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29.08.2014 Feature Article

Rethinking Ghana’s Criminal Justice System: Setting The Agenda For A Paradigm Shift In Our Criminal Justice Delivery

Rethinking Ghana’s Criminal Justice System: Setting The Agenda For  A Paradigm Shift  In Our Criminal Justice Delivery
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The rather urgent need for a rethink of our criminal justice system can no longer remain either on the drawing board or continue to be a talk show, given the extreme consequences of the current sentencing policy which has failed to go beyond the fines and custodial disposals or thresholds.

Several factors may indeed account for the high rate of the over- crowding in our prison estates, nevertheless the most significant of it all is the fact that our sentencing courts have not been provided with any means of alternative to imprisonment (except with juvenile justice delivery system) even in the context of minor offences or what is professionally referred to as misdemeanor. Instances of imposing fines on offenders are somewhat rendered meaningless, due to non-compliance which may be due to the offender's lack of financial capacity to respond positively to the court order and thus ties the court's hands to the ultimate, the only available option- custodial sentence.

This clear evidence may explain how and why such offenders, sent to prison become unwilling associates and or companions of the sophisticated, entrenched, dangerous and die-hard offenders.

Although it is acceptable that for those who commit offences or crimes within their communities should have to be punished, the modern trend is for punishment to go beyond the retribution and 'punishment fits the crime' philosophy, as punishment is now to be seen to have the capacity to prevent re-offending, protect the public and offer a meaningful and practical scope for the rehabilitation of the offender- 'the rehabilitation ethos', promote reparation towards the victim/ community and offering a framework for the victim to attain closure. Indeed, punishment should offer the framework which although imposes some degree of restriction on the liberty of the offender, should similarly promote what has come to be known and referred to as the 3 R's ; the offender taking responsibility for his/her anti social behaviour, rehabilitation of the offender and reparation to either the victim or the community.

It is this paradigm shift initiative that should inform our penal policy, a policy direction that acknowledges and promotes' alternative to custody 'policy initiatives and programmes of intervention, to reflect the UN Standard Minimum Rules for Non-Custodial Measures and Penal Reform International Conference's objectives adopted at its' conference, held between 13 and 27 April, 1999 . The Lord Chancellor of England and Wales, Lord Phillips of Worth Matravers, makes this point succinctly when contributing to a debate on 'Alternative to Custody:

The case for community sentencing, submitted amongst others '' when sentencing those who commit minor offences, the primary objective must be rehabilitation, and that sentencing must have the purpose of, making of reparation by offenders to persons affected by their offence(s), punishment of offenders, reduction of crime, reform of the offender and public protection'' It is in pursuant of this agenda that in some other jurisdictions, such as the UK, USA, Australia, Norway, Canada, Zimbabwe, Uganda, Malawi, Mali, Tanzania, Burkina Faso and Egypt, community sentencing as a mechanism of 'alternative to custody' has become the main feature of their criminal justice system, and it's worth mentioning that Liberia is the latest to be moving in this penal policy direction having solicited the assistance and support from the Penal Reform International (PRI) an International non –governmental organization based in the United Kingdom to realize this goal. THE STRATEGIC APPROACH TO PRACTICE:

It is my considered opinion that the time has come for all practitioners or call them stake-holders within the criminal justice system, voluntary organizations and those concerned with penal policy to embrace a much needed credible alternate vision, one which offers practically best chance of driving a rehabilitative perspective of punishment to the centre of criminal justice administration and service delivery in our country, at much less of a financial, social and ethical cost.

The central focus for a rehabilitative philosophy is the provision of high quality, rigorous, robust and properly resourced community-based programmes of intervention, which have the capacity in providing the police, prosecutors, courts and the prisons with effective options for responding to the needs of offenders, in their quest for discharging their constitutional mandate- promoting and safeguarding public protection and public safety.

There is clear research evidence, demonstrated by practice in those jurisdictions where community sentences are the bedrock of criminal justice administration and service delivery, that if faith is placed in community sentencing, then the reduction in the prison population will also allow for more productive work to be undertaken in areas such as offence focused and cognitive behaviour modification therapeutic work, general-education, skills/trade training for those individuals that must be held in custodial regimes.

The evidence is that, the alternative of an ever rising prison numbers is simply unsustainable and will do nothing to promote community safety. Best practice approach is that, well structured community programmes of intervention, will undoubtedly raise community protection, bringing down the rate of re-offending and repay the damage(s) done by crime in a way which prison sentences cannot and would not.

This strategy should form a key component of our comprehensive approach to offender management and rehabilitation; empower people in conflict with the law to make amends for the harm they have caused, to address their personal, social and health challenges (drugs/alcohol dependency) which may lie behind their offending, develop their determination and appropriate skills they may require to lead law-abiding lifestyles.

The strategy is that positive steps need to be adopted now, to develop the relevant and appropriate penal policy that promotes and ensures that community penalties become integral elements of our criminal justice system, and that they are used as far as possible to displace prison sentences, as part of a broader and pragmatic strategy of using prison much more sparingly than has been the practice to date in our country. In pursuing this agenda, devising urgently, a sentencing guideline and indeed the legislative amendment of the criminal procedure code cannot be over-emphasized. The justice for all programme's initiative, which rightly identified a sentence review committee as one of its thematic spheres of intervention although may be said to have been a positive measure, it is regrettable to observe here that the first revised draft of a proposed sentencing guidelines, adopted by a sentencing review committee at Koforidua in December, 2009 and submitted to the ministry of justice and attorney-general's department sometime in April 2010 by this author, has still remained on the shelves gathering dust to the best of my knowledge and understanding.

The expectation would have been for a sentencing - working team, to be judiciary driven and composed with stakeholder institutions within the criminal justice system, to have been set up with the clear mandate of discussing this first revised draft guidelines alongside with that l am given to understand was proposed by the commission for law reforms, streamline these documents into a final draft sentencing guidelines, for action by a National Sentencing Council/Committee, that would need setting up and with a mandate for public consultations.

Incidentally however, there might be a ray of sunshine for this first draft sentencing guidelines, given the current deputy attorney general had delivered a paper on the subject of prison congestion, the bail system and remand management within the criminal justice system and called for a reform at the justice for all reform seminar at Akosombo sometime in December 2009, only to reiterate this call during his recent vetting for his current post National Sentencing Council/Committee:

Such a national sentencing council/ committee should also be mandated to exercise the overall responsibility to publish a final definitive sentencing guideline. This should promote greater consistency in sentencing, whilst contributing to maintain the independence of the judiciary and increasing public understanding of sentencing. An effort that would be a pragmatic way forward, in the re-think of Ghana's criminal justice service delivery system in promoting the fundamental human rights philosophy and meeting international standards of best practice, thus giving a pragmatic and credible meaning to the concept of prison as the framework of rehabilitating, reforming, reintegrating and resettling the offender back into his/ her community as a useful citizen ready to make those positive contributions towards national development and nation building

Amending the criminal procedure code:
To date, the criminal laws of our country and it's procedure code presents as the proverbial albatross at the neck of a reform of our penal system. Undoubtedly, these would require the relevant and appropriate amendments relating to the sentencing of offenders, with the aim to provide a clearer and more flexible sentencing framework, setting out in unambiguous terms, the five traditional purposes of sentencing as: The punishment of the offender, The reduction of crime (including its reduction by deterrence ), The reform and rehabilitation of the offender, Public protection, and The making of reparation by the offender to the victim.

The author a social care, offender management and rehabilitation consultant, operations director OMRO, a Ghanaian nongovernmental organization, is also an ardent penal reform advocate. For further details contact [email protected]/ 024 841 6287

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