Aisha Huang's punishment: Balancing justice, rights and societal expectations

The article investigates the complex circumstances surrounding Aisha Huang, who committed a crime of mining operation without a license in violation of Section 99(1) of Act 900, punishable by up to five years in imprisonment, aiding the involvement of individuals in mining operations, illegally employing foreigners, and entering Ghana while prohibited from re-entry in Ghana between 2015 and 2018.

When the Mineral and Mining Law was changed in 2019, Act 995, she was rearrested in 2022. In the amended Act 995, the penalty for the same offence is a maximum of 25 years in jail. 

The fundamental issue is whether Aisha Huang should face the original maximum penalty of 5 years in jail under section 99(1) of Act 900, which came into effect in 2015, or the new penalty of 25 years in prison under Act 995, which came into effect in 2019. This article examines the two arguments for either using Acts 900 or 995 to prosecute Aisha Huang for the crimes she committed.

According to the legal principle of no retroactive application of criminal law stipulated in Article 19(5),(6),(11) and Article 107 of Ghana's 1992 Constitution, Aisha Huang should face a maximum of 5 years in prison because that was the punishment in effect when she committed the offense between 2015 and 2018. The penalty cannot be increased to 25 years in prison retroactively because it would violate Aisha Huang's legal rights. As a result, the penalty that was in force at the time of the infraction must be carried out. Unless she committed the same offense after the passage of Act 995.

1. Non-Retroactivity notion: The notion of non-retroactivity is fundamental to all legal systems around the world. It states that legal changes cannot be applied retroactively to those accused of crimes committed prior to the alteration of the law. This principle protects individuals' fundamental rights and fairness by shielding them from unexpected and unjust treatment.

2. Legal Certainty and Predictability: Legal certainty and predictability are critical in creating a fair and just legal system. In order to make educated judgments, individuals must be able to predict the prospective consequences of their actions. Retroactive punishments violate this principle because Aisha Huang would not have been aware of the possible change and its ramifications at the time of the offense. As a result, implementing the heavier sentence would be a violation of the norm of legal certainty. Unless Aisha Huang gets charged with a crime between 2019 and 2022.

3. Protection against Ex Post Facto Laws: Ex post facto laws, which penalize activity retrospectively or raise the severity of punishment for earlier violations, are usually seen as unjust and in violation of legal norms. Ghana, like many other legal systems, prohibits ex post facto legislation. Applying the amended penalty on Aisha Huang would thus be contrary to this legal principle.

4. Upholding the Rule of Law: Upholding the rule of law is essential for preserving a just and orderly society. Ghana exhibits its commitment to maintaining a fair and predictable legal system by adhering to the principle of non-retroactivity. Following the rule of law preserves public trust and guarantees that individuals are treated fairly, accepting that they should be held accountable under the laws that were in effect at the time they committed their crimes.

To impose a harsher penalty under Act 995, however, the Attorney General may argue that, given the nature of the act and Ghana's right to protect its citizens, Aisha Huang should face the amended penalty. If the AG decides to appeal the four and a half year sentence imposed on Aisha Huang. The following arguments will be critical.

1. Deterrence: Deterring potential offenders and protecting society from crime is one of the fundamental aims of criminal punishment. By imposing a harsher sentence, such as the modified 25-year prison term, Ghana sends a message that serious criminal behavior will not be allowed, potentially discouraging others from committing similar crimes. The concept of deterrence serves the larger goal of protecting the welfare of communities.

2. Updated Legislation: As societal demands change, so does legislation to accommodate these changes. Act 995, which changed the penalty for the infraction, most likely reflects a better awareness of the crime's impact on society and the necessity for harsher penalties. It is critical that the law adapt to meet modern problems, ensuring that justice is administered effectively and holistically.

3. Proportional Punishment: The proportionality principle advocates for punishments that are appropriate to the seriousness of the crime committed. Applying the old penalty in circumstances when the law has changed, as in Aisha Huang's scenario, may undercut the principle of proportionality. Given the nature of her crime, which presumably resulted in the higher penalty, a more forceful position may be required to protect justice and public trust in the legal system.

4. Societal Expectations: In general, society expects the judicial system to administer justice in accordance with the gravity of the crime, while keeping up with shifting viewpoints and legal frameworks. In this example, enforcing the revised penalty meets these expectations, proving that Ghana's legal system is responsive to shifting societal attitudes about criminal behaviour. Meeting the public's expectations increases the justice system's legitimacy and credibility.

5. Preventing a Culture of Impunity: Allowing people who committed crimes in one legal iteration to obtain less punishments in the next risks developing a culture of impunity. This breaks down trust in the system and erodes the rule of law. By using the revised punishment, offenders are treated consistently and fairly, regardless of when they were captured, and any legal loopholes are avoided.

In conclusion, it is appropriate to impose the modified sentence which has a maximum 25 years in jail on Aisha Huang. This argument is supported by the consideration of deterrence, updated legislation, proportional punishment, societal expectations, and the prevention of a culture of impunity. Ghana displays its commitment to securing justice, protecting communities, and upholding the rule of law by enforcing the amended punishment.