Saturday, 13 April

It’s time to completely abolish death penalty in 1992 constitution on treason and high treason

Feature Article
Francis-Xavier Sosu

It did not come as a shock when the court in Ghana imposed a sentence of death by hanging on six persons convicted of the offences of conspiracy to commit high treason and committing high treason on Wednesday 24th January 2024. This because treason and high treason remain capital offences in the 1992 Constitution of Ghana. This has raised concerns regarding the status of Death Penalty in Ghana in the light of gains made by Ghana to abolish death penalty for ordinary crimes. Though Ghana retained the Death Penalty in its Constitution, the said provision was otiose until 24th January, 2024 when the court convicted 6 persons for treason and high treason and sentenced them to death by hanging. This raises serious questions about Ghana’s commitment to fully abolish the Death Penalty. I BELIEVE ITS TIME FOR US TO COMPLETELY ABOLISH THE DEATH PENALTY FROM THE 1992 CONSTITUTION. 

In July, 2023, Ghana’s parliament voted to amend the country’s criminal offences act, removing the use of capital punishment for crimes including murder, genocide, piracy and smuggling. This was good news because Ghana had not executed anyone in 30 years and all 178 persons on death row at the time of abolition of death penalty were all charged under the amended provisions in the Criminal Offences Act. Today’s death sentence was for conspiracy to commit high treason and committing high treason by which the six (6) convicts must die by hanging.

Constitutional Provision for High Treason:

Article 3 of Ghana’s 1992 Constitution provides for High Treason which is deemed to be committed “when any person who, by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates the Constitution or any part of it, or attempts to do any such act; or aids and abets in any manner any person referred to in the law.” Since the 4th Republic, no person has ever been successfully charged and convicted under this law until the 24th January 2024 conviction.

Conundrum of Charges of Treason and High Treason

In our laws references are made to High Treason, Treason and Treason Felony which are supposed to be different shades of treasonable offences. While High Treason is defined with a penalty of death, Treason on the other side is not clearly defined. Section 180 of the Criminal Offences Act, 1960 (Act 29), which makes it clear that treason is punishable by death, says “for the purposes of this this section “treason” shall have the meaning assigned to it by clause 3 of the 1992 Constitution. That is rather ambiguous because clause three creates the offence of High Treason and not Treason simplicita.

Article 19 (17) of Ghana’s Constitution provides that Treason shall consist only in “levying war against Ghana or assisting any state, or person or inciting or conspiring with any person to levy war against Ghana; or in attempting by force of arms or other violent means to overthrow the organs of government established by or under this Constitution; or in taking part or being concerned in or inciting or conspiring with any person to make or take part or be concerned in, any such attempt”. This definition, notwithstanding, it would be impracticable to charge someone under this provision because the statute creating the offence of Treason which is section 180 of the Criminal Offences Act, contemplated a meaning other than what was provided by this article.

Treason Felony on the other hand, is applicable to a person who “prepares or endeavors to procure by unlawful means any alteration of the law or the policy by the Government; or prepares or endeavors to carry out by unlawful means any enterprise which usurps the executive power of the State in any matter of both a public and a general nature. This is however punishable as a first-degree felony and not necessarily by death as provided in section 182 of the Criminal Offences Act.

High Treason is the Only Clear Provision with Death Penalty

High Treason remains the only clear provision of law in our statute books that carries the death penalty. Treason simplicita is ambiguous and inconsistent with Article 19(11) of the 1992 Constitution which says that “no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”. The definition of Treson under the criminal code lends itself to ambiguity which is not sustainable in a criminal trial where the standard of proof is beyond reasonable doubt. This could be part of the reasons why there has never been a successful trial of any person under these provisions in the past.

Treason and High Treason Charges are Potential Political Tool

My deepest worry as a Human Rights activist is that provisions relating to treason and high treason are highly political and it can be used against persons who are critical of abusive and undemocratic political regimes. Without necessarily saying that is what applies in this case, all Human Rights Progressives must not rest until the 1992 Constitution is amended and the said provision in Article 3 removed to completely abolish the Death Penalty.

We must push until Ghana Completely removes Death Penalty

We must not be complacent. We must push the limits until Ghana becomes a complete abolitionist state. Sadly Article 3 (3) of the Constitution which created the offence of High Treason is an entrenched provision that would require a referendum to change. Given the fact that change is a gradual process which comes by consistent and dedicated efforts, I will with support of CSOs and Human Rights activists continue to advocate for review of that provision in our Constitution.

Mindful of the fact that it could be a laborious process, I would also urge the President of the Republic of Ghana, in the spirit of the amendments to sign the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. This protocol was adopted and proclaimed by General Assembly resolution 44/128 of 15th December 1989. The Resolution postulates that “abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights”. This would clearly settle the debate that Ghana is desirous of undertaking an international commitment to completely abolish the death penalty. This also guarantees that while we take steps to amend the Constitution, we are under International Obligation “not to execute any one”.

This is achievable because on 15th December, 2022, The President of Ghana for the first time at the United Nations General Assembly, voted in favour of the 9th Resolution for a moratorium on the use of the death penalty, alongside some 124 countries though 37 Countries were against, 22 abstained and 9 were absent.

Ghana has definitely demonstrated at the international stage that we are progressively getting to a full abolitionist stage. In all there were nine (9) provisions in the Armed Forces Act that carried the Death Penalty, five (5) provisions in the Criminal Offences Act and One (1) provision in the Constitution. I am excited that out of about fifteen death penalty provisions under our laws, 14 of them have been repealed and life sentences substituted for death penalty. This coupled with our international commitments are a tremendous achievement. We won’t relent until we attain full abolitionist state.

With the recent debacle between the Parliament of Ghana and the President with respect to the refusal of assent, let me make it clear that the Criminal Offences (Amendment) Act, 2023 (Act 1101), was duly passed and assented to by the President on 2nd August, 2023 and same was gazetted.  The subsequent letter to parliament does not have legal authority to undo the passage, assent and gazette.

Admittedly, the President is yet to assent to the Armed Forces (Amendment) Act, 2023 and the amendment related to witchcraft accusation. That is quite different from the abolition of death penalty for ordinary crimes which still remains the case.

Conclusion

Given the fact that there is clear consensus that the death Penalty has outlived its usefulness and must be scrapped as stated in the Constitutional Review Commission (CRC) Report that recommended that the death penalty in the Constitution be replaced with life imprisonment which recommendation was accepted by Governmebt on 15th June 2012, through a Government White Paper on the CRC Report, we must do the needful to completely abolish the death penalty and replace it with life imprisonment. Let us act now.

 

HON. FRANCIS-XAVIER KOJO SOSU (ESQ)

BA / LLB / BL / LLM / MA / MPhil / PhD Candidate

Member of Parliament for Madina Constituency /Human Rights & Public Interest Lawyer. Member of Appointments Committee & Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Ghana

 

Source: Classfmonline.com