07 Nov The Criminal Justice System of Ghana: Is the focus on Reformation or Mere Retribution
Punishment is one of the fundamental features of a criminal justice system that differentiates it from civil actions in all jurisdictions in the world. The direct consequence of being convicted of a criminal offence is the punishment which may be given in the form of imprisonment, fine, or both.
Sentencing is guided by law. Even though judges have discretion where the law only provides a minimum or maximum ceiling for the sentence, the court has pronounced the parameters within which such discretion must be exercised. [1]
Problem Statement
In Ghana, the law places some restrictions on persons who have once been convicted of criminal offences in Ghana. Article 94 of the 1992 Constitution disqualifies a person from becoming a member of parliament for a tall list of convictions: high crime under the Constitution, high treason, treason or an offence involving the security of the State, fraud, dishonesty or moral turpitude, for any other offence punishable by death or by sentence of not less than ten years; or for an offence relating to, or connected with an election under a law in force in Ghana at any time[2].
As a condition precedent, a person is required to declare his or her criminal record before an appointment as a director of a company. As such, a person who has been charged or convicted of any criminal offence involving dishonesty or fraud within five (5) years before an application for incorporation of a company, or his or her appointment as a director is disqualified. [3] In fact, such persons can be restrained from directly or indirectly managing the affairs of any company by the court for a specified period. [4]
Aside from these statutory restrictions, many companies and professional bodies require the criminal record of job seekers and would-be professionals such that people lose out on opportunities based on criminal offences for which they have long-served sentences. Indeed, people with criminal records face serious employment barriers, regardless of their qualifications, which may exceed those faced by any other disadvantaged group[5].
Given this, it appears that once you are convicted and sentenced in Ghana, your punishment knows no bounds. Beyond the social stigma attached to a conviction, an ex-convict would have to live with a potentially, perpetual punishment of being restricted from taking up opportunities.
Should a case be made therefore for the expungement of the criminal record for certain crimes? Some may argue not, whilst others subscribe to the view that everyone deserves a second chance.
What is the Expungement of Criminal Records?
In law, “expungement” is the process by which a record of criminal conviction is destroyed or sealed from the public record[6]. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant’s criminal record as well as, ideally, from the public record.
In recognition of the reformative aim of punishment, some jurisdictions have made provisions for expungement under certain circumstances.
In Victoria, Australia, certain circumstances render a conviction as ‘spent’ and the effect of such status is that such a conviction shall be removed from official records and be prevented from disclosure after a fixed period. [8] The court may, for example, make a spent conviction order on the basis that the sentence was for a period of at least 30 months, and a minimum of 10 years for adults or 5 years for juvenile offenders have elapsed since the conviction, and the applicant has not re-offended during the ten (10) or five (5) years waiting period.
The court takes into consideration, among other circumstances, the nature, circumstances and seriousness of the offence to which the application relates, the impact on any victim of the offence to which the application relates; and the personal circumstances of the applicant. A cautionary note is that such an example is a qualified window, and does not apply to all convictions.
It is also important to state here that certain convictions can never be rendered as spent. These include a conviction for which a sentence of imprisonment for a period of six (6) months or more has been imposed; a conviction for a sexual offence. [9]
In Jamaica, both adult and juvenile offenders are eligible to have their convictions expunged.
However, persons who have committed offences like murder, attempting to murder, burglary, rape, treason, trafficking, incest, offences involving firearms, and kidnapping, amongst others do not qualify to have their records expunged. [10]
To qualify for expungement, two essential conditions must be satisfied viz, the offence in question must attract a non-custodial sentence or sentence of imprisonment not exceeding five years, and the person in question must not have had any other convictions during a specified period referred to as the “rehabilitation period”.
Some states in the United States of America such as Louisiana and Kansas have a semblance of these features in their criminal justice system. Kansas State recognizes and allows the expungement of certain convictions upon petition to the court for various crimes except for serious violent and sexual offences following a waiting period of three to five years after completion of sentence. [11]
A case for Expungement in Ghana
Expungement has limited applicability in the criminal justice system of Ghana. In its strictest sense, it only applies to juvenile offenders[12] within a very limited scope. The statutory provisions on expungement in Ghana are found in the Juvenile Justice Act, 2003 (Act 653).
The law provides that an application may be made by a juvenile offender, probation officer or a close relative of a juvenile for the record of conviction and order imposed on the juvenile to be expunged. [13] The following requirements are to be satisfied before an order may be made by the Juvenile Court:
(a) the application must be made at least five years after the juvenile offender completes a non-residential sentence made by the court and the court must be satisfied that the juvenile offender has not been convicted of an offence during the five-year period.
(b) Where the juvenile was committed to a correctional centre by a residential order from Court, the application may be made, at least ten years after the order has been completed by the juvenile offender and the court must be satisfied that the juvenile offender has not been convicted of an offence during those ten years.
In terms of the record of a formal caution of a juvenile kept in the register at the Police Station, a person needs not make an application for its expungement. Such records are required to be expunged after a period of five years from the date on which the caution was entered[14].
However, the law excludes records of serious offences from the list of offences that can be expunged. Such serious offences unsurprisingly, include murder, rape, defilement, indecent assault involving unlawful harm, robbery with aggravated circumstances, drug offences and offences related to firearms.
Jeremy Bentham espoused in his utilitarian theory that laws must ensure the greatest good for the greatest number of people. Thus, whatever the law-making effort engaged in; it must produce useful results that would ensure the happiness of the greatest number. Based on this theory, it is the considered opinion of the writer that the law must allow ex-convicts to restart life with a clean slate. If punishment must be a means to an end, then it would not be reasonable that ex-convicts regardless of how reformed their incarceration makes them, should be shackled with the ghosts of their past.
It is binding on the court therefore to ensure that the punishment is commensurate with the offence committed. [15] This principle arguably falls flat on the face where after the full service of punishment and a considerable period thereafter, a person’s criminal record can still operate to prevent them from taking some opportunities.
Mensa-Bonsu[16] explained this concept further, stating that “Adherents of the utilitarian theories also believe that with punishment should come to the possibility of first showing the individual the error in his or her ways and bringing about a positive change in the life of the individual so that a criminal lifestyle would be forsworn in favour of a more decent one.”
Should there not be a point that a person can be deemed to have changed positively?
Prof. Mensa-Bonsu[17] observed that the fact that punishment per se has its intrinsic worth does not mean that it is imposed mindlessly, without consideration of the ends its imposition on offending individuals is intended to achieve.
The respected Justice of the Supreme Court, Ansah JSC explained a five-fold purpose for which punishment seeks to achieve, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country.[18]
It is useful to ascertain at what point a convicted person would be deemed to have finished serving a sentence and at what point such punishment would be deemed to have fulfilled the purpose for which it was imposed.
The court made a case for the deterrence objective of punishment in Amaniampong v the Republic. [19] The Supreme Court stated that “punishment is justifiable as a deterrent not only to the criminal himself but also, and even more importantly, to those who may have a similar criminal propensity. A way must be found to protect society from the activities of these criminals and this way is confinement for a considerable length of time.”
A careful interpretation of this judgment suggests that the punishment for incarceration lies in the confinement. As such, by confining persons convicted of criminal offences, three purposes are achieved:
⦁ The perpetrator is served his just desserts;
⦁ Society rid itself of the activity of that criminal for the period; and
⦁ Those with similar criminal propensity are deterred from indulging in such criminal acts.
In essence, it is safe to conclude that whichever purpose a specific punishment seeks to serve, the purpose must be achieved within the period of incarceration. Thus, the punishment must come to an end when the sentence is fully served.
Given the above, a person against whom a past criminal record adversely operates even after fully serving the prescribed punishment would be unfairly treated. It would operate as though punishment for a criminal offence is designed to operate in perpetuity.
There is a clarion call for the expansion of the scope of expungement of criminal records in the criminal justice system of Ghana. The policy alternative in this regard is that there must be a balance between the aim of protecting the state and the aim of reforming to reintegrate ex-convicts into society.
It must be stated in conclusion that the clarion call described is not for a blanket expungement of all criminal records but rather, as a starting point, thought must be given to all misdemeanours and offences which attract less than a period of 5 years of imprisonment, which can be amenable to expungement after a specified period. The proposition is worth a lingering thought, I will say.
[1] Ghana Sentencing Guidelines
[2] Article 94 (2) (c), 1992 Constitution
[3] Section 172, Companies Act 2019
[4] Section 177, Companies Act 2019
[5] Harry J. Holzer et al., Perceived Criminality, Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & ECON. 451 (2006); Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937 (2003).
[6] Black’s Law Dictionary
[7] Republic vs. Abrokwa [1989-90] 2 GLR 385
[8] Section 20, Spent Convictions Act 2021 (No. 13 of 2021)
[9] Ibid
[10] Criminal Records (Rehabilitation of Offenders) Act, 1988
[11] Kansas Statutes Annotated 21-6614
[12] Section 1, Juvenile Justice Act, 2003 (Act 653): a person under eighteen years who conflicts with the law
[13] Section 37, Act 653
[14] Section 12(10), Act 653
[15] Tetteh v The Republic [2001-2002] 1 GLR 200
[16] Supra at no. 3
[17] Professor Mensa-Bonsu, Criminal Law, Series – The General Part of Criminal Law Volume I
[18] Kamil v The Republic, Criminal Appeal No. J3/3/2009
[19] [Criminal Appeal J3/10/2013) [2014] GHASC 163 (28 May 2014)].