The Long Arms of the Law Over You: It Governs the Unborn, life after birth and Even Your Dead Body

Over the ancient ages and even in contemporary times, the law has been used as a powerful tool to govern societies, whether it is a positive or moral law. The law is, therefore, used to govern every aspect of human life such as life unborn, life after birth and matters relating to dead bodies (corpus mortum) as well as endeavors such as contracts, rights to property ownership, businesses among others.

This article will discuss- within the Ghanaian legal regulatory framework- how the law governs every aspect of human life including the time when a person was unborn (foetus), born (from childhood to adulthood) and after death (how the law affects dead bodies). The discussion will be hinged on the law from the legal positivist and realist perspectives hence the submissions will be supported with relevant constitutional and statutory provisions as well as judicial precedent or case law as they bindingly or persuasively prevail in Ghana.

From the legal positivist perspective, a valid law is what the lawmaker or the sovereign command says it is and from the legal realism perspective, the validity of law is derived from what the judges say the law is through their judicial decisions. Realists such as Friedman, Oliver Windell Holmes, Cardozo and Jerome Frank viewed the law as what judges actually do in practice through their judicial decisions thereby focusing on human factors, societal interests, and empirical study to understand the law and its applications.

A logical conclusion will then be made to draw the curtain on the discussions.

As a jurisdiction operating within the common law legal tradition, Ghana’s Legal System relies on both positive and judge-made laws in addressing legal problems or issues. Such laws have been applied to govern humanity from unborn through life after birth to whatever happens to a person’s dead body. These aspects of human life under the law has been discussed as follows.

The Law and the Unborn Child
In Ghana, Sections 58 and 67 of the Criminal Law[1] govern abortion and thereby protect the life of an unborn child. Whereas Section 58 (1) of Act 29[2] prohibits abortion or miscarriage of an unborn baby, Section 58 (2) of Act 29 permits abortion or miscarriage only under the stated circumstances. Suffice it to say that abortion or miscarriage is generally a criminal offence in Ghana but this general prohibition has some exceptions to it.

Section 58(4) of Act 29 defines abortion or miscarriage as the “premature expulsion or removal of conception from the uterus or womb before the period of gestation is completed”.

Per Section 58 (1) (a), subject to Section 58 (2), a woman who, with intent to cause abortion or miscarriage, administers to herself or consents to be administered to her a poison, drug or any other noxious thing or uses an instrument or any other means, or commits a criminal offence and is liable on conviction to a term of imprisonment not exceeding five years.

Section 58 (b) of Act 29 also provides that a person commits a criminal offence and is liable on conviction to a term of imprisonment not exceeding five years when he or she:

(i) administers to a woman a poison, drug or any other noxious thing or uses an

instrument or any other means with the intent to cause abortion or miscarriage of that

woman, whether or not that woman is pregnant or has given her consent,

(ii) induces a woman to cause or consent to causing abortion or miscarriage,

(iii) aids and abets a woman to cause abortion or miscarriage,

(iv) attempts to cause abortion or miscarriage, or

(v) supplies or procures a poison, drug, an instrument or any other thing knowing that it is intended to be used or employed to cause abortion or miscarriage,

However, Section 58 (2) of Act 29 provides some exceptions to the prohibition of abortion or miscarriage. For example, it is not a criminal offence under the Criminal Law of Ghana if an abortion or a miscarriage is caused by a gynaecologist or any other registered medical practitioner in a government or private hospital where:

the pregnancy is the result of rape, defilement of a female idiot or incest, and the abortion or miscarriage is requested by the victim or her next of kin or the person in loco parent is, if she lacks the capacity to make the request;
the continuance of the pregnancy would involve risk to the life of the pregnant woman or injury to her physical or mental health, and the woman consents to it or if she lacks the capacity to give the consent it is given on her behalf by her next to kin or the person in loco parentis; or
where there is substantial risk that if the child were born, it may suffer from, or later develop, a serious physical abnormality or disease.

Per Section 67 (1)(2) of Act 29, where a person does an act in good faith to purposely provide medical or surgical treatment and the act leads to death or appears to lead to death, it shall not be presumed that the person intended causing death. Specifically, Section 67 (2) of Act 29 provides, “An act which is done, in good faith and without negligence, for the purposes of medical or surgical treatment of a pregnant woman is justifiable, although it causes or is intended to cause abortion or miscarriage, or premature delivery, or the death of the child”.

It is evident from the foregoing that the law or the positive law protects an unborn child and prohibits its killing through abortion or miscarriage, save for the circumstances stated under Sections 58 (2) and 67 of Act 29.

Suffice it to say that causing an unlawful abortion is punishable by law. In State v. Ohene-Kesson & Mensah[3], the appellants (Kesson and Mensah) were convicted of conspiracy to commit abortion and related offenses based on evidence from the victim, (Wilhelmina Richter) who was a student nurse. Kesson attempted to abort Wilhelmina’s pregnancy but later referred her to Mensah, who performed an incomplete abortion thereby causing severe health complications including peritonitis (infection in the abdomen). The Supreme Court upheld the convictions, finding the evidence, especially a letter (exhibit E) and medical testimony, sufficient. The court also affirmed that joining a conspiracy charge was appropriate given the evidence of an agreement between Kesson and Mensah. The appellants' arguments on misdirection and lack of corroboration were dismissed as the court found substantial supporting evidence.

The Law and the Person after birth

Even after a person was born, the law protects that person and equally governs their conducts throughout their life time. Whereas Article 13 of the 1992 Constitution provides for the protection of life with exceptions, Article 28 provides for children’s rights. Article 28 (5) of the Constitution, 1992 and Section 1 of the Children’s Act[4] define a child as “a person below the age of eighteen years”. Sections 13 and 26 of Act 29 jointly provide that an infant and for that matter a person below 12 years is not capable of committing crime. Regarding medical treatment, education and other benefits for a child, Article 28 (4) of the Constitution, 1992 provides that “No child shall be deprived by any other person of medical treatment, education or any other social or economic benefit by reason only of religious or other beliefs”.

One may thus submit poignantly that subject to Article 28(4) of the Constitution, 1992, it is unlawful for a parent to prevent blood transfusion on a child when it becomes necessary for a hospital to transfuse the child as part of the necessary medical treatment required to save the child’s life.

The law does not only govern a person’s childhood but also their adulthood throughout their life on planet earth. The law, therefore, protects adults and at the same time punishes adults whose conducts are in breach or in excess of the law. For example, the Criminal Law of Ghana (Act 29) prohibits rape and provides punishment for it subject to the provisions of Article 19 (5)(11) of the Constitution, 1992. Article 19(5) provides essentially that a person shall not be punished based on a retrospective law hence a conduct by a person which does not constitute a criminal offence today shall not later be termed a criminal offence only because a new law criminalizes that conduct retrospectively.

Article 107(b) of the Constitution also prevents Parliament from enacting retrospective laws that operate to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 to 182 of this Constitution. Articles 178, 179, 180, 181 and 182 of the Constitution, 1992 relate to withdrawals from public funds, Appropriation Act (the approved national budget), expenditures in a advance of appropriation, government loans and the public debt respectively.

Article 19 (11) of the Constitution, 1992 also provides based on the principle of legality that unless an act or a conduct is prohibited by a written law in force and the punishment duly defined for that conduct, a person who engages in such a conduct shall not be punished. This proviso was upheld in the case of Tsatsu Tsikata v The Republic[5]

Also, in tandem with the provisions of Article 19 (5)(11) of the Constitution,1992, a person (natural or juristic) must not be punished based on a repealed law.

In British Airways and Another v Attorney-General[6] Acquah JSC supported the views of Bamford-Addo JSC (as she then was) and stated inter alia that “…The Article 19 (11) formulation in effect requires that at every stage of the investigation and prosecution of an offence, there must be a written law creating the offence and prescribing the punishment for it… If at [ pg 71] any stage before the conviction, the law creating the offence and the punishment is totally repealed without any saving, the investigation and proceedings cannot be continued”.

Subject to its Sections 97 and 98, Act 29 criminalizes rape and makes it a first-degree felonious crime, hence if the prosecution shows beyond all reasonable doubts that a person has committed rape, that person is punished with the custodial sentence ranging from a minimum of five (5) years to a maximum of 25 years. Section 98 defines rape has having carnal knowledge of a female of at least 16 years without her consent. As such, the elements of rape are that:

There was carnal knowledge of a female victim
The female was at least 16 years or more at the time of the carnal knowledge
The accused was the one who had the carnal knowledge of the victim and within the meaning of Section 26 of Act 29, the accused is capable of committing crime.
The female victim did not consent to the carnal knowledge within the meaning of Section 14 of Act 29 or the female victim gave a valid consent to the sexual act but later revoked the said valid consent.
The accused must be a male and not a female

In the case of Gligah & Atiso v The Republic[7], Dotse JSC defines carnal knowledge as the penile penetration of the vagina of female who is 16 years or more without her consent. The depth of the penile penetration of the vagina is immaterial, save that penetration goes beyond what is usually described as “brushing”. In Gligah & Atiso, the accused persons were found guilty of rape and duly punished because prosecution proved all the elements of rape and the accused’s appeal against their conviction failed. However, in Richard Banousin v. The Republic[8], the prosecution failed to adduce enough evidence to prove the elements of rape necessary to find the accused blameworthy for rape hence the accused was acquitted and discharged.

Suffice it to say that the law or the positive law governs the sexual practices of an adult who is capable of committing crimes generally. The law thus governs the adulthood practices of a person.

In terms of contractual obligations and other business ventures such as sale of goods and hire purchases, there are separate statutes in force in Ghana that govern a person’s ventures or dealings in such endeavours. It is evident that there is no aspect of a person’s life that the law does not govern.

Section 124 and 125 of Act 29 equally prohibit stealing (dishonest appropriation of a thing not owned by the person who appropriates the thing). This means that per the dictates of the law, a person must not steal another’s property because doing so attracts punishment within the penal system based on Articles 19 (5)(11) of the Constitution, 1992. Also, Sections 46,47, 50 and 51 of Act 29 prevent the adult person from committing the homicidal offences of murder and manslaughter. The prohibition of these intentional (murder) and non-intentional(manslaughter) homicidal crimes have been upheld in the cases of Sene & Another v The Republic[9] and Serechi v The Republic [10] where the homicide was judged as manslaughter and murder respectively. In Sene, the Court stated that starting an unlawful fight does not necessarily point to the intention to kill another while in Serechi, a person who pushes another off a fast-moving train should not be heard to say they did not intend to kill the victim who is pushed off the fast-moving train. Section 11 of Act 29 governs a person’s intent to commit a crime.

The Law and Dead Bodies
That a person dies does not mean they have nothing to do with the law. Even after a person dies, the law governs their dead body and properties. Various statutes in Ghana govern or regulate matters relating to the body and properties of a deceased. Notable among these statutes are Act 29[11], Registration of Births and Deaths Act[12] , Coroners Act[13] , Anatomy Act[14], the Wills Act[15],Intestate Succession Act[16] , Right to Information Act[17] and the Public Health Act[18]

For example, Section 285 of Act 29 prohibits hindering the burial of a dead body. Accordingly, a person who unlawfully hinders the burial of the dead body of a deceased, or without lawful authority disinters, dissects or harms the dead body of a person, or being under a duty to cause the dead body of a person to be buried, fails to perform that duty commits a misdemeanor. In Foli VIII & Others v. The Republic[19], the appellants cremated the body of a deceased at Akrofu in Volta Region contrary to Sections 29 and 285 of Act 29 and they were found guilty of the offence of hindering burial of a dead body and they were convicted accordingly.

Within the meaning of Section 296 (4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) a person who commits misdemeanor receives the custodial sentence not exceeding three (3) years. Section 50 (1)(2) of Act 851 has provisions similar to that of Section 285 of Act 29. Though the law permits burial of a dead body, the Coroners Act mandates the coroner to cause the exhumation of dead and buried bodies under stated circumstances.

Also, Act 1027 (Birth and Death Registration Act) mandatorily requires that all births and deaths must be registered. As such, both a person’s birth and death must be registered according to law.

Section 5 of Act 280 permits the Medical Head of any hospital to donate an unknown and unclaimed body of any deceased individual dying of known causes to the Head of any medical school or institution for anatomical research, provided that the deceased died of a known causse which is not a contagious disease and that the body has been lying at the hospital morgue for a period which in the opinion of the Medical Head has been unreasonably long. Both PNDC Law 111 and Act 360 (Wills Act) also govern the management of a deceased’s estate depending on whether the deceased died testate (with a will) or intestate (without a will).

Section 15 (1) (b) of Act 989 (Right to Information Act) exempts the disclosure of an information which reveals confidential communication between a doctor and a patient or any other medical expert in connection with the medical diagnosis or treatment of the patient and per Section 16 of Act 989, it is immaterial that the person whose information is exempt from disclosure is dead or alive.

In conclusion, this piece has discussed, with the support of relevant legal authorities that the law governs life unborn, life after birth and bodies and properties of deceased persons.

Said differently, it is evident from the foregoing discussion that the law governs unborn children, life after birth and matters relating to a person’s death especially regarding the disposal of the dead body and management of the deceased’s estates. The law governs pregnancy, birth and disposal of dead bodies. This discussion has demonstrated with support of relevant legal authorities cited that there is no aspect of a person’s life that is not regulated by law.

Indeed, the law has long arms that stretch into eternity, governing or regulating you from an unborn child through your life on earth to even your body as it lies in death and the properties you have left behind pursuant to your death.

It was William Shakespeare that said that “everything that lives must die, passing through nature to eternity”. In Ghana, a person living on earth or their passing through nature and certain aspects of their being in eternity is regulated by law as shown in the discussion to this end. The law is the law and it has long arms, so whether you are unborn, born or dead, it governs you.

[1] Criminal Offences Act, 1960 (Act 29)

[2] ibid

[3] [1961] SCGLR 708-716

[4] 1998 (Act 560)

[5] [2003-2004] 2 SCGLR 1068 (SC)

[6] [1997-98] 1 GLR 55-75

[7] [2010]SCGLR 870

[8] Appeal No: J3/2/2014 dated 18^th March 2014

[9] [1977]1GLR434-440

[10] [1963] 2 GLR 531-536

[11] ibid

[12] 2020 (Act 1027)