THE MANDATORY DEATHPENALTY IN GHANA:

A COMPARATIVE CONSTITUTIONALPERSPECTIVE ON DEXTER

JOHNSON V. REPUBLIC

Andrew Novak*

I. A GLOBAL PERSPECTIVE ON THE DECLINE OF THE

MANDATORY DEATH PENALTY ........................ 67311. CRIME AND PUNISHMENT IN GHANA: A Socio-LEGAL

ANALYSIS............................................. 675III. THE STATUTORY AND CONSTITUTIONAL FRAMEWORK

OF CAPITAL PUNISHMENT IN GHANA.................. 685IV. CHALLENGING THE MANDATORY DEATH PENALTY:

DEXTER JOHNSON V. REPUBLIC ....................... 692A. The Majority Opinions ................. ....... 693B. The Dissenting Opinion ....................... 698C. Johnson's Appeal to the United Nations Human Rights

Committee.................................. 700

Although the mandatory death penalty is in rapid retreatthroughout the common law world, the Supreme Court of Ghanarejected a constitutional mandatory death penalty challenge in March2011, by a four to one majority.' In this decision, Dexter Johnson v.Republic, the Court refused to follow persuasive authority from theCommonwealth Caribbean and the African jurisdictions of Kenya,Malawi, and Uganda in holding the mandatory nature of a deathsentence to be unconstitutional in favor of discretionary capital

* Andrew Novak is Adjunct Professor of Criminology, Law, and Society at George Mason

University, where he teaches international and comparative criminal justice, and Adjunct Profes-sor of Law at American University Washington College of Law, where he teaches African law.He has a Juris Doctor from Boston University School of Law and a Master of Science in AfricanPolitics from the London School of Oriental and African Studies. He is the author of THE

GLOBAL DECLINE OF THE MANDATORY DEATH PENALTY: CONSTITUTIONAL JURISPRUDENCE

AND LEGISLATIVE REFORM IN AFRICA, ASIA, AND THE CARIBBEAN (2014), and THE DEATH

PENALTY IN AFRICA: FOUNDATIONS AND FUTURE PROSPECTS (2014).1 Dexter Johnson v. Republic, (2011) 2 S.C.G.L.R. 601.

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sentencing systems that permit consideration of mitigating factors. 2 InJohnson, the majority upheld the constitutionality of Ghana's mandatorydeath penalty based on a narrow, textual reading of the constitution,and ultimately deferred to the legislature for policy change. However,the decision had significant flaws in its reasoning and failed to present aconsistent philosophical alternative to the emerging global consensusthat not all murders are equally heinous and deserving of death; that amandatory death sentence could be too harsh for a crime, andconsequently cruel and degrading punishment.3

A dissent by the presiding judge in the case insisted that authorityfrom other Commonwealth jurisdictions on matters concerninginternational human rights was strongly persuasive in Ghana. Becauseof the "universalist dimension of human rights," the dissenting judgewrote, "this court should be very slow to reject interpretations of humanrights provisions in pari materia with provisions in our Constitution,when these interpretations have become widely-accepted orthodoxies in

jurisdictions with a similar history to ours."4 Despite this setback inGhana, the trend across the African continent, and indeed theCommonwealth, is toward abolition of the mandatory death penalty,harmonizing criminal justice regimes, bringing legal systems closer toconformity with international human rights and due process norms,and, in practice, shrinking the size of death rows. In 1976, the UnitedStates Supreme Court invalidated the mandatory death penalty inWoodson v. North Carolina, with Justice Potter Stewart memorablywriting that a mandatory sentence of death "treats all persons convictedof a designated offense not as uniquely individual human beings, but asmembers of a faceless, undifferentiated mass to be subjected to the blind

2 See e.g., Reyes v. Queen, (2002) 2 A.C. 259 (P.C.) (appeal taken from Belize); Queen v.Hughes, (2002) 2 A.C. 259 (P.C.) (appeal taken from St. Lucia); Fox v. Queen, (2002) A.C.284 (P.C.) (appeal taken from St. Kitts & Nevis); Kafantayeni v. A.G. (2007) MWHC 1(Malawi); Kigula v. A.G., (2009) 2 E.A.L.R. 1, 17 (Uganda S.C.); Mutiso v. Republic, (2011) 1E.A.L.R. 342 (Kenya C.A.).

3 Cruel, inhuman, and degrading punishment is prohibited by the International Covenanton Civil and Political Rights. International Covenant on Civil and Political Rights (ICCPR),art. 7, opened for signature December 19, 1966, 999 U.N.T.S. 85 (entered into force March 23,1976). In addition, article 6(2) of the Covenant prohibits the death penalty for crimes otherthan the "most serious crimes." Id. at art. 6(2). In 2000, the U.N. Human Rights Committeefound a mandatory death penalty to violate the Covenant because the sentence was not tailoredto the crime and therefore punished crimes other than the "most serious," violating articles 6(2)and 7 of the Covenant. Eversley Thompson v. St. Vincent and the Grenadines, Commc'n. No.806/1998, U.N. Doc. CCPR/C/70/D/806/1998 (2000), 1 8.2.

4 Johnson, (2011) 2 S.C.G.L.R. at 633.

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infliction of the penalty of death."5 Since 1976, Woodson has goneglobal, forming the basis for the invalidation of mandatory capitalpunishment in India in 1983, in Mithu v. State ofPunjab.6 In Mithu,the words of Chief Justice Yeshwant Vishnu Chandrachud echoed theelegant words of Justice Stewart:

The legislature cannot make relevant circumstances irrelevant, deprivethe courts of their legitimate jurisdiction to exercise their discretionnot to impose the death sentence in appropriate cases, compel them toshut their eyes to mitigating circumstances and inflict upon them thedubious and unconscionable duty of imposing a pre-ordained sen-tence of death.

The strategy of the more recent coordinated mandatory death pen-alty challenges was deliberate: a small network of international humanrights lawyers sought to create a body of transnational jurisprudencefrom which to draw in bringing incremental challenges in nationalcourts and to thereby restrict the scope of capital punishment." Bylaunching a multipronged assault before international tribunals, such asthe United Nations Human Rights Committee (UNHRC) and the In-ter-American Human Rights Court and Commission, these advocatesbuilt a corpus of persuasive reasoning that found the mandatory deathpenalty incompatible with human rights treaty obligations, which theyused in challenges before domestic courts in the Caribbean, and later inAfrica. In 2007, following this reasoning, the Constitutional Court ofMalawi found the mandatory death penalty unconstitutional in Ka-fantayeni v. Attorney General.9 The Supreme Court of Uganda followedsuit in 2009, in Attorney General v. Kigula, and the Kenyan Court ofAppeal in 2010, with Mutiso v. Republic.'0 The human rights lawyersinvolved in Dexter Johnson's case, including the London-based Death

5 Woodson v. North Carolina, 428 U.S. 280, 304 (1976).6 Mithu v. State of Punjab, (1983) 2 S.C.R. 690 (India).7 Id. at 692.8 This strategy is driven by the Death Penalty Project UK and its executive directors, Saul

Lehrfreund and Parvais Jabbar, as well as their partners on the ground. Litigating Against theDeath Penalty for Drug Offences: An Interview with Saul Lehrfreund and Parvais jabbar, I INT'L J.Hum. RTs. & DRUG POL'Y 53, 54-55 (2010).

9 Kafantayeni v. A.G., (2007) MWHC 1 at 6-7 (Malawi).10 Kigula v. A.G., [2009] 2 E.A.L.R. 1, 17 (Uganda S.C.); Mutiso v. Republic, (2011) 1

E.A.L.R. 342 (C.A.K) (Kenya). In October 2013, a different panel of the Kenya Court ofAppeal purported to reverse the Mutiso decision. The Supreme Court of Kenya will be the finalarbiter. Mwaura v. Republic, Crim. App. 5/2008 (Oct. 18, 2013) (C.A.K.) (Kenya).

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Penalty Project, filed a successful petition before the UNHRC that ulti-mately found that the mandatory death penalty in Ghana violated thecountry's obligations under the International Covenant on Civil andPolitical Rights (ICCPR) as an arbitrary deprivation of the right tolife."

The setback in Ghana stands in stark contrast to the erosion ofcapital punishment on the African continent, where executions havedropped to a trickle and modern sentencing reform is underway.12 Thecontinent had been the site of some of the worst abuses of the deathpenalty in modern memory, and the mandatory death sentence contrib-uted to enormous death rows even though few prisoners were ultimatelyexecuted.' 3 This article will first turn to a global comparative perspec-tive on the decline of mandatory capital punishment, followed by thesocio-historical position of capital punishment in Ghana, and then asurvey of the country's modern constitutional and statutory frameworkfor the death penalty. Finally, the article will take a critical look at theSupreme Court's decision in Dexter Johnson in relation to other Com-monwealth precedent, and consider the ultimate future of the deathpenalty in Ghana.

1' Johnson v. Ghana, Comm. No. 2177/2012, UN Doc. CCPR/C/110/D/2177/2012(2014). See also International Covenant on Civil and Political Rights (ICCPR), opened for signa-

ture December 19, 1966, 999 U.N.T.S. 85 (entered into force March 23, 1976), art. 6.12 LILLIAN MANKA CHENWI, TOWARD THE ABOLITION OF THE DEATH PENALTY IN AF-

RICA: A HUMAN RIGHTS PERSPECTIVE 56 (2007)(noting that two executions occurred in Africa

in 2005, four in 2004, nine in 2003, four in 2002, six in 2001, and two in 2000, most in Egypt,

Libya, Sudan, and Somalia); Edward Ssekika & Sulaiman Kakaire, Order, Certainty in New

Sentencing Guide, THE OBSERVER (Kampala) (June 19, 2013), http://allafrica.com/stories/

201306200343.html. (providing an example of new sentencing guidelines after the creation of a

discretionary death penalty).

13 The crisis was greatest in Kenya, which had a mandatory death sentence for aggravated

robbery and attempted robbery with violence that resulted in one of the largest death rows ever

recorded in the developing world. At the time of President Mwai Kibaki's August 2009 com-

mutation of all death sentences in Kenya - the largest commutation ever made - about 4,000

people were on death row, nearly a quarter of the world's entire death row population, in a

country that had not carried out an execution since 1987. Four Thousand Kenyans on Death Row

Get Life, AMNESTY INT'L (Aug. 5, 2009), http://www.amnesty.org/en/news-and-updates/good-

news/4000-kenyans-death-row-get-life-20090805. The death penalty was also grossly misused

in apartheid South Africa, where 2,173 condemned prisoners were hanged in Pretoria Central

Prison between 1967 and 1989. See ROBERT TURRELL, WHITE MERCY: A STUDY OF THE

DEATH PENALTY IN SOUTH AFRICA passim (2004); Andrew Novak, Guilty ofMurder with Exten-

uating Circumstances: Transparency and the Mandatory Death Penalty in Botswana, 27 B.U. INT'L

L.J. 173, 177 (2009).

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MANDA TORY DEATH PENAL TY IN GHANA

I. A GLOBAL PERSPECTIVE ON THE DECLINE OF THE MANDATORY

DEATH PENALTY

At English common law the death penalty was mandatory uponconviction, a sentence retained in many former colonies after indepen-dence.' 4 A mandatory death penalty shifted sentencing discretion froma trial judge to an executive or a mercy committee that could grantclemency or pardon in troublesome cases but failed to reduce all risk ofarbitrariness or mistake.15 Because post-colonial independence constitu-tions in the common law world nearly always contained fundamentalrights provisions, that included due process rights and a prohibition oncruel and degrading punishment, they possessed uniform constitutionalvulnerabilities that made collateral attacks on the death penalty possible,which drove up the structural costs of capital punishment and reducedthe size of death row.1 6 As a result of these similarities in post-colonialconstitutional orders, courts across the English-speaking world sharedeath penalty jurisprudence, citing, following, and distinguishing oneanother and building a corpus of comparative case law.' 7

By the time the British Empire reached its zenith, capital punish-ment was already in decline in England, peaking with the demise oftransportation to a penal colony as a criminal sanction in the eighteenthcentury and the rise of custodial imprisonment in the nineteenth cen-tury." Over time, new procedures helped curb the risk of injustice.Beginning after the English Revolution, the cabinet was required to con-firm every capital case by considering each condemned prisoner for re-prieve or pardon.' 9 After a final decision, a prisoner could make apetition to the king for mercy.2 0 By the nineteenth century more com-plex mercy procedures developed in which the Recorder of London, the

14 EVAN MANDERY, CAPITAL PUNISHMENT: A BALANCED EXAMINATION 239-40 (Jones &Bartlett 2005); Simon Coldham, CriminalJustice Policies in Commonwealth Africa: Trends and

Prospects, 44 J. AFR. L. 218, 223, 225 (2000) (noting the "remarkable continuity" of modern

African criminal justice with the colonial period).15 Rob Turrell, 'It's a Mystery': The Royal Prerogative ofMercy in England, Canada, and South

Africa, 4 CRIME, HIsT. & SOCIETIES 83, 84-88 (Northeastern Univ. Press 2000).16 WILLIAM A SCHABAS, THE DEATH PENALTY As CRUEL TREATMENT AND TORTURE:

CAPITAL PUNISHMENT CHALLENGED IN THE WORLD'S COURTS 4 (1996).17 Paolo Carozza, My Friend is a Stranger': The Death Penalty and the Global lus Commune

of Human Rights, 81 TEx. L. REV. 1031, 1036 (2003).18 J.M. BEATTIE, POLICING AND PUNISHMENT IN LONDON, 1660-1750, at 362-63 (Oxford

Univ. Press 2001).19 See id. at 448-49 for the period 1714-50.20 Id.

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head judicial administrative officer for the city, consulted with the homesecretary in every case. 2 1 This process was the precursor to the advisorycommittee on the prerogative of mercy that was installed in British colo-nies, including Ghana, where it remains enshrined in post-colonial con-stitutions as the final safeguard for condemned prisoners on deathrow.22

Falling crime rates led to a sharp curtailment in the number ofcapital offenses by the start of Queen Victoria's reign in 1837, from 220to 15, and within twenty years only 4.23 The reforms of England'sBloody Code occurred in time for India and later colonies to benefit. 2 4

Former British colonies in Africa, Southeast Asia, and the Caribbeanreceived similar penal and criminal procedure codes, based on the In-dian Penal Code or derivative ones from Australia or the Gold Coast,many of which remain in force.25 The drafting of a penal code was "animperial and international endeavor in which lawmakers in distant geo-graphical locations routinely cited each other's work," and the draftersof the Indian Penal Code were influenced by those of Louisiana andNew York before them, a sharing process that foreshadowed the modernsharing of death penalty jurisprudence.2 6 These historical similarities inconstitutional and statutory texts in many former British colonies madelitigation to abolish the mandatory death penalty in the post-colonialAnglophone world possible.

The constitutions of former British colonies in the Caribbean andAfrica were drafted from a template used by departing colonial officialsduring hurried constitutional negotiations on the eve of independence.27

21 V.A.C. GATRELL, THE HANGING TREE: EXECUTION AND THE ENGLISH PEOPLE, 1770-1868, at 544-45 (Oxford Univ. Press 2006).

22 See GHANA CONST. art. 72.23 The four crimes were murder, piracy with violence, treason, and arson in the royal dock-

yards. BARRY MITCHELL & JULIAN V. ROBERTS, EXPLORING THE MANDATORY LIFE SENTENCE

FOR MURDER 25-26 (Oregon: Hart Publishing 2012).24 David Skuy, Macaulay and the Indian Penal Code of 1862: The Myth ofthe Inherent Superi-

ority and Modernity of the English Legal System Compared to the Indian Legal System in the Nine-teenth Century, 32 MOD. ASIAN STUD. 513, 527-30 (1998).

25 James S. Read, Crime and Punishment in East Africa: The Twilight of Customary Law, 10How. L.J. 164, 165 (1964) (noting the importance of the Indian penal code for common lawAfrica); Coldham, supra note 13, at 219 (noting the importance of the 1899 Queensland PenalCode and the 1877 Gold Coast Criminal Procedure Code).

26 Elizabeth Kolsky, Codification and the Rule ofLaw Diference: Criminal Procedure in BritishIndia, 23 L. & HIST. REv. 631, 632 (2005).

27 William Dale, The Making and Remaking of Commonwealth Constitutions, 42 INT'L &

COMP. L.Q. 67 (1993).

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The fundamental rights portions of the constitutions are heavily basedon the European Convention of Human Rights, which was applied toBritain's colonies after 1953.28 Almost all of them contained a right tolife provision that is clawed back by a subclause explicitly saving thedeath penalty. Likewise, nearly every constitution contained a clauseprohibiting torture and cruel, inhuman, or degrading treatment andpunishment. In addition, because the mandatory death penalty pro-vides for an automatic sentence of death upon conviction of murder, nosentencing hearing takes place. A number of courts have interpretedthis as a violation of the right to a fair trial, another right that is univer-sal in common law constitutions. 29 This jurisprudence has two hold-outs: Malaysia and Singapore, also former British colonies, whichpossess constitutions without protections against cruel, inhuman, or de-grading punishment, or the right to a fair trial. However, even Malaysiaand Singapore are not immune from the global trends away from themandatory death penalty; in 2012, the Parliament of Singapore dramat-ically narrowed the scope of the country's mandatory death penalty, andsimilar changes are pending in Malaysia, where a recent public opinionsurvey shows soft popular support."0 In the modern world, the deathpenalty is the ultimate expression of state power and must be treatedwith great care; the harsh justice worked by a mandatory sentence ofdeath upon conviction is increasingly out of sync with political reality.

II. CRIME AND PUNISHMENT IN GHANA: A Socio-LEGAL ANALYSIS

Ghana, the former British colony of Gold Coast and previously thesite of an important slaving post, is a small country in West Africa bor-

28 JENNIFER WIDNER, BUILDING THE RULE OF LAw: FRANCIS NYAIALi AND THE ROAD TO

JUDICIAL INDEPENDENCE IN AFRICA 161 (W. W. Norton & Company 2001).29 See, e.g., Edwards v. Bahamas, Case 12.067 Inter-Am. Comm'n H.R., Report No. 48/01

(2001); Kigula v. A.G., (2009) 2 E.A.L.R. 1, 17 (Uganda S.C.). Except for Malaysia and Singa-

pore, most common law constitutions contain a right to a fair trial. See BAHAMAS CONST. art.

20; GHANA CONST. art. 19(1); JAMAICA CONST. art 20.

30 See Penal Code (Amendment) Act, 2012, No. 33 (Sing.); Criminal Procedure Code

(Amendment) Act, 2012, No. 34 (Sing.); Misuse of Drugs (Amendment) Act, 2012, No. 27(Sing.); ROGER HOOD, THE DEATH PENALTY IN MALAYSIA: PUBLIC OPINION ON THE

MANDATORY DEATH PENALTY FOR DRUG TRAFFICKING, MURDER, AND ARMS OFFENSES

(2013). Both Malaysia and Singapore had previously upheld the constitutionality of their

mandatory death penalty regimes. Nguyen Tuong Van v. Public Prosecutor, (2005) 1 S.L.R.

103 (Sing. C.A.) (upholding the mandatory death penalty for drug trafficking); Yong Vui Kong

v. Public Prosecutor, (2010) 3 S.L.R. 489 (Sing. C.A.) (same); Public Prosecutor v. Lau Kee

Hoo, (1983) 1 M.L.J. 157 (Malay. F.C.) (upholding constitutionality of the mandatory death

penalty for arms possession).

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dered by C6te d'Ivoire, Togo, and Burkina Faso with a population ofabout 25 million people.3' About half the population belong to theAkan ethnic group and most of the population speaks the Twi branch ofthe Kwa language family in addition to English. The Akan are notmonolithic and are divided into a number of smaller subgroups whoserivalries undergird Ghana's political system.32 One of these subgroups isthe Ashanti, who possessed a powerful state in the early nineteenth cen-tury that resisted British rule. In postcolonial times the Ashanti havebecome a stronghold of conservatism while other Akan groups formedalliances with the Ga, the Ewe and other minority ethnicities to balancetheir power.3 3 These alliances were on display even in the 2012 generalelection, in which the Ashanti region voted heavily for the New PatrioticParty, the party of former President John Kufour, while the northern,coastal, and eastern regions supported the ultimately victorious NationalDemocratic Congress, the party of former Presidents Jerry Rawlings,John Atta Mills, and current president John Dramani Mahama.3 4

As in every society, death, burial, and the afterlife in Ghana aredeeply culturally embedded processes, often accompanied by intricatefunerary rituals and beliefs.35 A death caused or intended by anotherperson produces significant social dislocation. For instance, among theKwahu subgroup of the Akan, suicide or accidental death is treated verydifferently from death due to natural causes or the death of a womanduring childbirth even though these traditional rituals have undergonesignificant change as a result of colonial rule and the spread of Islam andChristianity.36 Among the minority Ewe of Eastern Ghana, the deathpenalty - along with slavery or banishment - was used for homicide,assault, theft, attacks on elders, and crimes of similar gravity, as these

31 INTERNATIONAL BUSINESS PUBLICATIONS, GHANA: A COUNTRY STUDY GUIDE 9 (4thed., 2012).

32 RACHEL NAYLOR, GHANA: AN OXFAM COUNTRY PROFILE 7-8 (2000).33 JOHN E. FLINT, NIGERIA AND GHANA, 23-24 (1966).34 Martin W. Lewis, Ethnicity and Political Division in Ghana, GEOCURRENTS BLOG (Feb.

22, 2013), http://www.geocurrents.info/geopolitics/elections/ethnicity-and-political-division-in-ghana.

35 See, e.g., Clive Seale & Sjaak van der Geerst, Good and Bad Death: An Introduction, 58Soc. SCI. & MEDICINE 883, 883 (2004) ("Death, at one level, is a problem that all humansmust face, yet there is great variety across cultures (and over time) in people's explanations forwhy death must occur, in perceptions of what it is to die well or badly, and in how bereavedindividuals are expected to respond.").

36 Sjaak van der Geest, Dying Peacefully: Considering Good Death and Bad Death in Kwahu-Tafo, Ghana, 58 Soc. ScI. & MEDICINE 899, 904-05 (2004) (describing the difference between"good death" and "bad death" in Kwahu society).

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MANDA TORY DEATH PENALTY IN GHANA

were crimes in which the entire community could suffer spiritualharm.3 7 Retaliation - perhaps in the form of burning of a house or field- was permitted, and a reconciliation ritual was performed for the spiritsof the dead or the wronged.38 In colonial Ashanti, early European visi-tors commented on elaborate rituals in which a person was killed; theywrote sensationalist accounts of human sacrifice among the bloodthirstytribesmen.3 9 While some of those killed may have been members of theroyal court at the death of an Asatehene (king), more commonly theywere criminals or prisoners of war. This blurred the line between so-called "human sacrifice" and capital punishment.40

In pre-colonial Ghana, the bureaucratic and strongly centralizedAshanti Empire had a nascent equivalent of a police force, though it wasnot salaried or permanent; the maintenance of law and order fell to thecommunity at large, especially individual kinship networks.4 ' Becausepunishment was collective - an entire family, lineage, or communitycould suffer the negative consequences of a wrongdoer's actions - allpersons had a role to play in law enforcement. By contrast, the colonialstate separated police from society and created a disciplined, uniformedunit that exercised violence and social control on behalf of the state.4 2

During the colonial period, police were "an 'alien' institution, imposedon an unwilling but helpless populace," closely identified with the colo-nial state, unpopular and resented.43 After independence, this social dis-tance did not improve; policemen served to suppress civil liberties andpolitical freedoms in the era of one-party and military rule. Complaintsof misconduct and corruption persist even to the present time.

In Ghana, the indigenous legal system that existed prior to coloni-alism was based on laws and procedures handed down by oral tradition,linked to religious imperatives that required members of the community

37 Veronika Bendt, Some Aspects of Legal Minority in the Tradition of the Anfoe Ewe, Ghana,104 ZEITSCHRIFT FOR ETHNOLOGIE 155, 160 (1979).

3 8 Id39 See Clifford Williams, Asante: Human Sacrfice or Capital Punishment?An Assessment ofthe

Period 1807-1874, 21 INT'L J AFR. HIST. STUD. 433, 433 (1988).40 See Ivor Wilks, Asante: Human Sacrifice or Capital Punishment? A Reloinder, 21 INT'L J.

AFR. HIST. STUD. 443, 443 (1988).41 Justice Tankebe, Colonialism, Legitimation, and Policing in Ghana, 36 INT'L J. L., CRIME

& JUST. 67, 68 (2008).42 Id. at 69-70.43 Id. at 75.44 Id. at 76, 78-79.

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to conform to the standards of behavior of an invisible spiritual world."This allowed an atmosphere of public order and a sense of justice todevelop even without a written code of law. In this way, chiefs andelders were judicial officers as well as religious authorities. Minor caseswere handled at courts presided over by lineage heads and elders, whilemajor cases involving offenses such as murder, stealing, and adulterywere handled by the chiefs court. 6 Certain standards of due processapplied: laws were "published" orally before coming into effect; appealswere permitted to a higher-level chief; and trials were open to the pub-lic.4 7 However, certain aspects of the precolonial legal system are notconsonant with modern standards of due process. Punishments, includ-ing the death penalty, could fall on troublemakers or outcasts even whenthey were not guilty of a crime in the modern sense. 8 Methods ofpunishment were used that included trial by ordeal, banishment, andsale into slavery; the death penalty, including burial alive and decapita-tion, fell particularly harshly on spiritual crimes such as suspected witch-craft or sorcery.' 9

In the colonial period, the legal system that developed in Ghanawas characteristically English. "The substantive criminal laws remainbasically those of the common law, the assumptions of the penal systemare British, and the machinery implementing the assumptions is mod-elled on the British pattern."5 o British rule in Ghana was formally es-tablished in 1844 with the first agreement with one of the coastalkingdoms, and the defeat of the Ashanti in 1874. This opened up theinterior to colonization as the Gold Coast.51 As in other British colo-nies, the Governor-General possessed a prerogative of mercy that al-lowed him to commute a sentence or grant clemency to a condemnedprisoner. 5 2 This power derived from the sovereign's absolute pardon

45 STEPHEN ELLIS AND GERRIE TER HAAR, WORLDS OF POWER: RELIGIOUS THOUGHT AND

POLITICAL PRACTICE IN AFRICA 146 (2004).46 ABAMFO OFORI ATIEMo, RELIGION AND THE INCULTURATION OF HUMAN RIGHTS IN

GHANA 120 (2013).47 Id. at 120-21.48 Id. at 121.49 Id. at 121-22.50 Robert B. Seidman & J.D. Abaka Eyison, Ghana, in AFRICAN PENAL SYSTEMS 59, 83

(Alan Milner ed., 1969).51 MAXWELL OPOKU-AGYEMANG, CONSTITUTIONAL LAW AND HISTORY OF GHANA 65-67

(2009).52 Richard Rathbone, A Murder in the Colonial Gold Coast: Law and Politics in the 1940s, 30

J. AFR. HIST. 445, 450, 455 (1989). See also GHANA CONST. art. 72 (1992) (pardon power).

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power that existed at English common law since at least the fourteenthcentury and continues to exist in Ghana's constitution today."Ghanaian presidents have used this power extensively. In 2000, Presi-dent Jerry Rawlings granted clemency to 1,000 prisoners, including 2on death row.54

The rough edges of British colonial justice were on display in thesensational trial of the eight persons suspected in the murder of an Akanchief in southern Ghana in February 1944. The trial resulted in numer-ous appeals to the Judicial Committee of the Privy Council in London,a bitter vote in the House of Commons, the resignation of the colonialgovernor, and a political crisis in the colonial Gold Coast that contrib-uted to nationalist uprisings in the late 1940s. 5 The eight perpetratorswere tried by a jury composed of six members of one of Ghana's minor-ity ethnicities and one European bank clerk.16 The dramatic trial washampered by coached witnesses, bewildering language barriers, and alack of direct evidence as to the existence of a "joint enterprise" amongthe co-defendants. 7 The executions of some of the convicted and thereprieves of others exacerbated the bitter political divisions triggered bythe murder. British justice, though ragged, was meticulously well-docu-mented, and the contradiction between the obsessive due process rightsguaranteed to defendants and the undemocratic nature of the colonialstate was not lost upon British subjects."

Ghana was, famously, the first country in Sub-Saharan Africa toreceive independence from British rule, nine years after riots by cocoafarmers and war veterans swept the country in 1948 and first caught the

53 See Stanley Grupp, Some Historical Aspects ofthe Pardon in England, 7 Am. J. LEGAL HisT,

51 (1963); Daniel T. Kobil, The Quality ofMercy Strained: Wrestling the Pardoning Power fromthe King, 69 TEx. L. REV. 569 (1990).

54 HANS GoRAN FRANCK, THE BARBARIC PUNISHMENT: ABOLISHING THE DEATH PEN-

ALTY 98 (2003).55 Recounted in RICHARD RATHBONE, MURDER AND POLITICS IN COLONIAL GHANA pas-

sim (1988).56 Id. at 99-102.57 Id. See also, Richard Rathbone, A Murder in the Colonial Gold Coast: Law and Politics in

the 194 0s, 30 J. Afr. Hist. 445, 456-57 (1989) (noting the social and economic cleavages thatwere exacerbated by the trial, as well as the role played by the early African legal profession).

58 Writing on the Mau Mau War in late colonial Kenya, Oxford historian David Anderson

describes British justice as brutal and unsophisticated, masked by the quintessentially Britishobsession with paper and process, including volumes of transcripts, witness statements, confes-sions, and pleadings. I believe this analogy is applicable beyond Kenya, including to colonialGold Coast. See DAVID ANDERSON, HISTORIES OF THE HANGED: THE DIRTY WAR IN KENYA

AND THE END OF EMPIRE 7 (2005).

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colonial government off guard.5 9 This early unrest metastasized into anationalist movement for self-government under the Convention Peo-ple's Party and its leader, Kwame Nkrumah, who triumphed in the firstuniversal elections for the legislative assembly in 1951 and becameprime minister upon independence in 1957.60 Under Nkrumah, Ghanaexperimented with periods of both socialism and capitalism, but theinitial promise of rapid economic development faded in the early yearsof independence and Nkrumah fell to a military coup under LieutenantGeneral Joseph Ankrah in 1966.61

Even in the early years of independence, Ghana suffered fromprison overcrowding and overly harsh criminal sentences, includingmandatory life imprisonment after three convictions or for cultivationof marijuana. 62 Because Ghana's 1957 Constitution did not contain abill of rights, it established a troubling tradition of parliamentarysupremacy over human rights and due process, especially with the pas-sage of the notorious Preventive Detention Act less than a year afterindependence, which permitted indefinite detention without charge.Although Nkrumah did not generally use the death penalty against hispolitical opponents, several noted human rights activists died in deten-tion (another form of state killing) as a result of the Act.64

Unlike the Constitution of 1957, the Constitution of 1960 con-tained a bill of rights. However, this was rendered non-enforceable ornon-justiciable after the Supreme Court's decision in Re Akoto, whichheld that the provisions of Article 13 designating certain "fundamental"guarantees that the President "should" pledge to uphold were legallyinconsequential as a restraint on the President's conduct, ultimately up-holding a law permitting him to arrest and detain persons without

59 John D. Hargreaves, Toward the Transfer ofPower in British WestAfrica, in THE TRANSFER

OF POWER IN AFRICA: DECOLONIZATION, 1940-1960, at 117, 136 (Prosser et al. eds., 1982).60 Dennis Austin, The British Point ofNo Return?, in THE TRANSFER OF POWER IN AFRICA:

DECOLONIZATION, 1940-1960, supra note 51 at 225, 233.

61 RUTH FIRST, THE BARREL OF A GUN: POLITICAL POWER IN AFRICA AND THE COUPD'ETAT IN AFRICA 173-77, 366, 371 (London 1970).

62 R.E.S. Tanner, Penal Practice in Africa: Some Restrictions on the Possibility of Reform, 10 J.MOD. AFR. STUD. 447, 451, 453 (1972).

63 A. Kodzo Paaku Kludze, Constitutional Rights and Their Relation with InternationalHuman Rights in Ghana, 41 ISR. L. REv. 677, 689-90 (2008).

64 Id. at 691-92.

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trial.6' The 1960 Constitution was suspended by the National Libera-tion Council (hereinafter "NLC") after the military coup of 1966, andthe NLC military council commissioned the drafting of a new constitu-tion that decentralized political power and re-established a Westminster-style parliamentary regime.6 6 The subsequent Constitutions of 1969and 1979 provided an enforceable bill of rights, and for judicial reviewof unconstitutional laws in place of the parliamentary supremacy thatexisted under the earlier constitutions.6 7 While the 1969 Constitutionreturned Ghana to the parliamentary system of the 1957 Constitution,the subsequent 1979 Constitution re-established the executive presi-dency that was first created in the 1960 Constitution.6 " The 1992 Con-stitution, currently in force, follows the American model of threebranches of government with a strong president as both head of stateand head of government.

Decisions of customary courts and armed forces courts were notsubject to judicial review during the era of military rule and the briefcivilian interregnum of President Hilla Limann from 1979 to 1981, andcorruption and favoritism in the judicial system were rife.70 In 1982,when Flight Lieutenant Jerry Rawlings and the Provisional National De-fence Council assumed power after a coup, a new system of civilian andmilitary tribunals was created to stamp out profiteering, corruption, andother economic crimes, as well as gross military indiscipline. 1 Duringthe first two years, these public tribunals had jurisdiction to prosecutecrimes such as robbery without judicial review; in 1984, an AppealsTribunal Board was created to hear such appeals. 7 2 Although these par-allel tribunals were intended to address the abuses of the prior militaryregime by establishing judicial review of the death penalty, providinglegal aid, and opening proceedings to the public, the new tribunals fell

65 Re Akoto, (1961) G.L.R. 523. See also H. KwAsI PREMPEH, THE GHANAIAN JUDICIARY

AND THE 1992 CONSTITUTION: A PROBLEM OF ASYMMETRICAL JURISPRUDENCE 6 (1999)(Akoto is today "discredited as precedent.").

66 OPOKU-AGYEMANG, supra note 44, at 94-97.67 S.K.B. ASANTE, REFLECTIONS ON THE CONSTITUTION, LAW AND DEVELOPMENT 26-28

(2002).68 OPOKU-AGYEMANG, supra note 44, at 102.69 Id. at 103-04.70 Baffour Agyeman-Duah, Ghana, 1982-6 The Politics of the P.N.D.C., 25 J. MOD. AFR.

STUD. 613, 626 (1987).71 Id. at 625-26.72 Joseph Appiahene-Gyamfi, Violent Crime in Ghana: The Case of Robbery, 26 J. CRIM.

JUST. 409, 415 (1998).

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682 CARDOZO PUB. LAW POLICY r ETHICS J.6

victim to many of the same excesses.73 The tribunals punished business-men engaged in illicit financial dealings with sentences of imprisonmentas long as sixty years, heavy fines, and confiscation of assets, with infor-mal procedures that failed to protect due process rights in the interest ofefficiency, and fused the roles of prosecutor and judge.74 The deathpenalty was reinstated for "economic sabotage" by 1986.71 The tribu-nals never gained legitimacy as they were perceived to be political weap-ons of the ruling military council against capitalist interests. Many ofthe persons detained in this period were never charged or tried becauseof the possibility that they could be executed, and innocent personslikely were executed.7 7 Amnesty International reported that no safe-guards from torture or ill-treatment of detainees existed under the Provi-sional National Defence Council (hereinafter, PNDC), and torture,disappearances, and death in state custody were reported.

During the military rule of Jerry Rawlings from 1982 until 1993,when he was democratically elected to the first of his two civilian terms,the death penalty by firing squad in Ghana was most often used topunish political dissidents, sometimes sentenced in abstentia.7 9 The sec-ond largest category of executions was for those convicted of robbery ortheft - particularly white collar and other economic crimes.o Nearlyhalf of the 281 people sentenced to death in abstentia or executed werearmed robbers."' The period of military rule under Jerry Rawlings andthe PNDC was characterized by economic austerity under a structuraladjustment loan from the International Monetary Fund, which resultedin social dislocation caused by unemployment and shortages of food-stuffs and essentials. 8 2

73 Agyeman-Duah, supra note 62, at 627.74 Darko K. Opoku, Political Dilemmas of Indigenous Capitalist Development in Africa:

Ghana under the Provisional National Defence Council, 55 AFR. TODAY 25, 43-45 (2008).75 Agyeman-Duah, supra note 62, at 628.76 Id. at 629.77 RITA J. SIMON & DAGNY A. BLASKOVICH, A COMPARATIVE ANALYSIS OF CAPITAL PUN-

ISHMENT: STATUTES, POLICIES, FREQUENCIES, AND PUBLIC ATTITUDES THE WORLD OVER 24

(2002).78 MIE OQUAYE, POLITICS IN GHANA, 1982-1992: RAWLINGS, REVOLUTION AND POPU-

LIST DEMOCRACY 399, 407-11 (2004).79 Appiahene-Gyamfi, supra note 64, at 412.80 Id. at 415.

81 Id. at 412.82 Id. at 410.

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Ghana possesses a modern constitution, ratified in 1992 with thereturn to civilian rule, that includes elaborate human rights provisionsthat sharply contrast with the violations of human rights that took placeduring the administrations of President Kwame Nkrumah and the mili-tary rulers who succeeded him.83 These human rights provisions extendto economic, educational, and cultural rights and not solely civil and

political rights, and include protections for vulnerable groups such aswomen, children, the sick, and persons with disabilities." However,according to some critics, the Constitution may not have been a fullyrepresentative document, as public participation was only consultative,drawn heavily from the "revolutionary" ruling class." Since 1993,Ghana has not carried out any executions, though more than 400 pris-

oners remained on death row as of 2009."6 The death penalty's legacyof abuse has undoubtedly contributed to abolitionist sentiment in thecountry.

The transition to democracy led to an increase in crime rates.Murder rates rose from 275 in 1990 to 401 by 2002, numbers thatincluded a rise in domestic murders between husbands and wives.8 In

the modern era, many of these domestic homicides occur by husbandsagainst wives as a form of enforcing patriarchal gender norms in thehousehold, aggravated by the limited "exit" options available to victimsof violence or abuse.88 Men who kill their wives have a relatively highrate of suicide once the murder takes place, possibly "to escape judicial

83 Kludze, supra note 55, at 683.84 ASANTE, supra note 59, at 38.

85 Kludze, supra note 55, at 684. For a contrary perspective, see KWADO AFARI-GYAN, THE

MAKING OF THE FOURTH REPUBLICAN CONSTITUTION OF GHANA 27-28 (1995). According

to Afari-Gyan, one of the nine members of the Committee of Experts, the PNDC defended the

arrangements as fully representative. Id.

86 Joseph Appiahene-Gyamfi, Crime and Punishment in the Republic of Ghana: A CountryProfile, 33 INT'L J. COMP. & APPLIED CRIM. JUST. 309, 320 (2009) [hereinafter Appiahene-

Gyamfi, Crime and Punishment]. See also Oswald K. Seneadza, The Death Penalty in GhanaianLaw and Practice: Can Its Retention in Contemporary Time Be justified?, 37 COMMONWEALTH L.BULL. 115, 130 (2011) (also noting that mass commutations have taken place).

87 Mensah Adinkrah, Women Who Kill Their Husbands: Mariticides in Contemporary Ghana,

33 AGGREssrvE BEHAVIOR 526, 528 (2007) (notice the enormous variation in factual circum-

stances of the case studies of homicide described in the article).

88 Mensah Adinkrah, Husbands Who Kill Their Wives: An Analysis of Uxoricides in Contempo-rary Ghana, 52 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 296, 307 (2008) [here-

inafter Adkinrah, Husbands Who Kill Their Wives].

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684 CARDOZO PUB. LAW POLICY &' ETHICS J1

punishment" as the death penalty is mandatory for homicide. 9 Becausethe victim and perpetrator are known to one another, it is possible thatdomestic murders have higher conviction rates (and therefore, higherrates of death sentences) than other forms of homicide as a result offorensic and investigatory limitations in criminal cases, and yet theyoften possess mitigation factors that distinguish them from, for instance,cold-blooded murder or murder for hire.9o The increase in capital pun-ishment for domestic murder contributes to the ultimate flaw of amandatory death regime: it over-punishes.

As Ghana's position in the global drug trade increases in promi-nence, a product of increasing wealth and economic development, thecountry has stiffened sentences significantly, though unlike Nigeria ithas never experimented with a death sentence for large-scale drug traf-fickers.91 By 2006, rates of drug offenses and murder were in markeddecline: only 87 murders and 98 drug offenses were reported in the firstquarter that year. 9 2 As elsewhere, crime in Ghana correlates with chang-ing demographics, patterns of urbanization, inequalities of wealth, andneighborhoods: northern Ghana has a lower crime rate than the south,with Ashanti and Greater Accra reporting the highest rates. Accra, themost populous, modern, and heterogeneous city in Ghana, has under-gone extremely rapid growth, removing many people from traditionalkinship, lineage, and community networks that served as tools of socialcontrol.9' An analysis of the city's murder rate shows that it remainedrelatively consistent between 1980 and 1996 even as petty crime in-

89 Id at 305 (noting that nearly 22% of men who murdered their wives committed suicideafterwards, and another 3% attempted suicide).

90 In Trinidad and Tobago, which has a mandatory death penalty, domestic murders (inwhich the perpetrator and victim were known to one another) accounted for 17% of recordedmurders and 52% of capital convictions. See ROGER HOOD & FLORENCE SEEMUNGAL, PUBLIC

OPINION ON THE MANDATORY DEATH PENALTY IN TRINIDAD 2 (2011). Quite simply, domes-tic murders are easier to investigate and prosecute than random murders. As Adkinrah writeswith respect to Ghana, all five cases of domestic murder reported in the newspaper resulted in aconviction for homicide and sentence of death. Adkinrah, Husbands Who Kill Their Wives,supra note 80, at 306.

91 Emmanuel Akyeampong, Diaspora and Drug Trafficking in West Africa: A Case Study ofGhana, 104 AFR. AFF. 429, 437-38 (2005).

92 Appiahene-Gyamfi, Crime and Punishment, supra note 78, at 312.9 3 Id.

94 Joseph Appiahene-Gyamfi, Urban Crime Trends and Patterns in Ghana: The Case ofAccra,

31 J. CRIM. JUST. 13, 15-16, 21 (2003).

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creased.9 5 In the Nima Police Division of Greater Accra, firearms wereused in only 3% of homicides; by contrast, cutlasses, knives, hammers,and blunt cutting objects were used in 60% of homicides. 6

Ghana's modern court system was first installed by the British in1844, and it remained supreme except during the period of PNDC rulebetween 1982 and 1993 when Public Tribunals ran parallel to it.9 7 In1993, the Public Courts Act reorganized the judiciary, creating regional,circuit, and community courts, which appeal successively to the HighCourt of Justice, the Court of Appeal, and the Supreme Court ofGhana.98 Reports of judicial corruption, including bribery, plague thejustice system and contribute to inconsistencies in discretionary sentenc-ing.99 Ghana has a Commission on Human Rights and AdministrativeJustice that hears human rights complaints from private citizens andpossesses ombudsman functions for investigating official corruption.ooHowever, the Commission lacks the power to prosecute; it can onlymake recommendations to the government.' 0 '

III. THE STATUTORY AND CONSTITUTIONAL FRAMEWORK OF

CAPITAL PUNISHMENT IN GHANA

The sources of Ghanaian law are, in order of preference: the Con-stitution of the Fourth Republic; legislation; any orders, rules, and regu-lations made in conformity with the Constitution; existing law; andcommon law, including English common law and equity and Ghanaiancustomary law. 10 2 "Existing law" is defined as those laws predating andin conformity with the 1992 Constitution and includes the penal code

95 Id. at 17 (table 2). In 198043 murders took place in Accra; in 1996, 51 murders werereported. This is in contrast to the much larger increases in theft, assault, and breaking andentering in this period. For instance, 8,314 assaults were reported in Accra in 1980; that figurerose to 17,905 in 1996. Id

96 Id. at 18.

97 Appiahene-Gyamfi, Crime and Punishment, supra note78, at 313.98 Id. See also THE REPUBLIC OF GHANA JUDICIARY, available at http://

www.judicial.gov.gh/ (last visited Nov. 29, 2013).99 Wisdom Akpalu & Anatu Mohammed, Socioeconomics of Crime and Discretionary Punish-

ment: The Case of Ghana, 40 INT'L J. Soc. ECON. 116, 117-18 (2013).

100 Tankebe, supra note 39, at 81. See generally JOHN HATCHARD, MUNA NDULO & PETER

SLINN, COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMON-WEALTH: AN EASTERN AND SOUTHERN AFRICAN PERSPECTIVE 208 et seq. (2004) (providing a

comparative analysis of Africa's autochthonous oversight bodies).10 Tankebe, supra note 39, at 81.102 Appiahene-Gyamfi, Crime and Punishment, supra note 78, at 309 (citing GHANA CONST.

art. 11).

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686 CARDOZO PUB. LAW POLICY & ETHICSJ. [

and criminal procedure code. 1o3 As with most recent constitutions, theConstitution of the Fourth Republic protects a range of modern dueprocess rights, among them requiring a warrant before a search or anarrest; notifying detained persons of charges against them; prohibitingdetention without trial; and provisioning counsel for indigent defend-ants.' 0 4 The Constitution also provides for legal equality and non-discrimination. 0 5

Ghana's criminal justice system provides for the sentences of death,imprisonment, fines, compensation, and probation, and distinguishesbetween juvenile and adult offenders.' 0 6 After arrest and interrogation,the Attorney-General's office presses criminal charges and prosecutessuspects in a court of law; however, due to understaffing, the over-whelming majority of minor criminal cases are tried by police prosecu-tors.10 7 In this way, Ghana lacks the strict separation of police andprosecutorial functions that is traditionally a hallmark of more devel-oped common law countries.

That the right to life under Ghana's 1992 Constitution is listed asthe first fundamental right underscores the importance of the dignityand worth of an individual human being.10 The right to life contains adeath penalty savings clause at Article 13(1) on the model of the Euro-pean Convention on Human Rights, which applied briefly to Ghanaduring the colonial period: "No person shall be deprived of his life in-tentionally except in the exercise of the execution of a sentence of acourt in respect of a criminal offence under the laws of Ghana of whichhe has been convicted."' 09 In addition, the Constitution includes ahuman dignity provision, which states in relevant part, "[n]o personshall, whether or not he is arrested, restricted or retained, be subjected totorture or other cruel, inhuman or degrading treatment or punish-

103 GHANA CONST. art. 11(4)-(6).

104 See GHANA CONST. art. 14.

105 GHANA CONST. art. 17.106 Appiahene-Gyamfi, Crime and Punishment, supra note 94, at 310.107 Id. at 310.

108 ASANTE, supra note 59, at 38.

109 GHANA CONST. art. 13(1). The Convention applied to European colonies upon its entry

into force on September 3, 1953 on the understanding that it would lapse at independence.

Ghana received independence in 1957. See European Convention for the Protection of Human

Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force Sept. 3, 1953; JEN-

NIFER A. WIDNER, BUILDING THE RULE OF LAW: FRANcis NYAIALI AND THE ROAD TO JUDI-

CIAL INDEPENDENCE IN AFRICA 161 (2001).

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MANDA TORY DEATH PENAL TY IN GHANA

ment."110 The Constitution also requires a jury trial in capital casesother than treason, and requires that the jury's decision be unanimousin order to pass a sentence of death.' The President of Ghana, actingin consultation with the Council of State, has the ability to pardon orreprieve a prisoner or reduce or substitute a sentence.1 12 The provisionalso provides that in death penalty cases, a written report produced bythe trial judge and a record of the proceedings shall be submitted to thePresident for mercy consideration. 1

13 In addition, the Constitution pro-

vides a mandatory death penalty for treason, stating that any personwho "commits the offence of high treason .. . shall, upon conviction, besentenced to suffer death."" 4 This is the only example of a constitu-tionally authorized mandatory death penalty in the Commonwealthfound by the present author.

Ghana is a signatory to a number of international treaties that im-pact the application of the death penalty, including the InternationalCovenant on Civil and Political Rights, the Convention Against Tor-ture, and the African Charter on Human and Peoples' Rights."' Whileunder Ghana's constitution these treaties are not self-executing and re-quire implementing legislation for them to be incorporated into domes-tic law, the Constitution also states that courts and other officials shouldbe guided by international human rights obligations."' 6 Ghana's consti-tution also provides for the provision of legal aid to indigent defend-ants.11 7 The Legal Aid Scheme Act of 1997 created a Legal Aid Boardto determine the qualifications of applicants for legal aid and connectthem with a practitioner, especially for serious felonies such as murder

110 GHANA CONST. art. 15(2).

111 GHANA CONST. art. 19(2).112 GHANA CONST. art. 72(1).113 GHANA CONST. art. 72(2).114 GHANA CONST. art. 3(3).115 International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999

U.N.T.S. 171, entered into force Mar. 23, 1976 (Ghana signatory); Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/39/51(1984), entered into force June 26, 1987 (Ghana signatory); African Charter on Human andPeoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58(1982), entered into force Oct. 21, 1986 (Ghana signatory).

116 Kludze, supra note 55 at 682, citing GHANA CONST. art. 37.117 GHANA CONST. art. 294(2)-(3).

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688 CARDOZO PUB. LAW POLICY &' ETHICS J

or armed robbery."' Nonetheless, serious shortages in legal aidremain." 9

The Criminal Code was originally adopted in 1892 in similar formas other British colonies, codifying the theory of criminal guilt in En-glish common law, including the mens rea doctrine of responsibility.12 0

The Criminal Offences Act of 1960 is substantively the same, though itdoes not authorize corporal punishment, which was rarely used in colo-nial Gold Coast except for juveniles. 12 ' However, subsequentNkrumah-era legislation greatly stiffened criminal penalties and pro-vided minimum sentences for an array of crimes, particularly those in-volving economic crimes and habitual or repeat offenses.12 2 Even in theearly years of independent Ghana, the death penalty was used relativelyinfrequently, with 30 death sentences and 13 executions between 1950and 1951, 31 death sentences and 9 executions in 1953 and 1954, 9death sentences and zero executions in 1959, and 15 death sentencesand 16 executions in 1962.123 During the colonial and independenceperiods, prison has been the principal form of punishment, with wildfluctuations in sentencing policy and a trend in the early years of inde-pendence toward sharp lengthening of sentences. 12 4

Under the Criminal Offences Act of 1960, the death penalty ismandatory for the crime of murder, stating that "[a] person who com-mits murder is liable to suffer death."12 5 Murder is defined as intention-ally causing "the death of another person by an unlawful harm," unlessthe murder is reduced to manslaughter by reason of provocation or par-tial excuse.126 Infanticide by a new mother also reduces a sentence tomanslaughter on the theory that she was presumed to suffer from post-

118 See Legal Aid Scheme Act, No. 542 (1997); Renee Aku Sitsofe Morhe, An Overview ofLegal Aid for Criminal Cases in Ghana: The History and Challenge of Providing Legal Aid, 38COMMONWEALTH L. BULL. 105, 106 (2012).

119 Morhe, supra note 110, at 106-07.120 Robert B. Seidman & J.D. Abaka Eyison, Ghana, in AFmcAN rPENAL SYSTEMS 59, 68-69

(Alan Milner ed., 1969).121 Id at 68.122 Id at 70.123 Id. at 75.124 Id. at 76-78.125 Criminal Offences Act, 1960, No. 29, § 46.126 Id. at § 47. Provocation is defined at § 53. Insults alone are not enough. Oduro v. State,

(1967) G.L.R. 36 (C.A.). Provocation ordinarily requires that one acted from terror of immedi-

ate death or grievous bodily harm. Criminal Offences Act, 1960, No. 29, § 52(b). However,

where a person is physically assaulted, provocation may be found even without fear of immediate

death or grievous harm. State v. Ayi Grunshie, (1961) G.L.R. (II) 633 (S.C.). Adultery may

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partum depression.127 In addition, the death penalty is also mandatoryfor genocide and attempted murder by a person under sentence of im-prisonment for three years or more.128 Besides murder, genocide, andattempted murder by an incarcerated prisoner, the Criminal OffencesAct makes treason a capital crime, giving effect to Article 3(3) of theConstitution. According to Section 180 of the Criminal Offences Act,"[a] person who commits high treason is liable to suffer death," andhigh treason is defined synonymously with the meaning assigned to it byArticle 3(3) of the Constitution.12 9

The Criminal and Other Offences (Procedure) Act of 1960, thecountry's criminal procedure code, provides the procedure for deathsentences.13 0 The Act forbids the death penalty for juveniles under age17.131 A death sentence may be carried out by hanging, lethal injection,electrocution, gas chamber, or "any other method determined by theCourt," and upon sentencing, the accused must be informed of his orher right to appeal.13 2 The presiding judge must forward to the Minis-ter of Justice a copy of the minutes, the notes of evidence taken, and thefull record of trial, with a report signed by the presiding judge contain-ing his or her recommendations or observations.13 3 The Minister ofJustice determines whether the sentence is to be carried out, and thetime, place, and manner of the execution, and issues a death warrant

(including instructions for burial) or an order of commutation or par-don.'3 1 Where a woman is sentenced to death, the Court must orderher to be tested for pregnancy unless she is post-menopausal; the deathpenalty may not be carried out on a pregnant woman, and her sentencewill be commuted to a period of imprisonment.135

also be grounds of provocation if committed in view of the defendant. Criminal Offences Act,1960, No. 29, § 53(c).

127 Criminal Offences Act, 1960, No. 29, § 52(d).128 Id. at § 49, 49A.129 Criminal Offences Act, 1960, No. 29, § 180(1)-(2). Treason is also defined extraterritori-

ally and is applicable to Ghanaians living abroad. Id. § 180(3).130 Criminal and Other Offences (Procedure) Act, Act 30 of 1960 (Ghana). See also

HENRIETTA J.A.N. MENSA-BONSU, THE ANNOTATED CRIMINAL PROCEDURE AND JUVENILE

JUSTICE Acr OF GHANA (2009).131 Criminal and Other Offences (Procedure) Act, 1960, No. 30, §295 (Ghana).132 Id. §§ 304-05.133 Id. § 307.134 Id. %§ 308-09.135 Id. § 312 (also providing that arrangements for her health needs and the raising of the

child will be made by the Prison Service and the social welfare department of the district).

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690 CARDOZO PUB. LAW POLICY & ETHICSJ. [

In general, Ghanaian courts have followed English precedent onthe definition of murder and manslaughter. A murder conviction wasdetermined to be inappropriate where the accused did not intend tokill. 13 6 Similarly, where a defendant had only intention to commit bod-ily injury, a manslaughter conviction was found appropriate.13 7 Englishcommon law is also the foundation for defenses such as provocation,self-defense, and insanity. A divided Supreme Court upheld a convic-tion for murder, and death sentence by firing squad, where the defen-dant was the aggressor in a fight, and was the first to resort to deadlyforce, making him unable to raise defenses of self-defense or provoca-tion.138 However, the Court of Appeal reversed a murder conviction infavor of manslaughter where the defendant was provoked to the pointwhere he lost self-control. 39 In a subsequent case, the Court of Appealruled that the prosecution did not have to prove the absence of provoca-tion; the burden was on the accused to prove the defense. 140 The Su-preme Court upheld a murder conviction where the defendant's use offorce was grossly disproportionate to any possible provocation. 14

1 Prov-ocation had to be extreme enough "to be likely to deprive a person ofordinary character of the power of self-control" and not based on "anypeculiar temperament or excitability of a person."14 2 A confession ofadultery was not sufficient to amount to extreme provocation. 143 TheCourt of Appeal reduced a murder conviction to "guilty but insane"where a trial judge rejected an insanity defense in his jury instructions,rather than allowing the jury to make a finding of fact on the questionof insanity.1 4 Like provocation, the defendant had the burden of prov-ing beyond a preponderance of the evidence that he or she did not knowthe nature of the criminal act, or was mentally ill at the time of the

136 Quartey v. Republic, (1999-2000) 2 G.L.R. 201, 218 (Ghana C.A. 2000).137 Idrisu Gonja v. State, (1964) G.L.R. 573, 579 (S.C.). This case is also mentioned in

HENRIETrA J.A.N. MENSA-BONSU, THE ANNOTATED CRIMINAL OFFENCES Acr OF GHANA 70(5th ed. 2008) [hereinafter MENSA-BONSU, CRIMINAL OFFENCES ACT].

138 Boakye v. Republic, (1999-2000) 1 G.L.R. 740, 747-48 (Ghana S.C. 1999).139 Republic v. Zinitege, (1993-94) 1 G.L.R. 1, 5-6 (Ghana C.A. 1993).140 Agyemang v. Republic, (1995-96) 1 G.L.R. 118, 121 (Ghana C.A. 1993). Also men-

tioned in MENSA-BONSU, CRIMINAL OFFENCES AcT, supra note 129, at 78.141 Aidoo v. State, (1963) 2 G.L.R. 84, 90-91 (S.C.).142 State v. Nimoh, (1960) G.L.R. 203, 204 (S.C.).143 Gyeke v. State, (1964) G.L.R. 656, 660 (S.C.).144 Collins v. Republic, (1987-88) 2 G.L.R. 521, 530-32 (Ghana C.A. 1988).

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AMNDA TORY DEATH PENAL TY IN GHANA

offense.' Intoxication to the degree of insanity also reduced a murderconviction to manslaughter. 14 6

Ghana's modern courts have harshly scrutinized sentences passedby the Public Tribunals under the military rule of the PNDC. In 2001,the Court of Appeal invalidated a death sentence by firing squad for anappellant convicted of robbery and conspiracy to commit robbery. 14 7

The appellant argued that the sentence was too harsh and excessive, asnobody was killed or hurt in the course of the armed robbery; as aconsequence, death was a disproportionate punishment as a matter oflaw. The Court invalidated the death sentence without pronouncing onthe appellant's argument that the death penalty was unconstitutional forarmed robbery. According to the Court, the sentence was passed in1988 by the National Public Tribunal while Ghana was still under mili-tary rule, and therefore predated the 1992 Constitution.1 4 8 As cited bythe Court, the law in place as of 1988 permitted the Public Tribunal toissue a death sentence only if the sentence was provided for in writing bythe PNDC military council and where the Tribunal was satisfied thatthe very grave circumstances of a crime merited such a penalty.' 4 9 Be-cause the earlier Public Tribunal's decision did not specifically indicatethat the offense was provided for in law and that the circumstances ofthe crime merited the special punishment of death, the Court of Appealfound the death sentence to be unlawful as passed in 1988 and substi-tuted a sentence of 22 years with hard labor.5 o The Court's reluctanceto pronounce on the harshness of a death sentence foreshadowed theSupreme Court's deferral of a similar question in Dexter Johnson.

The challenges of Ghana's legal system were underscored in a morerecent case from 2010 in which a defendant filed an appeal against sen-tence in February 1990, eleven days after a jury verdict convicting himof murder.'5 1 According to the Court of Appeal, the defendant lan-guished on death row for twenty years as his appeal remained pend-ing.152 Finding that the judge's jury instructions were inadequate, the

145 Dabla v. State, (1963) 2 G.L.R. 14, 18-19 (Ghana S.C.).146 Ketsiawah v. State, (1965) G.L.R. 483, 489 (S.C.).147 Sulemana v. Republic, (2001-02) 2 G.L.R. 243 (Ghana C.A. 2001).148 Id. at 246-47.149 Id. at 246, citing Public Tribunals Law of 1984, PNDCL 78, sec. 16(1).150 Id151 Tagoe v. Republic, Crim. App. No. 1/2010 (Ghana Ct. App., June 3, 2010), available at:

http://jtighana.org/new/links/cases/okaiTagoe-vrs -republic.pdf.152 Id. at 12.

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692 CARDOZO PUB. LAW POLICY & ETHICS. V

medical evidence raised in the case was inconclusive, and eyewitness tes-timony was unreliable, the Court of Appeal ruled that the defendantshould have been convicted of manslaughter and immediately releasedthe defendant from prison.1 1

3 The case led to a round of calls to abolishthe death penalty in the country's newspapers.15 4

IV. CHALLENGING THE MANDATORY DEATH PENALTY: DEXTER

JoHNsoN v. REPUBLIC

In March 2011, the Supreme Court of Ghana defied the Com-monwealth trend toward abolition of the mandatory death penalty, up-holding the sentence in a four-to-one decision that carefully consideredand rejected the emerging global consensus that a discretionary deathpenalty regime more closely aligned with existing human rightsnorms. '5 The lengthy opinions by Justices Rose Constance Owusu andJones Dotse held that the mandatory death penalty was consistent withthe Constitution of Ghana, and the establishment of a discretionarydeath penalty regime was a policy decision that must be made by thelegislature rather than the Court, a holding with which the other twomembers of the majority concurred. By contrast, a strong dissentingopinion by Justice Samuel Date-Bah intensively analyzed the jurispru-dence of other Commonwealth jurisdictions, especially Kenya andUganda, which are based on constitutional frameworks similar toGhana's. Although the decision in Dexter Johnson v. Republic was amissed opportunity, it failed to provide a comprehensive philosophicalalternative to the trend in the common law world that the mandatorynature of the death penalty violates fundamental rights and did not un-dermine the emerging global consensus that the death penalty should berestricted to the "rarest of the rare."1 56

153 Id. at 11-12.

154 Editorial: Abolish Death Penalty, PUBLIC AGENDA, Aug. 1, 2010, http://allafrica.com/sto-

ries/201007300842.html.

155 Dexter Johnson v. Republic, (2011) 2 S.C.G.L.R. 601.

156 The phrase "rarest of the rare" as applied to the death penalty originated with the Su-

preme Court of India in Bachan Singh v. State of Punjab, in which the Court dramatically

narrowed the scope of capital punishment in India. Bachan Singh v. State of Punjab, A.I.R.

1980 S.C. 898, 929 (India). As noted above, the International Covenant on Civil and Political

Rights restricts application of the death penalty to only "the most serious" crimes. ICCPR,

supra note 3. Both reflect the death penalty's status quo in international law: legal, but

disfavored.

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A. The Majority Opinions

The opinions by Justices Owusu and Dotse engaged in a purelytextual analysis of the disputed provisions of the constitution and thepenal code and used the cloak of judicial restraint to avoid reconcilingthis analysis with contrary persuasive authority from other common law

jurisdictions. Two other justices also wrote very brief opinions in sup-port of the majority position, both adopting the holding of JusticeDotse.157

Justice Owusu, known to be a proponent of capital punishment,noted the similarities between the constitutions of Ghana and Kenya,but determined that the Ghanaian provisions were clear and unambigu-ous and therefore did not require reference to authority from other juris-dictions."' She also found that the mandatory death sentence was notoverly rigid, as juveniles, pregnant women, and persons found to beinsane are exempted, though these cases do not greatly narrow the fullspectrum of moral culpability swept into the definition of homicide.Justice Owusu also raised an argument rejected by the Privy Council inthe Caribbean line of cases, that the ability of the defendant to seekclemency following his conviction satisfies his or her right to a fair trialbecause it allows a defendant an opportunity to present mitigating evi-dence.'1 ' The shadowy and quasi-political proceedings of a clemencycommittee, however, are very different from courtroom criminal proce-dure and remove from the decision-making process the single personmost familiar with the case, the trial judge.' 6 0

In Reyes v. Queen, the Judicial Committee of the Privy Council inLondon invalidated the mandatory death sentence in Belize, ruling thatexecutive clemency proceedings could not save a mandatory death sen-tence as the secretive and non-participatory proceedings did not impartthe requisite due process standard required of capital sentencing.1 6' In

157 See Johnson, (2011) 2 S.C.G.L.R. at 703 (Anin Yeboah, J. & Aryeetey, J., concurring).158 See Sylvanus Nana Kumi, Do We Reform or Abolish This Law?, BUSINEss GUIDE (Ghana)

(Aug.30, 2010), http://www.businessguideghana.com/?p=3066. See also Seneadza, supra note78, at 126.

159 Johnson, (2011) 2 S.C.G.L.R. at 655, 658 (Owusu, J.S.C., concurring).160 As Chenwi writes, "in practice, there is very little information as to the extent to which

the prerogative [of mercy] is exercised, since the process is shrouded in secrecy." The mercy

reports prepared by the trial judge are confidential in some countries. Lilian Chenwi, Fair TrialRights and Their Relation to the Death Penalty in Africa, 55 Ir'L & COMP. L.Q. 609, 632(2006).

161 Reyes v. Queen, (2002) 60 W.I.R. 42 (P.C.) (appeal taken from Belize).

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694 CARDOZO PUB. LAW POLICY 6- ETHICSJ. [

this, the Court reversed Lauriano v. Belize, a decision of the BelizeCourt of Appeal holding that the ability to seek commutation or pardonprovided the necessary flexibility for a mandatory capital punishmentregime. 16 2 In Mutiso, the Kenyan Court of Appeal likewise rejected theargument that the clemency or pardon power imparted the differentia-tion required of mandatory capital sentencing regimes. 16 On thispoint, Justice Owusu's decision is at odds with Commonwealth-wideauthority.

Her decision also brushed off a significant obstacle in statutoryinterpretation in Ghana's penal code: the difference between "shall suf-fer death" and "shall be liable to suffer death." Courts elsewhere in theEnglish-speaking world have found this distinction to have constitu-tional significance, reading mandatory death sentences as discretionarybecause of the word "liable." In Van Der]hultes v. Attorney General in1988, the Sri Lanka Court of Appeal ruled that the death penalty fordrug trafficking under the Poisons, Opium, and Dangerous Drugs Ordi-nance was not mandatory, since the statute stated that a convicted of-fender "shall be liable" to suffer death instead of "shall" suffer death.' 64

Similarly, in Ume v. State in 2006, the Supreme Court of Papua NewGuinea interpreted a criminal code provision as permitting a discretion-ary death penalty where it stated that a person convicted of homicide"shall be liable to be sentenced to death."165 By refusing to follow theKenyan Court of Appeal in Mutiso - in confirming the death sentenceas discretionary even where the statute read "is liable to suffer death,"instead of "shall suffer death," - Justice Owusu explained that "nothingshort of death shall be the appropriate sentence" in light of the appel-lant's gruesome murder.' 6 6 This is a judicially activist holding disguisedas judicial restraint and does not align with the stated legislative intent

162 Lauriano v. Attorney General of Belize, (1995) 3 Bz.L.R. 77.163 Mutiso v. Republic, (2011) 1 E.A.L.R. 342, 350 (C.A.K.) (Kenya). See also Edwards v.

Bahamas, Case 12.067, Inter-Am. Comm'n H.R., Report No. 48/01, OEA/Ser.L/V/II.111, doc.20 (2000), 149, at 165-66 (likewise holding that clemency proceedings in the Bahamas couldnot save a mandatory death sentence).

164 Van Der Jhultes v. Attorney General, (1989) 1 Sri L.R. 204 (28 June 1988).165 In the Papuan case, an interpretive provision of the criminal code stated that "liable to be

sentenced to death" permitted judicial sentencing discretion to substitute a lesser sentence. Eventhough the mandatory death penalty subsequently was enacted into law, the interpretive provi-sion was never amended. Ume v. State, (2006) PGSC 9, S.C. 836 (May 19, 2006). See alsoCriminal Code Act of 1994, Cap. 262, § 19(l)(aa), § 299(2), LAWS OF PAPUA N.G.

166 Dexter Johnson v. Republic, (2011) 2 S.C.G.L.R. 601, 658.

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to restrict application of the death penalty in Ghana.""7 Despite pur-porting to leave policy decisions to the legislature, including the estab-lishment of a discretionary death sentence, the Justice's reasoning is notimmune from making its own policy determinations.

In his opinion upholding the mandatory death penalty, JusticeJones Dotse likewise acknowledged the comparative precedent fromother jurisdictions but ultimately determined that the Constitution ofGhana was clear and unambiguous. His opinion, however, miscon-strued the nature of a discretionary death penalty regime and conflatedthe division of murder into degrees with judicial sentencing guidelines.If the mandatory death penalty were found unconstitutional, JusticeDotse wrote, Ghana would have to divide murder into degrees and de-velop sentencing guidelines for each degree; he distinguished the UnitedStates in this regard, where murder was already divided into degreesbefore the development of sentencing guidelines.' 8 This is an illogicalargument because it merges the guilt and sentencing inquiries; thus, di-viding murder into degrees is a separate policy determination from thedevelopment of capital sentencing guidelines that require aggravatingfactors to trigger a death sentence. Justice Dotse's opinion was heavilyconcerned with the principle of certainty, and he argued that leavingcriminal sentencing to the determination of the trial judge would lead toarbitrary results. 6 9 As a consequence, his argument created a strawman, predicting the chaos that would result if judges had to determineboth guilt and degree of murder, weighing the gruesomeness of thecrime, the number of victims, the premeditation of a crime, and otherfactors in the absence of sentencing guidelines.

Judge Dotse's decision is unpersuasive because he mischaracterizesthe nature of a discretionary death penalty regime; his analysis simplydoes not comport with the real experiences of Kenya, Malawi, Uganda,and other developing countries that have begun permitting discretion in

167 In August 2012, the Government of Ghana accepted the recommendations of a White

Paper produced by the Constitutional Review Commission, among which were calls for aboli-tion of the death penalty. Republic of Ghana, White Paper on the Report of the ConstitutionReview Commission ofInquiry, W.P. No. 1/2012, June 2012, at 44. In November 2012, Ghanaabstained in a vote before the Third Committee of the United Nations General Assembly callingfor a moratorium on executions. United Nations General Assembly Third Committee, Voting

Records of the Committee, recorded vote on A/C.3/67/L.44/Rev.1 (Nov. 19, 2012), available athttp://www.un.org/en/ga/third/67/docs/votingsheets/l.44.Rev. 1.pdf.

16s Johnson, (2011) 2 S.C.G.L.R. at 699 (Dotse, J.S.C., concurring).

169 Id. at 692-93.

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696 CARDOZO PUB. LAW POLICY& drETHICS J.6

capital sentencing. Courts from around the world have experimentedwith the establishment of sentencing guidelines on the model of theUnited States and other developed nations, providing judges with abaseline sentence, typically a term of imprisonment, and permitting var-iations of that sentence based on enumerated aggravating or mitigatingcircumstances. 170 In April 2013, the Chief Justice of Uganda enactedsuch sentencing guidelines for his country.17 ' Elsewhere, instead of es-tablishing separate guidelines, some appellate courts robustly monitorlower court decisions for consistency, ensuring that judges do not departfrom the usual parameters for the length of a sentence of imprisonmentin the absence of weighty aggravating or mitigating circumstances. Thisis the case in Swaziland, where the Supreme Court routinely reducesoverly harsh sentences passed by lower courts after comparing them tothe typical range for such sentences and through reasoning by analogy toprior cases.17 2

His opinion also falls into the same trap as Judge Owusu's as heglides over the very real statutory interpretive difference between "shallsuffer death" and "shall be liable to suffer death." He acknowledgesArticle 3(3) of the Constitution of Ghana, which mandates the deathpenalty for any person convicted of high treason.17 3 According to Jus-tice Dotse, the existence of Article 3(3) indicates that the 1992 constitu-tion "does not directly or indirectly abhor or frown upon the impositionof the death sentence on the class of cases where the law provides forit."' 7 4 The essence of this argument is that the drafters of the constitu-tion contemplated the existence of the mandatory death penalty andintended to create a constitutional order that included it. Article 3(3)stated that a defendant "shall, upon conviction [for high treason], besentenced to suffer death" while Section 46 of the Criminal OffencesAct stated that a person who "commits murder is liable to suffer

170 See S.S. Terblanche, Sentencing Guidelines for South Africa: Lessons from Elsewhere, 120

S.A.L.J. 858 (2003).171 Edward Ssekina & Sulaiman Kakaire, Order, Certainty in New Sentencing Guide, THE

OBSERVER (Kampala) (June 19, 2013), http://allafrica.com/stories/201306200343.html).

172 Tsela v. Rex, Case No. 20/10, [2011] SZSC 13 (May 13, 2012).

173 See GHANA CONST. art. 3(3) (stating: "Any person who (a) by himself or in concert with

others by any violent or other unlawful means, suspends or overthrows or abrogates this Consti-

tution or any part of it, or attempts to do any such act; or (b) aids and abets in any manner any

person referred to in paragraph (a) of this clause; commits the offence of high treason and shall,

upon conviction, be sentenced to suffer death.").

'74 Johnson, (2011) 2 S.C.G.L.R. at 688 (Dorse, J.S.C., concurring).

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death."' 75 Section 180 of the Criminal Offences Act states, "[w]hoevercommits treason shall be liable to suffer death," which adopts the"looser" language of the murder provision at Section 46 rather than ofArticle 3(3), because the statute predates the constitutional text.'7 6 Cer-tainly, the penal code should be read as giving full effect to Article 3(3)of the Constitution, with an identical meaning. The existence of Article3(3)'s "shall suffer" language should not be read as identical to "shall beliable to suffer" language for purposes of the crime of homicide. Inaddition, where two interpretations of an ambiguous statutory provisionare possible, a court should render on the side that expansively favorsthe right to life. 177

Justice Dotse's opinion rejects the separation of powers argumentthat the mandatory death sentence is an unconstitutional constraint by alegislature on judicial sentencing discretion. "The principle of the sepa-ration of powers has been carried too far" by the Ugandan SupremeCourt in Kigula, Justice Dotse wrote.17 "[T]he concept as interpretedin the Kigula case meant that the Judiciary was interfering with the workof the Legislature."' 7 9 He reasoned that mandatory sentences did notunconstitutionally constrain judicial power. In this, he has some com-pany. Unlike the Supreme Court of Uganda, the Privy Council inLondon rejected a similar argument from the Caribbean. In a case aris-ing from Barbados, which had a mandatory death statute shielded by aconstitutional savings clause, the Privy Council refused to find themandatory death penalty to violate the structure of government provi-sions of the constitution.so One weakness of this argument, and per-haps an unstated reason as to why it was rejected by the Privy Council,is that it does not provide a limiting principle for other mandatory min-imum sentences - if a mandatory death sentence were an unconstitu-tional constraint on the judicial sentencing power, why would aminimum sentence of one year, or three, or ten, not also be an unconsti-tutional restraint? Ultimately, however, a trial judge is in the best placeto craft a sentence suitable to the crime committed, considering the to-tality of the circumstances, because he or she has the most intimate

175 MENSA-BONSU, CRIMINAL OFFENCES AcT, supra note 129.176 Id. at 175.177 See Elizabeth Wicks, The Meaning of "Life": Dignity and the Right to Life in International

Human Rights Treaties, 12(2) HuM. RTs. L. REv. 199, 201 (2012).178 Johnson, [2011] 2 S.C.G.L.R. at 695.179 Id.

180 Boyce v. The Queen, (2004) 3 W.L.R. 786 (P.C.) (appeal taken from Barbados).

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698 CARD OZO PUB. LAW POLICY & ETHICS J

familiarity with the evidence and personally judged the demeanor ofwitnesses. The interest is one of transparency, since a trial judge is sim-ply in a better position to craft an appropriate sentence than a paroleboard or clemency committee months or years later solely with a writtenrecord.

Justice Dotse's decision did make a concession to political reality.Ghana has not carried out an execution in twenty years, and likely neverwill again. Unlike Justice Owusu, whose decision provided a full-throated defense of capital punishment as a matter of policy, JusticeDotse instead advocated that the Parliament of Ghana should "seriouslyconsider whether to have a policy shift in the mandatory death penaltyregime imposed on those convicted of murder," including a division ofmurder into degrees."' The ultimate policy decision, however, was onethat must be left to the legislature, not the courts.

B. The Dissenting Opinion

Unlike the majority opinions, the dissent in Johnson closely fol-lowed the reasoning of the Kenyan, Malawian, and Ugandan decisions,and extensively cited the Privy Council's Caribbean jurisprudence. Thedissenter, Justice Samuel Date-Bah, found the persuasive authority fromother common law jurisdictions "irrefutable" and "irresistible," exten-sively quoting the Kenyan Mutiso decision over five pages. 1 8 2 justiceDate-Bah's construction of constitutional text comported with theemerging global consensus that savings clauses should be read narrowlyto best protect individual human rights. In the dissent he wrote, "wheninterpreting Ghanaian constitutional provisions in pari materia withother Commonwealth jurisdictions and international human rights in-struments," the Court should depart from their holdings "only for tan-gible policy reasons." 18 3 And here there were none: "The countervailingargument that all murders are murders and should be treated equally isan unreasonably inflexible ideological position, belied by actual humanexperience.""' Because of the universal nature of human rights, inter-pretations of constitutional provisions nearly identical to Ghana's anddrawn from jurisdictions with similar postcolonial histories were partic-ularly weighty.

181 Johnson, 2 S.C.G.L.R. at 702.182 Id. at 622 (Date-Bah, J., dissenting).183 Id.184 Id.

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In addition to finding that the mandatory nature of the death sen-tence was cruel, inhuman, and degrading and therefore a violation ofArticle 15(2) of Ghana's constitution, Justice Date-Bah also found that"[a] punishment that does not distinguish between the gravity of theparticular cases that trigger the punishment is inherently arbitrary," anda violation of Article 13(1) of the constitution prohibiting arbitrary dep-rivation of life."' This was a novel holding of the Kenyan Court ofAppeal in Mutiso, one not reached in the Ugandan decision in Kigula orthe Malawian decision in Kafantayeni, both of which avoided a directright to life holding.'16 Reframing the issue, Justice Date-Bah alsofound a violation of the right to a fair trial, contained at Article 19(1) ofthe Constitution of Ghana: "The inability of trial judges to exercise ...discretion to make the punishment fit the crime in cases of murder in-fringes the right of the accused to a fair trial."' 7 Finally, the dissentaddressed the separation of powers argument developed by the UgandanSupreme Court in Kigula and rejected by Justice Dotse: "It is judgeswho must exercise final judicial power and this power includes thepower to determine what sentence is appropriate on the facts of individ-ual cases.""' The most striking quality of the dissent is how sweepinglyit vindicated prior persuasive authority from around theCommonwealth.

The dissent also addressed an argument unique to Ghana's 1992constitution: the provision at Article 3(3) providing for the mandatorydeath sentence for high treason. Justice Date-Bah distinguished themandatory death penalty for murder, "a criminal offence with a verywide range of moral culpability scenarios," from high treason, whichhad a range of moral culpability "of a more limited nature," as it was,for instance, premeditated by definition.1 89 This was a novel argumentbased on the Ghanaian context, but it may have relevance for jurisdic-tions that still possess the mandatory death penalty for specific-intentcrimes such as drug trafficking, a crime that also typically requires pre-meditation and does not encompass heat of passion conduct. In 1981,

185 Id. at 634.186 See Kafantayeni v. A.G., (2007) MWHC 1, 6-7 (Malawi) (failing to reach the right to life

issue); A.G. v. Kigula, (2009) 2 E.A.L.R. 1, 17 (Uganda S.C.) (finding that the death penaltyper se was constitutionally saved and thus could not violate the right to life).

187 Johnson, 2 S.C.G.L.R. at 638.

188 Id.

189 Id. at 633.

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700 CARDOZO PUB. LAW POLICY &' ETHICSJ. [

the Privy Council upheld Singapore's mandatory death penalty for drugtrafficking, distinguishing the crime from homicide in dicta:

Wherever a criminal law provides for a mandatory sentence for anoffence there is a possibility that there may be considerable variationin moral blameworthiness, despite the similarity in legal guilt of of-fenders upon whom the same mandatory sentence must be passed. Inthe case of murder, a crime that is often committed in the heat ofpassion, the likelihood of this is very real: it is perhaps more theoreti-cal than real in the case of large scale trafficking in drugs, a crime ofwhich the motive is cold calculated greed. 90

Justice Date-Bah's opinion distinguishing high treason from homicide islogically consistent and accords with social reality. By starting with theassumption that treason (a specific intent crime) and homicide (a gen-eral intent crime) were constitutionally indistinguishable, the majoritymissed another chance to align Ghana's death penalty law with theemerging international consensus.

C. Johnson's Appeal to the United Nations Human Rights Committee

With the assistance of the Death Penalty Project, a London-basedhuman rights organization, Dexter Johnson filed a petition with theUnited Nations Human Rights Committee (UNHRC) in Geneva, atreaty body composed of experts who hear individual complaints underthe International Covenant on Civil and Political Rights (ICCPR).191

On March 27, 2014, the UNHRC ruled that Johnson's death sentenceviolated Article 6(1) of the ICCPR, which prohibits the arbitrary depri-vation of life. 1 9 2 The Committee explained that although the ICCPR isnot incorporated into Ghana's domestic law, the Convention providespersuasive guidance to the interpretation of the right to life provisionunder Article 13(1) of the Constitution of Ghana. 19 3 Johnson arguedthat a mandatory sentence of death with no judicial discretion to substi-

190 Ong An Chuan v. Public Prosecutor, (1981) A.C. 648, 673-74 (P.C. 1980) (appeal takenfrom Sing.).

191 The UN Human Rights Committee was established in 1976 via the First Optional Proto-col to the ICCPR to permit individuals to file complaints for violations of the Covenant. SeeLinda Camp Keith, The United Nations International Covenant on Civil and Political Rights: DoesIt Make a Difference in Human Rights Behavior?, 36 J. PEAcE REs. 95, 98-99 (1999).

192 Johnson v. Ghana, Comm. No. 2177/2012, UN Doc. CCPR/C/110/D/2177/2012

(March 27, 2014) (U.N.H.R.C.).193 Id. at 1 2.2.

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tute a lesser sentence prevented courts from passing a sentence that con-sidered the specific circumstances of the offense or the offender,including on appeal. 9 4 The result, Johnson argued, was a sentence thatviolated the prohibition on cruel, inhuman, or degrading punishmentunder Article 7 of the ICCPR.19 5

The Government of Ghana responded to Johnson's submissions byarguing that the country was defacto abolitionist as the country had notcarried out an execution in 20 years and likely never would again.' 96

The Government further argued in its submissions that the death pen-alty was restricted to only the most serious crimes, since a conviction ofmurder requires a unanimous jury decision; since Ghana exempts vul-nerable groups such as juveniles, pregnant women, or nursing mothersfrom the death penalty; since a prisoner has the right to seek commuta-tion or pardon; and since an accused person may make affirmative de-fenses at trial to reduce a conviction to manslaughter.1 97 Finally, theGovernment reiterated that the Constitution of Ghana was the supremelaw of the country, to be interpreted by the Supreme Court as the finalarbiter, whereas the ICCPR had not been incorporated into Ghana'sdomestic law.' 98 In rebuttal, Johnson argued that these argument werebeside the point; that some murder convictions resulted in a manslaugh-ter conviction or in a subsequent executive commutation or pardon didnot change the fact that the death sentence was mandatory for mur-der.199 In addition, he argued that the current moratorium on execu-tions in Ghana was a political matter, not a legal one, and could bechanged at any time; similarly, pardon or commutation of sentence werediscretionary political decisions and not legal conclusions.20 0

The Committee ruled that the mandatory death penalty in Ghanaconstituted an arbitrary deprivation of life, and ruled that Ghana wasobligated to provide Johnson with an effective remedy, including com-mutation of his death sentence. 2

01 The Committee reaffirmed its prior

precedent that automatic and mandatory imposition of the death pen-

194 Id. at 3.2-3.3.195 Id. at 1 3.2.196 Id. at 4.1.197 Id. at 4.5-4.7.198 Id. at 4.9.199 Id. at 5.2.200 Id. at 5.6.201 Id. at 9.

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alty constitutes an arbitrary deprivation of life.2 02 In addition, theCommittee cited a recent case from Sri Lanka in which it held that theexistence of a de facto moratorium on the death penalty was not suffi-cient to make the mandatory death sentence consistent with theICCPR.20 3 Finally, the Committee reiterated its long-held position thatthe right to seek commutation or pardon did not adequately protect theright to life in death penalty cases, as these discretionary measures by theexecutive were subject to political considerations different from those ofa judicial body.204 Because the Committee ruled in favor of Johnson asto the arbitrary deprivation of life at Article 6(1), it did not reach hisalternative arguments that the mandatory death penalty violated theprohibition on cruel and degrading punishment (Article 7) or the rightto a fair trial (Article 14).205

V. THE FUTURE OF THE DEATH PENALTY IN GHANA

The decision of the Supreme Court of Ghana in Dexter Johnsoncomplicates the continent-wide trend toward abolition of themandatory death penalty. 206 However, unlike the case law from Malay-sia and Singapore, the Ghanaian decision falls short of a comprehensiveand philosophical defense of the mandatory nature of the death penalty;the Court failed to consider the very different constitutional contexts ofMalaysia and Singapore, and perhaps missed an opportunity to distin-guish Ghana's constitution from those. Unlike virtually all other formerBritish colonies, neither the Malaysian nor Singaporean constitutionsexplicitly prohibit cruel, inhuman, and degrading treatment or punish-

202 Id. at 1 7.3, citing inter alia, Thompson v. St. Vincent & The Grenadines, Comm. No.806/1998, U.N. Doc. CCPR/C/70/D/806/1998 (2000) (U.N.H.R.C.). Thompson was the firstof a string of UNHRC decisions that found the mandatory death penalty violated the right tolife under the ICCPR. See also, Kennedy v. Trinidad & Tobago, Comm. No. 845/1998, U.N.Doc. CCPR/C/67/D/845/1999 (2002) (U.N.H.R.C.).

203 Johnson v. Ghana, supra note 192 at 5 7.3, citing Weerawansa v. Sri Lanka, Comm. No.1406/2005, U.N. Doc. CCPR/C/95/D/1406/2005 (2009), at 7.2.

204 Johnson v. Ghana, supra note 192 at 1 7.3, citing Thompson, supra note 202 at 8.2.205 Johnson v. Ghana, supra note 192 at 1 7.4.206 In October 2013, a five-judge panel of the Kenya Court of Appeal purported to overrule

Muriso. Like the Dexter Johnson decision, it was poorly reasoned and did not present a logicallyconsistent alternative to the mandatory death penalty. The case is on appeal before the newSupreme Court of Kenya, created in 2010 under the new constitution. Mwaura v. Republic,Crim. App. 5/2008 (Oct. 18, 2013) (Kenya C.A.); Sam Kiplagat, Death Row Convict Goes to

Supreme Court to Overturn Sentence, THE STAR, (Nov. 5, 2013), http://allafrica.com/stories/201311051017.html.

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ment.20 7 In addition, neither recognizes a right to a fair trial in theconstitutional document itself or through acceptance of internationalcustomary law or ratification of treaties.208 Courts in both countrieshave distinguished their own constitutions from others in the Common-wealth and have defended mandatory capital punishment not just on aninstrumental level but on a philosophical one as well. 20 9 By contrast,the Supreme Court of Ghana was unable to articulate a logically consis-tent distinction between Ghana's constitution and similar ones such asthose in Uganda, Kenya, and Malawi.

Despite the decision of the Supreme Court in Dexterjohnson, thedeath penalty may well be abolished in the near future. The sensationalcase of Benard Tagoe, who was acquitted after 24 years on death row inGhana by the Court of Appeal, was a cold reminder that wrongful con-victions do occur.2 1 0 The fact that the mandatory death penalty overpunishes for homicides that do not necessarily deserve death is undoubt-edly one factor that has contributed to capital punishment's erodinglegitimacy. 21" After the decision in Dexter Johnson, the London-basedDeath Penalty Project and the Human Rights Advocacy Center in Accrafiled a communication with the United Nations Human Rights Com-mittee on Johnson's behalf.2 1 2 The Committee favorably ruled in John-son's case, just as it had on similar mandatory death petitions arisingfrom the Commonwealth Caribbean. Johnson's petition may help fur-ther clarify the obligations of state parties in death penalty cases underinternational law.

207 For the fundamental rights provisions of the constitutions, see SING. CONST. arts. 9-16and MALAY. CONST. arts. 5-13.

208 See SING. CONST. arts. 9(2)-(4),11(1)-(2); MALAY. CONST. arts. 5(2)-(4), 7(1)-(2).

209 Sangmin Bae, Is the Death Penalty an Asian Value?, 39 ASIAN AFF. 47, 49 (2008); Alfred

Oehlers & Nicole Tarulevicz, Capital Punishment and the Culture of Developmentalism in Singa-pore, in THE CULTURAL LIVES OF CAPITAL PUNISHMENT: COMPARATIVE PERSPECTIVEs 291,

292 (Austin Sarat & Christian Boulanger eds.,2005).

210 Abolish Death Penalty, PUBLIC AGENDA (Accra) (uly 30, 2010), available at http://al-

lafrica.com/stories/201105231729.html.211 Interestingly, one consequence of the mandatory nature of the death penalty in Ghana is

that it increases suicides by perpetrators, as evidenced by the relatively high rate of suicide

among husbands who have murdered their wives, a category of homicide that possesses unique

characteristics of motive and criminal prosecution. Adkinrah, Husbands Who Kill Their Wives,supra note 80, at 305.

212 UN Human Rights Committee, DEATH PENALTY PROJEcT, http://

www.deathpenaltyproject.org/where-we-operate/international/un-human-rights-committee/(last accessed May 13, 2013).

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The Ghanaian government has also made affirmative steps towardabolition of the death penalty. Besides Ghana's abstention in theUnited Nations General Assembly's Third Committee on a worldwidedeath penalty moratorium in November 2012, the close but decisivereelection of President John Dramani Mahama in December of that yearpreserved the Constitutional Review Commission's proposed White Pa-per calling for abolition of capital punishment, which was part of apackage of constitutional reforms that were accepted by the rulingparty.2 13 With this White Paper, the ruling party has accepted deathpenalty abolition in principle. The Supreme Court's decision in DexterJohnson is the last stand of capital punishment in Ghana. In its rejectionof the emerging Commonwealth consensus that not all murders are de-serving of death, the decision fails to accord with the legal realities of adeveloping nation plagued by weaknesses in investigations and prosecu-tions, constraints on legal aid, and backlogs in criminal proceedings. Ina system such as this, the risk of arbitrariness and mistake in capitalsentencing is intolerably high, and a mandatory death penalty exacer-bates these underlying stresses.

213 Republic of Ghana, White Paper on the Report of the Constitution Review Commission ofInquiry, W.P. No. 1/2012, June 2012, at 44.

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