Repealed Laws and Criminal Liability in Ghana: A Constitutional and Jurisprudential Analysis of Edmund Addo v. Republic

In February 2024, the Supreme Court of Ghana delivered a landmark decision in The Republic v. Edmund Addo (Civil Motion No. J7A/02/2023), which offered clarity on the interaction between the Constitution’s guarantees for a fair trial and the saving provisions contained in the Interpretation Act, 2009 (Act 792). The matter concerned whether a criminal prosecution could proceed under a statutory provision that had been repealed by later legislation. The case brought into focus two important legal principles: the constitutional prohibition against retroactive criminal law, enshrined in Articles 19(5) and 19(11) of the 1992 Constitution, and the statutory preservation of liability for past offences under repealed legislation, as set out in Section 34 of the Interpretation Act.

Edmund Addo had been prosecuted under Section 136(b) of the Electronic Transactions Act, 2008 (Act 772), which criminalised certain conduct relating to child pornography. His actions took place while this provision was still in force. However, before the conclusion of his trial, the provision was repealed by the Cybersecurity Act, 2020 (Act 1038). Addo argued on appeal that it was unconstitutional to convict him under a law that had been repealed, that his prosecution violated Article 19(11) of the Constitution, and that the Court of Appeal had wrongly applied Section 34 of the Interpretation Act. The Supreme Court therefore had to determine whether the repeal effectively nullified the offence for the purposes of prosecuting Addo.

Article 19(5) of the Constitution states that a person shall not be charged with or held guilty of a criminal offence which is founded on an act or omission that did not, at the time it took place, constitute an offence. This provision embodies the long-established legal maxim nullum crimen sine lege, meaning there can be no crime without law, and it forbids retroactive criminalisation. Article 19(11) further provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. Together, these provisions ensure that criminal liability must be based on conduct that was clearly defined as an offence in written legislation at the time it was committed, protecting individuals from arbitrary or unforeseen prosecution.

Section 34 of the Interpretation Act addresses the effect of repeal and expressly provides that repealing or revoking a law does not affect an offence committed against that law while it was in force. It also states that any penalty, forfeiture, or punishment incurred for that offence remains enforceable, and any investigation, legal proceeding, or remedy in respect of that offence may be instituted, continued, or enforced as if the law had not been repealed. This provision embodies a common law principle that the repeal of a statute does not operate as a blanket amnesty for conduct that was unlawful before the repeal, unless the repealing statute explicitly says so.

The Supreme Court concluded that Section 34 applied directly to Addo’s case. His conduct occurred while Section 136(b) of Act 772 was still in force, meaning the offence was validly defined in written law at that time and thus satisfied Article 19(11). With respect to Article 19(5), there was no retroactive application of criminal law because the prosecution was grounded in behaviour that was criminalised when it took place. The repeal did not alter the legal status of that behaviour, and Act 1038 contained no provision indicating that prosecutions for pre-repeal offences should cease. The Court also reaffirmed the principle that repeal alone does not nullify pending prosecutions or erase liabilities unless the legislature explicitly provides for such an effect.

From a constitutional standpoint, the decision harmonises Section 34 of the Interpretation Act with Articles 19(5) and 19(11). It maintains the principle that no one should be punished for conduct that was not criminal at the time while also ensuring that those who committed offences under valid laws cannot escape liability through legislative change. From a rule of law perspective, the ruling reinforces legal certainty: individuals are subject to the law as it stands at the time of their actions, and legislative amendments cannot retrospectively absolve them unless the legislature expressly intends that result. From a policy standpoint, it also prevents offenders from exploiting statutory reform as a loophole to evade justice, thereby supporting the integrity and continuity of the criminal justice system.

The dismissal of Addo’s appeal by the Supreme Court therefore stands as a strong statement that constitutional safeguards against retroactive criminalisation are not to be misunderstood as a shield for those who offend under a valid law, only to benefit from its later repeal. Section 34 of the Interpretation Act does not conflict with the Constitution; instead, it operates in harmony with it to ensure that while no one is prosecuted for a non-existent crime, no one who has committed an actual offence is spared justice simply because the law has changed. The Edmund Addo case thus affirms two complementary principles that together uphold fairness and accountability in Ghanaian criminal law: no person may be punished for an act that was not an offence when committed, and no person may avoid punishment for an act that was an offence at the time merely because the law has since been repealed.