sense of its meaning, exists. It would appear that rigt after independence, two streams of the justice system was formed, one for the poor and vulnerable in society and the other for the rich and powerful. Two set of rules and procedure was also put in motion crystalizing in a widely held view that justice is for sale to the highest bidder.

Unfortunately many classical examples abound to support the above notion, whether preconceived or not. Giving credence to this widely held notion is the seeming corruption that has been associated, fortunately or unfortunately, to the two principal actors within the Criminal justice system: the Police and the Judiciary. These perceived acts of corruptions relates to such like matters as extortion, bribery, intimidation, disregard human rights etcetera.

At the heart of the injustice is wrongful incarcerations. Often times, news headlines and newspapers tell the stories most. On March 14 2014, the Human Rights Division of the High Court, presided over by Mr. Justice K. Essel Mensah, ordered the State to pay GH¢200,000 as compensation to a man who the court found had been unlawfully detained at the Nsawam Medium Security Prison for 14 years.

The victim, Francis Agyare, had been released on May 29, 2008 by Judge, Mr Justice D.K. Ofosu Quartey, under the Justice for All Programme.

The case of Mr. Agyare, like many unfairly incarcerated convicts wasting off inside the four walls of the Prisons scattered around the country gives a glooming picture nothing to write home about.

The actions of the Police, mostly the first institution or point of call within the justice system, is what largely accounts for injustice we see and live with. The situation is sometimes disheartening that one wonders whether the police receive no training in criminal law at all during their training. For example, the police have turned their offices into courts and use the cells at their stations as punitive mechanisms to intimidate and dehumanize suspects, usually as a result of being given a morsel by the rich and powerful to show people “a lesson”.

Often times, all one needed was to report another and the Police, without even investigating, arrests the supposed offending party and locks him up in the cells were most often is holding hardened criminals under lawful police custody, often demanding cash before granting bail.

Such instances of false imprisonment has been with us for long. In Tandoh v Adu (1960), Apaloo, J. (as he then was), had cause to award damages for wrongful arrests and false imprisonment. Unfortunately, it was a civil matter occasioned by a lack of due diligence by Police investigations. Similarly, in Republic v Eric Asante (2005), the accused person was jailed 15 years with hard labour by the Tamale High Court for allegedly defiling and impregnating a 14-year-old girl who was his student. The student claimed that Mr Asante was her lover and had on many occasions had sexual relations with her. It later turns out at the Supreme Court, after spending some 11years in prison, that DNA samples confirm he couldn’t have committed the crime. This time again, a failure by the police investigation and failure by the trial judge to suo motu order for DNA test.

Another aspect of the justice system which makes it a mockery often times is the sentencing guidelines used by the courts which reinforces of the notion of two parallel justice system for the rich and the poor.

Headlines such as 1. http://citifmonline.com/2015/04/28/farmer-jailed-10-years-for-stealing-cassava/ 2. https://www.ghanaweb.com/GhanaHomePage/crime/Two-men-jailed-10-years-for-stealing-a-motorbike-608448?channel=D1 3. http://ghananewsagency.org/human-interest/man-jailed-18-months-for-stealing-plantain-13736 are often read shock. The shock and opprobrium that greets such stories are not because crime is being encouraged. Largely the opinion has been whether such outrageous sentences are likely to reform the convicts, many of whom are poor.

The juxtaposition is often made with the light sentences received by the powerful in society; politicians, well connected members of society who find themselves at the wrong side of the law and the inescapable conclusion is that justice is often times for sale to the highest bidder.

A case for non-custodial sentences

The Ghana Prisons Service by its mandate is supposed to contribute to the preservation of internal security by sustaining of a well-organized, civilized and safe reformatory penal system within the laws of Ghana

The total number of Prisons in Ghana is 43 with an authorized inmate capacity of 9,875. As at 2017, the total number of inmates in all the prisons in Ghana was in the region of 13,764, comprising 11,912 convicted prisoners and 1,852 non-convicted prisoners. Of the total number of convicts and non-convicted inmates, 168 are women and 202 are juveniles.

These heartbreaking statistics is at best, obscene to the democratic world and best practice within the reformatory and correctional world. It calls for a radical attempt at a solution.

A non-custodial sentence simple means criminal sentence served elsewhere than in a prison (for example, on probation). In other advanced jurisdiction, non-custodial sentences have proved to be a powerful toll in the correctional process of offenders of the law. Such non-custodial sentences ranges from Community Service Order, Good behavior Bond, driving disqualification, fines and monetary orders etcetera. There is substantial evidence that in many cases non-custodial sentences are at least as effective as custodial ones, besides having significant additional advantages.

Indeed, sociologists and criminologists have, through many years of research, proved that imprisonment does not deter recidivism nor does it often times reduce crime. In fact, imprisonment is even more likely to harden a non-serious offender.

The application of non-custodial sentences to curb harsh sentences, improve our correctional systems and reduce the pressure on the Prisons is not rocket science. If the State therefore seeks to improve the justice system, much efforts should be geared towards serious reforms in the reformatory and correctional system and this can be achieved by taking a holistic approach to our sentencing guidelines to include non-custodial sentences.

Enoch Ohene

Ohene.enoch@yahoo.com