Ghana has not abolished death sentence – African Court judge

On July 25, 2023, the Parliament of Ghana voted in favour of two bills to remove the death penalty for ordinary crimes: the Criminal Offences (Amendment) Bill, 2022, and the Armed Forces (Amendment) Bill, 2022. Ghana has not carried the death sentence since 1993.

However, not many are aware that the death sentence remains for some other offences.

A judge of the African Court has told Ghana Business News in an exclusive interview that the death sentence remains in the books for some other offences.

“The Death sentence has been abolished only in offences under the criminal and other offences Acts. Criminal offences are what have been abolished. But the one exercised by the military has not been abolished. Then the two offences under the constitution, treason and high treason; they have not been abolished. People think that they have been abolished. Yeah. And a lot of noise was made about it. No. It is only those under the criminal procedure Act,” he said.

He explained further that the two offences under the constitution have not been abolished. The military, the power of the court martial to impose death is still there. It has not been abolished. But the question that people ask is that if the court, the main court cannot impose death, why do we retain that of the military? He asked.

“That is the question. Because if the main court’s law is abolished, what about that of the military? Because that of the military, if they give judgment and you are dissatisfied, you appeal to the court martial court of appeal, which will be presided over by the same judges. So if the judges are not allowed to entertain those under the criminal act, then why do we allow the military to retain these? Because the decisions are not final. They come to the court martial court of appeal,” he said.

He noted that in Ghana, the law says that once a person is convicted for murder or treason or high treason, and the offences under the military Act, the Armed Forces Act 105, the death sentence must be imposed.

“But if you look at the treaty, I’m talking about the African Charter on Human and Peoples Rights. Article 4 of the Charter says that you shall not subject a person to inhuman and degrading treatment. Article 4 says that we must protect life. We must preserve life. And therefore, if you want to take away somebody’s life, then it must be taken away on condition that there is no other punishment,” he said.

So, and the Article 5 says that you cannot subject somebody to inhuman degrading treatment. And the death sentence, the African Court, in our interpretation of Article 4, what we are saying is that, if your law prescribes mandatory imposition of death sentence, then it is in violation. Give the judges the opportunity. The judges should hear the matter.

He noted that in Ghana, the law says that once a person is convicted for murder or treason or high treason, and the offences under the military Act, the Armed Forces Act 105, the death sentence must be imposed.

If the judges think that this case, what the person has done, he should be sentenced to life, he should be given a number of years. But if you look at Ghana, under the military and under the constitution, once a death sentence is imposed, we must sentence you to death by hanging. Which is at variance with the African Charter, which Ghana has ratified, and Ghana has deposited the declaration at the AU,” he said.

Justice Dennis Dominic Adjei, Ghana’s representative on the African Court that sits in Arusha, Tanzania told Ghana Business News in an interview in the Ethiopian capital, Addis Ababa recently that most countries have signed up that they want to abolish the death sentence because it is inhuman, and degrading.

Justice Adjei who spoke on a wide range of issues, including the composition of the African Court, its mandate and work, said it’s not entirely true that Ghana has abolished the death sentence.

“But in Ghana, people think that we have abolished the death sentence. It is not true,” Justice Adjei said.

“So where your constitution says one thing, let me use Ghana as an example. You know Ghana, we impose the death penalty. The ICCPR, the International Covenant on Civil and Political Rights, it does not abolish imposition of death penalty. But what it says is that it has opened a protocol, and that protocol countries that wish to abolish, they should come and sign,” he said.

He explained that most countries have signed that they want to abolish the death sentence because it is inhuman, and degrading.

Asked about the African Court, he said the Court started in 2008.

“The main aim of establishing the Court was to protect the mandate of the African Commission. You know, we have the African Commission, and they are the treaty body for the African Charter. They continue to be the treaty body for the African Charter. And they are a quasi-judicial body, so their decisions cannot be enforced by the courts, but they must be respected.

“But in Ghana, people think that we have abolished the death sentence. It is not true,” Justice Adjei said.

So the African Union deemed it necessary to come out with a court to complement its mandate. That was why the African Court came into force. And the protocol establishing the Court, Article 3 provides that the Court shall interpret and implement the African Charter. It did not end there – but as well as any human rights treaty,” he said.

He said any country which is a member of the protocol and has ratified the convention is subject to the Court.

Giving an example he said: “If you take the International Covenant on Civil and Political Rights, almost all the countries in Africa have ratified it. And therefore, if somebody brings a country, that, that country has violated a provision under that treaty, we have the right to exercise even though it is not the African Charter. Then we have the Universal Declaration of Human Rights, which was established as a mere declaration to guide. It was a soft law to guide, but did not have a binding effect. But we of the African Court, we have held that it has a binding effect because it has been in the system for years, and countries have been quoting it and it has matured to become customary international law,” he said.

Justice Adjei noted further that if a country varies any of the principles enshrined in the universal declaration and it is brought before the African Court, it is assumed to entertain the case.

The Court has 11 judges

He noted that the law states that the judges shall be elected among jurists and academics of high repute, integrity, and knowledgeable in human rights.

“And in practice, what the AU has done is that they’ve partitioned the continent into five. We have the West Africa, East Africa, North Africa, Central Africa and Southern Africa, and each of them nominates a male and a female judge. So we have 10 males, 10 females. For example, the female seat in West Africa is in Nigeria. The female seat in North Africa is in Algeria. The female seat in East Africa is in Tanzania. The female seat in Southern Africa is in Malawi. And the female seat in Central Africa is in Cameroon,” he said.

He added that the male seat for West Africa is in Mali, in North Africa it is in Tunisia, in East Africa it is in Uganda and in Southern Africa it is in South Africa, while Congo Brazzaville holds the Central Africa male seat.

There are five men and five women. He explained that there is a floating seat which can be contested for, by any judge who meets the criteria and has published enough work.

“So if you look at it, I mentioned that the male seat is in Mali. The one in West Africa, and I am occupying the floating seat to make the number 11. So because of me, Ghana, West Africa, we are three instead of the two. So Ghana, Nigeria and Mali. Yes. And because of me, we have gender majority,” he said.

Justice Adjei said before he took the seat, the judge occupying it was from Rwanda – a female.

There are currently five men, and six women, and three judges from East Africa.

“The law is that you cannot have two judges from one country,” he added.

Justice Adjei explained further that individuals cannot however, come straight to the court.

Ratification of AU Court Declaration

Out of the 55 countries in Africa, 34 have ratified the African Court Declaration. 21 countries are yet to ratify the declaration.

What is holding them back? He was asked.

“You know, it is accountability. Once you sign, you submit yourself to the jurisdiction of the Court. And if you violate any human rights instruments, and it is brought before the Court, a decision will be made against you. And they avoid that. That is why only 34 countries have ratified it,” he said.

He pointed out that the law is that if a country ratifies the declaration, that means either a country that has also ratified or the AU Commission may bring that country before the Court in case it is believed to have violated any convention in the domain of the Court.

“But if you are a country and you want your people to benefit from the Court, then you deposit a declaration at the Court, and that is like you are submitting yourself to the Court. That individuals of my country can bring an action against me before the Court,” he said.

Justice Adjei explained further that individuals cannot however, come straight to the court.

“In that sense, when we say individuals, it doesn’t mean that the person just wakes up in the morning and walks to the Court. No. We have a law, and the law says that you must exhaust the local remedy. So, if a person is seeking the African Court and the person is a Ghanaian you must go through your Supreme Court. Maybe you start from the High Court, Court of Appeals, Supreme Court, or where it is a case that you can go to the Supreme Court straight, then you must go to the Supreme Court first. And if it is refused, then you come to the African Court to say that the court failed to observe your fundamental human rights. So the name of the Court is human and peoples’ court,” he said.

He indicated that the Court handles both human and peoples’ rights.

“Human means individuals and peoples’ is collective. So we have jurisdiction in both cases, both human and peoples’ rights. And when you come before the Court, it is not against your country’s court, because your country’s court is not a signatory to the treaty,” he added.

He clarified that it is only countries that are signatories to the treaties that can be brought before the Court.

“That is why all the respondents before the Court are countries. Because if you are not a country that has ratified the declaration, you are incompetent before us and therefore we cannot see you. And you first have to exhaust your local remedy before you come to the African Court and when you are coming to the African Court you must always have in mind that there is a human rights treaty that you are saying that the apex court in your country, has failed to take into account, and therefore, you want the African Court to take that into account,” he said.

According to Justice Adjei, when cases come before the African Court, the Court first and foremost looks at the facts, and then it determines whether it has jurisdiction.

“When we have jurisdiction, then we look at admissibility. Admissibility, we are going to examine whether you have exhausted the local remedies before coming. So if you did not exhaust the local remedies, and you could not demonstrate why you failed to exhaust that to the satisfaction of the Court, it will be declared inadmissible, and you have to go back. What we do is that we use the treaty and measure it against the decision of the court,” he said.

Four countries have withdrawn from the Court

Of the 34 countries that have ratified the Declaration, 12 countries deposited and eight are still retaining, while four have withdrawn.The four countries are, Tanzania, Rwanda, Cote d’Ivoire, and Benin.

Their reasons?

These four countries, according to Justice Adjei, withdrew from the Court because they lost all the cases that were brought against them.

“They lost about 80 per cent of them. You know – and they were not comfortable. Therefore, they said that, yes, we are members of the court, but we will not allow our individuals to seize the court,” he said.

Asked if the Ghanaian judicial system is aware that its stance on the death penalty is at variance with the AU Charter, he answered: “No. I don’t think they are aware. Even though I’m a judge in Ghana too. But I don’t think they are aware because still, we are not pushing for the outright abolition of the death sentence, because whenever such a case comes before the African Court, we are going to find violation against them. But unfortunately, I will not sit because the law is that in a case against your country, the judge does not sit. So any case against Ghana, I will not sit but all the 10 judges will sit apart from me,” he said.

But the major problem that we sometimes have is non-compliance. You will order the country, and they will not comply.

Success rate of the African Court

Asked about the success of the Court, he said: “When you talk about the success rate of the Court, what I will say is that, yes, we have enough cases. We’ve been delivering judgement every quarter. We are resuming soon, and we are going to deliver about eight judgments. Every quarter, we deliver between six and 10 judgments.

That means we have a lot of work to do. But the major problem that we sometimes have is non-compliance. You will order the country, and they will not comply.”

He indicated that however, whenever a country refuses to comply with the Court’s order, the case is referred to the Council of Ministers at the AU that has the power to determine such matters.

“The protocol says that when we deliver judgments, we must inform the AU. The Council of Ministers is the body to ensure and to monitor that the judgment is complied with,” he said.

Burkina Faso complies with all decisions

Citing a good example, Justice Adjei said Burkina Faso has complied with all the decisions made against it.

“When we found out that their laws on criminal libel, were at variance with the Charter. They immediately amended them. They repealed them and came out with laws that were acceptable. Rwanda even complied with some of the decisions, before it withdrew its declaration,” he said.

By Emmanuel K Dogbevi
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