Rethinking Crime And Punishment In Ghana: Is Our Criminal Procedure Code Not An Albatross And An Anachronism. ?

Modern criminological theory and practical professional understanding of punishment is that of a distinct departure from retributive punishment or the 'punishment fits the crime' philosophy' to the focus on rehabilitative ethos of punishment, one that provides the framework to adequately confront and challenge offenders with their anti social behaviour and address their several identified criminogenic needs.

Clearly this has been the most credible and prudent approach of most criminal justice systems and many democratic jurisdictions globally to crime and punishment particularly that of the British criminal justice system, which has been the bedrock or the pivot around which Ghana's criminal procedure code and its' criminal justice system essentially evolved.

Whilst the British criminal justice system acknowledges, appreciates, respects and values the dynamic features and character of its body politic and regularly amends their criminal justice legislations as it may have been relevant and appropriate in meeting the demands and needs of the British people as determined by modern criminology, Ghana's policy technocrats and stakeholder institutions have continuously and blatantly refused and resisted credible professional counsel to amend it's criminal procedure code .

Indeed the British criminal justice system is also characterised with a national sentencing guidelines for the courts, which is a distinct sentencing framework and procedures that assist, support and guide their courts in the determination of sentencing options in a manner that reflects the traditionally recognised objectives of sentencing- punishment ,reparation ,public protection ,deterrence, rehabilitation and reflecting public opinion , which any court worthy of its integrity and value must try to achieve.

Additionally, the British criminal justice system has a framework that provides for sentencing options in line with the UN Minimum Standards Measures for Non-Custodial Sentences for minor offences with the emphasis on alternatives to custodial sentences.

Undoubtedly the sentencing options do not focus on custody and financial penalties, but wisely and prudently include community sentences of which community service or community pay-back, community reparation, compensation orders, offender-victim mediation conferencing and restorative justice form important features of criminal justice delivery.

Significantly, this approach to crime and punishment serves as a credible and robust control mechanism and management of the criminal justice system in a manner that keeps some degree of monitoring and supervision of prison overcrowding , given the strict professional adherence to sentencing guidelines, procedures and protocols . For one thing the opportunity exists to limit custodial sentencing to only those dangerous, recalcitrant, entrenched offenders and those who commit serious and heinous crimes and posing realistic grave and significant risks and danger to public safety. It is this mechanism that ensures that minor offenders do not slip into their custodial estates or regimes only to swell up their prison population and risk their rehabilitation.

Invariably, their alternative to custodial mechanism provides for community sentences involving referral , action plan , community reparation , supervision and community punishment and rehabilitation orders for juvenile offenders ,except for those above 16 years who may be made subject to a probation order by the sentencing court, rather than a supervision order, given their seemingly age of maturity as sentences.

As regards adult offenders their criminal justice legislation provides for the alternative to custodial sentencing options via compensation, suspended sentence, probation, community service or community pay-back and community punishment and rehabilitation orders.

These orders are strictly enforced within guidance, guidelines, procedures, protocols and national standards for the supervision of offenders in the community to ensure strict compliance.

Shamefully however, the same cannot be said of penal policy makers and stakeholders of the Ghanaian criminal justice system who have woefully failed the citizens and have blatantly refused to acknowledge and value the dynamic character of our society so as to amend its criminal procedure code in a way to reflect the changing needs of the body politic.

In Ghana we have ignorantly developed a rather insensitive and unprofessional attitudes towards responding appropriately to the modern criminological trends on crime and punishment in as much as positive responses to the United Nations Minimum Standards Measures for non custodial sentences for minor offences (1999) and the penal reform international, an international non -governmental organisations ( PRI) appeal for penal reform globally.

It is and has been my professional assessment that the rather narrow minded and seemingly naive approach to criminal justice delivery in this country, still focusing on retributive justice as the only mechanism of punishment as determined by our existing criminal procedure code as evidenced by the twin sentencing options of custodial and financial penalties is superfluous , archaic and anachronistic, accounting much more largely for the over- crowding of our penal estates. Especially within the context of our harsh economic lifestyles, many offenders made subject to fines who may genuinely lack the financial capabilities of meeting these fines will definitely continue to end up in the prisons for non compliance to the financial penalties and add up to the already over populated prisons numbers.

A credible and pragmatic agenda should be the evidence-based, effective and best practice approach to sentencing as exemplified by the British criminal justice system, with its characteristic national sentencing guidelines for the courts as in line with the dictates of modern criminological thinking on punishment. Other such jurisdictions are the USA, Australia, Canada, Uganda, Zimbabwe, Tanzania, Malawi, Bourkina Faso, Mali, Niger and recently Liberia which all demonstrate or show case the most suitable professional responses and best practice approaches to criminal and anti social behaviour of those who fail foul of their laws in this 21st century.

Indeed, it is within this context that with a personal knowledge, l dare question and challenge the rationale and the wisdom of throwing the draft sentencing guidelines developed by the sentencing review committee at its workshop in Koforidua, sponsored by a donor agency , presented to the attorney generals' department and the ministry of justice in 2010 and what was provided by the Ghana law reform commission into the proverbial 'dust-bin of history'.

A professional and best practice approach would have been to set up a national technical team to be judiciary led , preferably a seasoned supreme court judge , and composed of professionals with the requisite skills, knowledge , expertise and the experience from the sentencing review committee and the law reform commission with the mandate of synchronising and abridging these two documents, finalise the draft, sensitize public opinion or public participation and come out with a complete and final sentencing guidelines for our courts, which as in other jurisdictions can empower the courts to deliver appropriate sentencing in ensuring and promoting consistency, uniformity, anti discriminatory and equal opportunity practice policies and procedures.

Hopefully, the sector minister may serve the interest of Ghanaians best should he consider the agenda of the amendment of the outmoded criminal procedure code and sentencing guidelines for our courts one of its priorities. In this way real justice is not only delivered, but opportunity presents to address the criminogenic needs of offenders, promote their rehabilitation, reintegration and resettlement in a manner that cannot impact negatively on an already overcrowded prison establishments.

Clearly Ghana's criminal procedure code is no longer fit for purpose at this time, if punishment should mean the rehabilitation, reintegration and the resettlement of the offender back into community life and empower the offender to make those meaningful and positive contributions to the national agenda of development. Thus the advocacy and the clarion call for an urgent amendment of our criminal procedure code with a devised corresponding national sentencing guidelines for our courts is rather long overdue and can no longer be kept at the back burner, whilst our prisons continue to pose significant and tremendous risks and challenges to the fundamental human rights of prisoners who are human beings in the first instance.