Ghana has not abolished demise sentence – African Court decide

On July 25, 2023, the Parliament of Ghana voted in favour of two payments to take away the demise penalty for bizarre crimes: the Criminal Offences (Amendment) Bill, 2022, and the Armed Forces (Amendment) Bill, 2022. Ghana has not carried the demise sentence since 1993.

However, not many are conscious that the demise sentence stays for another offences.

A decide of the African Court has instructed Ghana Business News in an unique interview that the demise sentence stays within the books for another 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 mentioned.

He defined additional that the 2 offences beneath the structure haven’t been abolished. The army, the facility of the courtroom martial to impose demise continues to be there. It has not been abolished. But the query that individuals ask is that if the courtroom, the principle courtroom can not impose demise, why will we retain that of the army? He requested.

“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 mentioned.

He famous that in Ghana, the regulation says that when an individual is convicted for homicide or treason or excessive treason, and the offences beneath the army Act, the Armed Forces Act 105, the demise sentence have to 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 mentioned.

So, and the Article 5 says that you simply can not topic someone to inhuman degrading remedy. And the demise sentence, the African Court, in our interpretation of Article 4, what we’re saying is that, in case your regulation prescribes obligatory imposition of demise sentence, then it’s in violation. Give the judges the chance. The judges ought to hear the matter.

He famous that in Ghana, the regulation says that when an individual is convicted for homicide or treason or excessive treason, and the offences beneath the army Act, the Armed Forces Act 105, the demise sentence have to be imposed.

If the judges assume that this case, what the particular person has performed, he must be sentenced to life, he must be given various years. But if you happen to take a look at Ghana, beneath the army and beneath the structure, as soon as a demise sentence is imposed, we should sentence you to demise by hanging. Which is at variance with the African Charter, which Ghana has ratified, and Ghana has deposited the declaration on the AU,” he mentioned.

Justice Dennis Dominic Adjei, Ghana’s consultant on the African Court that sits in Arusha, Tanzania instructed Ghana Business News in an interview within the Ethiopian capital, Addis Ababa lately that almost all international locations have signed up that they wish to abolish the demise sentence as a result of it’s inhuman, and degrading.

 

Justice Adjei who spoke on a variety of points, together with the composition of the African Court, its mandate and work, mentioned it’s not completely true that Ghana has abolished the demise sentence.

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

“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 mentioned.

He defined that almost all international locations have signed that they wish to abolish the demise sentence as a result of it’s inhuman, and degrading.

Asked concerning the African Court, he mentioned the Court began in 2008.

“The important intention of building the Court was to guard the mandate of the African Commission. You know, we have now the African Commission, and they’re the treaty physique for the African Charter. They proceed to be the treaty physique for the African Charter. And they’re a quasi-judicial physique, so their choices can’t be enforced by the courts, however they have to be revered.

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

So the African Union deemed it vital to return out with a courtroom to enrich its mandate. That was why the African Court got here into drive. And the protocol establishing the Court, Article 3 offers that the Court shall interpret and implement the African Charter. It didn’t finish there – however in addition to any human rights treaty,” he mentioned.

He mentioned any nation which is a member of the protocol and has ratified the conference is topic to the Court.

Giving an instance he mentioned: “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 mentioned.

Justice Adjei famous additional that if a rustic varies any of the rules enshrined within the common declaration and it’s introduced earlier than the African Court, it’s assumed to entertain the case.

The Court has 11 judges

He famous that the regulation states that the judges shall be elected amongst jurists and lecturers of excessive reputation, integrity, and educated 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 mentioned.

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

There are 5 males and 5 girls. He defined that there’s a floating seat which could be contested for, by any decide who meets the factors and has printed sufficient 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 mentioned.

Justice Adjei mentioned earlier than he took the seat, the decide occupying it was from Rwanda – a feminine.

There are at present 5 males, and 6 girls, and three judges from East Africa.

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

Justice Adjei defined additional that people can not nevertheless, come straight to the courtroom.

Ratification of AU Court Declaration

Out of the 55 international locations in Africa, 34 have ratified the African Court Declaration. 21 international locations are but to ratify the declaration.

What is holding them again? He was requested.

“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 mentioned.

He identified that the regulation is that if a rustic ratifies the declaration, meaning both a rustic that has additionally ratified or the AU Commission could carry that nation earlier than the Court in case it’s believed to have violated any conference within the area 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 mentioned.

Justice Adjei defined additional that people can not nevertheless, come straight to the courtroom.

“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 mentioned.

He indicated that the Court handles each 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 just international locations which can be signatories to the treaties that may be introduced earlier than 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 mentioned.

According to Justice Adjei, when circumstances come earlier than the African Court, the Court at first seems to be on the information, after which it determines whether or not 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 mentioned.

Four international locations have withdrawn from the Court

Of the 34 international locations which have ratified the Declaration, 12 international locations deposited and eight are nonetheless retaining, whereas 4 have withdrawn.The 4 international locations are, Tanzania, Rwanda, Cote d’Ivoire, and Benin.

Their causes?

These 4 international locations, in keeping with Justice Adjei, withdrew from the Court as a result of they misplaced all of the circumstances that have been introduced towards 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 mentioned.

Asked if the Ghanaian judicial system is conscious that its stance on the demise 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 mentioned.

But the foremost downside that we generally have is non-compliance. You will order the nation, and they won’t comply.

Success charge of the African Court

Asked concerning the success of the Court, he mentioned: “When you speak concerning the success charge of the Court, what I’ll say is that, sure, we have now sufficient circumstances. We’ve been delivering judgement each quarter. We are resuming quickly, and we’re going to ship about eight judgments. Every quarter, we ship between six and 10 judgments.

That means we have now a number of work to do. But the foremost downside that we generally have is non-compliance. You will order the nation, and they won’t comply.”

He indicated that nevertheless, each time a rustic refuses to adjust to the Court’s order, the case is referred to the Council of Ministers on the AU that has the facility to find out such issues.

“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 mentioned.

Burkina Faso complies with all choices

Citing a superb instance, Justice Adjei mentioned Burkina Faso has complied with all the selections made towards 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 mentioned.

By Emmanuel Ok Dogbevi
Copyright ©2024 by NewsBridge Africa
All rights reserved. This article or any portion thereof might not be reproduced or utilized in any method in any respect with out the categorical written permission of the writer aside from the usage of temporary quotations in critiques.