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Ghana has 163 convicts on death row

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There are 163 convicts on death row in Ghana and they are treated as convicts serving life imprisonment, the Attorney-General and Minister of Justice, Godfred Yeboah Dame, told Parliament.

He said, however, that since July 1993, the death penalty had never been carried out although a number of accused persons had been sentenced to death.

The Attorney-General and Minister of Justice said this when he appeared before Parliament to respond to a question by Mr Francis-Xavier Kojo Sosu, the Member of Parliament (MP) for Madina, who wanted to know the steps  being  taken  to  amend the laws  to abolish the death penalty.

The abolition was recommended by the Constitution Review Commission in 2011.

In response, the Minister said the death penalty in Ghana had constitutional and statutory underpinnings in terms of creation of offences for which the penalty is death.

The offences include high treason, murder, genocide, piracy and organised criminal group contrary to provisions set in the Criminal Offences Act, (1960), Act 29.

He said the offence of high treason was created by Article 3(3) of the 1992 Constitution and a penalty of death is stipulated in the provision for its commission.

Further, Article 19(2)(a) provides a clue that the  framers  of the  Constitution  were  cognisant  of  the existence  on  the statute  books  of  Ghana  of offences punishable by death other than high treason.

The provision in setting out the procedure for a trial of a certain class of offence, stipulates thus: “A person charged with a criminal offence shall (a)in the case of an offence other than high treason or treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury.”

The Minister explained that high treason was not tried by a judge and jury and that the provision in Article 19(2)(a) on  the  clear  wording,  therefore,  suggests that the framers of the Constitution contemplated the existence  of  offences  for which  the punishment would be death or life imprisonment.

“It is my respectful submission that an abolition of the death penalty would imply an amendment of  articles  3(3)  and 19(2)(a)  of  the  Constitution  as  well  as  provisions  of  the Criminal Offences Act, 1960 (Act 29)” the Minister said, adding; “An amendment of Act 29 is the duty of Parliament, and not the Executive.

Mr Dame, however, said an amendment of articles 3(3) and 19(2)(a) of the Constitution must  be effected  through  a  recourse  to  the procedure stipulated in Article 290, since the provisions were entrenched.

He submitted that the processes  to  trigger an amendment  of  an  entrenched  provision, including  the  provisions  on  the  death  penalty,  were the prerogative of Parliament.

The Minister said following the completion of the work of the Constitution Review  Committee in January 2010, the Constitution  Review Implementation  Committee  was  established in September, 2012, to implement the Government White Paper on the recommendations.

The Constitution Review Implementation Committee proposed  40 amendments  of  entrenched provisions with two  additional  consequential  amendments and transitional provisions, as well as 50 non-entrenched proposed amendments and six additional clauses.

To achieve this, the Constitution Review Implementation Committee, before the expiry of its mandate on 31st December, 2016, presented to the then Attorney-General, Mrs Marietta Brew Appiah-Oppong, a Constitution (Amendment) (Entrenched Provisions) Bill, and a Constitution (Amendment) (Non-Entrenched Provisions) Bill.

Clause 2 of the Constitution (Amendment) (Entrenched Provisions) Bill provides for the abolition of the death penalty.

The Minister said effectively, this would have replaced the death penalty with imprisonment for life without parole.

However, given the limited  time,  inadequate  consultation  and  the requirement of a referendum under Article 290 of the Constitution, the Constitution (Amendment) (Entrenched Provisions) Bill did not go through the processes constitutionally required for its passage.

According to the Minister, when Ms Gloria Afua Akuffo assumed office as the Attorney-General, she  established the Constitution Amendment Review Committee on October 17, 2018 to review the work and identify  practical  ways to  facilitate  the  implementation  of the proposed amendments.

Mr Dame said the Committee, which he chaired, observed  that the manner in which the erstwhile Constitution Review  Implementation Committee had proposed 40 amendments of entrenched provisions with two additional consequential amendments and transitional provisions, as one bill, to be voted upon at one referendum was not feasible, unwieldy and not in the national  interest.

“The intended exercise could actually be interpreted as an attempt to force the hands of the electorate to make such an important decision without reference to the substantially diverse nature of the   amendments,” the Minister said.

“This approach was inherently unconstitutional as the free choice of the electorate, which is an essential aspect of the referendum exercise, would have been defeated.”

Mr Dame said the Committee, in identifying practical ways to facilitate the implementation  of  the proposed amendments, noted that the proposed amendments needed to be prioritised with reference to those, which were of utmost public interest and importance  and  those,  which could be amended  within  the  shortest  possible  time.

The abolition of the death penalty was not one of them, he said, and that given that the Constitution was not amended to abolish the death penalty, the amendment of section 49 of the Criminal Offences  Act,  1960  (Act  29),  and  sections  294  and  295  of the Criminal and Other Offences (Procedure) Act, 1960 (Act  30) on the death  penalty  had also not  been  effected and were still on the statute books.

Source: GNA

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