SENTENCING IN GHANA: AN OPEN LETTER TO HER LADYSHIP THE CHIEF JUSTICE OF GHANA.

Her ladyship the chief justice,
I would not normally correspond with someone in such a high authority as you in public given my belief in quiet diplomacy. But l am conscious and aware that l am not a diplomat but rather an advocate who has the responsibility towards my clients, the Ghanaian first and foremost rather than some bizarre protocol called diplomacy on this occasion

The decision to put my thoughts to you directly in public domain, rather than through the usual bureaucratic system is the desire that my concerns actually get your direct attention instead of it ending up in the waste basket of those civil servants who tend to make some decisions on behalf of their bosses without any element of sound judgement of the harm they rather cause by their actions.

Sometime about June last year, l wrote a private letter to you expressing my concerns about what l perceived as the inadequacies of Ghana's criminal justice system and suggested the reform of our penal policy, particularly to reflect the main features of modern criminology which has questioned retributive punishment given it is no longer the direction penal policy should continue to go worldwide

I reiterated in the concept paper you requested which l made available to you through your learned judge ( name withheld) you asked to discuss the subject with me on the emphasis which current penal policy has placed on rehabilitative punishment as the most credible approach to crime and punishment

You will recall my demonstration of non –custodial measures as the best mechanism of responding to the minor criminal behaviour of offenders as pertains in the examples of criminal justice delivery in those countries l indicated albeit in accordance with the United Nations Standards Minimum Measures for Non- Custodial Sentencing and the Penal Reform International's new agenda for penal reforms

As l had clearly stated, alternative to custodial sentencing of offenders who commit minor offences or misdemeanours have proved to be the most prudent and credible options of sentencing given the numerous advantages

Besides providing the framework of rehabilitating the offender, confronting the offender to take responsibility for their anti social behaviour, offer protection to the public, it also provides the unique opportunity of the resettlement of the offender back into his/her community, where they can begin to contribute positively towards community development

The greatest advantage is that alternative to custodial sentencing also provides the mechanism for addressing the immediate concerns of the victim through restorative justice, victim-offender conferencing and mediation, which allow for the victim to reach a closure

It is agreed that for those offenders who commit heinous, horrendous, serious and dangerous crimes, custody may continue to be inevitable, where their rehabilitation should begin

Another clear benefit of the approach is the big boost to addressing prison over population and or overcrowding, which is far more practical ,sustaining and viable than the current justice for all reform strategy

I cry for my beloved country when the arguments against alternative to custodial sentencing in our country has not been, that it is unsustainable or against the fundamental rights of the citizenry or the cultural ethics of the society, but on the rather weak excuses of lack or absence of authority or indeed legislative framework

My question has always been whose responsibility is it to initiate the needed and or required legislation that can empower the courts to acknowledge, appreciate and value the needed change or initiate the required amendments to Ghana's criminal code and procedure which has remained the proverbial albatross to the commonsense approach to our criminal justice system

Undoubtedly, Ghana's criminal code and procedure has been fashioned to that of the British criminal justice legislative framework since independence

Interestingly, you and l are so much aware that whilst the British have time and again amended their criminal justice policies and procedures to reflect the exigencies of modernity and civility, Ghana has notoriously stucked to a criminal procedure code which has become much more of an anachronism and no longer fit for the purpose it was designed for

Throughout my several advocacy for penal reform in our country, l have never hidden the truth that Ghana can benefit from an approach and representation to the international Non-governmental organisation , the penal reform international for professional and technical guidance, support and or assistance in this direction.

In April 2010, as part of the recommendations that accompanied the draft sentencing guidelines of the sentencing review committee and presented to the then Attorney –General and Minister for Justice , l was unequivocal in my suggestions and advice for the urgent need to make an approach to the PRI.

I mentioned other countries even here on the African continent such as Zimbabwe, Uganda, Tanzania, Egypt, Morocco, Burkina Faso, Mali, Niger with the latest country being Liberia who are beneficiaries of this collaboration and partnership in placing non-custodial sentencing into the heart of their criminal justice reform

Revisiting my previous direct letter to you has been occasioned by the several strange sentencing by our courts which are finding headlines of some worry and concern from readers in the social network

On Monday 22 October, ghanawb.com carried a news item relating to the mechanic that was jailed 60 years for robbery by an Accra circuit court.

It is an understanding that the items realised in the robbery being 2 mobile phones valued as GHC 900.and an amount of GHC1,400. 00 were recovered. Two of the offender's accomplices pleaded not guilty and are reappearing on 25 october, while two others are reported missing

It drew this comment from a reader '' AH can someone tell me this is not true. I have read a lot of severe judgements of this kind for trivial issues in Ghana while the ministers ,and the prominent are left free moving about in the society. I am beginning to believe this is how Ghana judges and lawyers are trained in the law school, punishing the poor and defend the rich the rich and the prominent. Hmmm.''

Yet another puts his reaction this way ''Ghanaians are grateful for that, keep on the good work the few police officers who have conscience''

On Wednesday 24 October, the same social network carried this headline, ''2 Jailed for laptop theft'' by a court in the Ashanti region.

The two named as Edward Kofi Ayigwenam, 20 an artisan and Anthony Kudzo alias Barbo 21 a mechanic were sentenced by Justice William Boampong to 60 years respectively , having pleaded guilty to the offence of robbing a UST student of his dell laptop, modem ,pen drives, mobile phone to the value of GHC 1,800.00. A reader's comment read thus'' this is good job sanity must prevail in our society.''

My caution to these journalists however is that they must learn to distinguish theft from robbery in their reportage so as not to confuse their readers, for theft and robbery are not the same act, there is a simple difference between the two anti social behaviour.

Your ladyship may be wondering of what are the relevance of these two sentencing examples

Clearly in my assessment, it raises the fundamental question about the dangers and shortcomings of the lack or absence of sentencing guidelines for our judges and magistrates in our jurisdiction.

Sentencing guidelines are fundamental requirements that characterise most criminal justice systems and in particular the United Kingdom criminal justice system which constitutes the repository and main sources of our criminal code and procedure

I am unable to appreciate and understand how Ghana could be so zealous in fashioning its' criminal procedure code on that of the UK's criminal justice legislations yet failed to express the same level of zealousness to get things appropriate and indeed right

For one thing sentencing in the UK courts are determined by what is known and referred to as the Magistrates Guidelines For Sentencing, which provides for a holistic approach to sentencing and reflects uniformity and justice

Sentencing is never neither at the whims nor caprices of the sentencing court given there are a variety of ingredients that the court is to take into consideration in passing sentence for example the nature and the circumstances of the offence, the offence seriousness , the social history of the offender, the motivation for the offence, the offender's attitude to both the offence and the victim, the offenders' understanding of the impact of the offence on the victim, the offenders level of remorse and victim impact assessment by a trained and qualified probation officer

These provide the opportunity for the court to have an overview of the offender and positions it to impose relevant and appropriate sentence, one that ensures that the offender is confronted and challenged with his/her offending behaviour within a positive framework, address the offending behaviour within the context of appropriate supervision plan through offence focused work/therapy, behaviour modification counselling and support and any other assistance the offender may require to desist from further offending and or recidivism.

In this way public protection is guaranteed to a large extent, the scope of rehabilitating the offender and resettlement back into his/her community as a law abiding citizen becomes a realistic prospect.

My concern about these two examples of sentencing is that they failed to reflect the level of seriousness of the offences and in particular those other ingredients that assist in the determination of relevant and appropriate sentence(s)

These sentences just go to demonstrate what l am tempted to refer to as the lack of adequate knowledge and skills vital in the administration of punishment

An ongoing refresher courses as happens here in the UK and other jurisdictions for judges and magistrates cannot be seen to be a luxury but a necessary safeguard against the blatant misuse of sentencing powers and the play to the gallery

In democracies where justice is valued, injustice of any kind is considered as an affront to good governance and indeed a breach of peoples' basic fundamental human rights

Talking about rehabilitation brings to mind, the unfortunate but true statement made recently by the public relations officer of the Ghana Prisons Service to the effect that the service has no mandate at rehabilitating prisoners other than providing custody and meeting their welfare needs

Perhaps it may be prudent asking the PRO to define his understanding of welfare , if he really thinks rehabilitation does not constitute a welfare need.

In anycase, l will place the blame squarely at the feet of those ''Wisema'' who crafted the NRCD ( 46) 1972 and failed to positively mandate the Ghana Prisons' Service to provide for the rehabilitation of the prisoner just as undertaken by prisons in most if not all jurisdictions under the sun, moon and stars, most particularly in this 21st century

Nevertheless the Ghana Prisons Service in my candid opinion must face up to the responsibility of amending this good for nothing legislative provision , so that they are empowered to fulfil one of the basic fundamental objectives of the institution and stop burying their heads in the sun like the proverbial ostrich

Re –thinking penal reform as in direct compliance with the United Nations Standards Minimum Rules For Non-Custodial Sentencing and the Penal Reform International agenda for penal reform globally should and must be taken seriously in Ghana this time.

Your Excellency the ladyship, the Chief Justice,
I probably might have taken a reasonable amount of your time, but l sincerely do hope that you find the issues l have raised pertinent and professional , which are matters of serious national interest, deserving your personal attention as always.

The author can be contacted on [email protected]