15 Aug Edmund Addo Vs The Republic [No. J3/04/2022]
“…notwithstanding the repeal of section 136 of Act 772 under which the accused is being prosecuted, section 34(1)(d) and (e) of the Interpretation Act, 2008, Act 792 had saved section 136 of the Electronic Transactions Act, 2008, Act 772…”
The accused person met the victim, then a 14-year-old student in secondary school at a party. After this, the accused had a series of sexual encounters with the victim and recorded the acts despite the victim’s protests.
The accused requested for pornographic images of the victim who refused the request. The accused threatened to publish nude images of the victim in his possession. Subsequently, the accused person allegedly published pornographic images and videos of the victim.
The accused was subsequently arrested and charged with three counts of child pornography contrary to Section 136 (b) of the Electronic Transactions Act, 2008 (Act 772) (“ETA”). In the course of the trial, the Cybersecurity Act, 2020 (Act 1038) (“CA”) was passed. Section 98 of CA repealed Section 136 of ETA which provided for the offences he had been charged with.
The accused person applied to the High Court to strike out the charges of child pornography under Section 136 (b) of ETA.
The key issue was whether the repeal of the offence-creating section resulted in an automatic discharge of the accused person. The trial court made reference to Section 34 (1)(d) &(e) of the Interpretation Act, 2009 (Act 792) as reproduced below:
“(1) Where an enactment repeals or revokes an enactment, the repeal or revocation shall not, except as in this section otherwise provided: …
(d) affect an offence committed against the enactment that is repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect of that offence; or
(e) affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege, an obligation, a liability, a penalty, a forfeiture or a punishment;
and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”
The Court held that the Interpretation Act effectively provides for continued proceedings in such an instance where the relevant law is repealed. On appeal, the Court of Appeal upheld the decision of the High Court. Aggrieved, the accused person further appealed to the Supreme Court.
The Apex Court reiterated that Section 34 (1) (d) & (e) of IA, effectively saved Section 136 (b) of the ETA under which the accused person was being charged. The trial of the accused pursuant to charges under section 136 of ETA was therefore valid.
Consequently, the Supreme Court ordered that the trial of the accused person should duly proceed.
Insight: Where a person commits an offence against an enactment that is subsequently repealed in the course of a trial, Section 34 (1) (d) of the Interpretation Act saves the offence-creating law and the trial may proceed as though the law were not repealed.
Summer Legal Intern 2023