The impetus for this week’s article is a comment recently made by Dr Zanetor Rawlings on the glaring disparity of sentences plaguing the justice system.
The Korley Klottey MP, true to form in her relentless advocacy for Ghana to improve its democratic credentials, questioned the discriminatory tendency of the sentencing regime in Ghana, highlighting the unjustifiably harsh punishment meted out to petty offenders as against the low or sometimes non-existent penalties enjoyed by politicians who mismanage state resources.
Whilst featuring on Joy News’ podcast ‘Talk No Dey Cook Rice’, Dr Rawlings recounted a story where a trader was handed down a two-year sentence in prison for damaging parts of an underpass, contrasting it with politicians, well-connected personalities and senior civil servants who walk free after committing far more serious crimes, like wanton dissipation of public funds.
The anecdote referred to by the MP is not an isolated story but symptomatic of the discriminatory and inconsistent phenomena of sentencing prevalent in the justice system.
Stories abound of the incarceration of petty criminals, mostly with heavy sentences, whilst high-level officials virtually walk free with impunity after committing comparatively serious crimes.
Also, there are numerous cases where there are disparities in sentencing, even for similar crimes.
For example, stealing a phone might attract a sentence of four years in Butumajebu, whilst a person convicted of the same offence in Accra might get off with a light sentence.
This trend inevitably leads to what is termed ‘disparity of sentence’ which arises when cases which are similar in relevant respects are dealt with differently or when cases which are different in relevant respects are dealt with similarly.
This phenomenon, which is innately discriminatory, has been the bane of sentencing practice in Ghana for a long while and needs urgent reform.
Sentence disparity on all accounts is a form of injustice ‒ convicted persons receive different sentences for similar crimes at different courts.
This lottery of sentencing, with no standard and consistent penalties, largely dependent on geography or which judge is sitting, needs to be jettisoned.
The solution lies in the adoption of nationwide sentencing guidelines for all categories of crime.
Sentencing guidelines
Sentencing guidelines provide a framework of sentences allotted to different crimes, which provide a reference point for judges in sentencing offenders.
Judges are obligated to follow sentencing guidelines and must proffer valid reasons when they deviate from them.
For example, if the tariff for stealing a phone is five years, then the sentence should be five years, irrespective of location or place of trial.
If a judge deviates from the stated punishment, then he/she must provide cogent reasons for that deviation, like unique personal circumstances of the offender in mitigation.
Sentencing guidelines have many advantages: they offer consistency in the sense that similar offences receive similar sentences, thereby ridding the sentencing regime of discrimination and arbitrariness.
They also provide a structured and transparent system of sentencing which is anchored in fairness.
Further, it provides a proportional system where offences are punished in relative proportion to the seriousness of the offence and the consequential harm caused to the victim and society at large.
The consistency factor is very important as it guides judges and lawyers – judges in reaching consistent sentences, and lawyers, and to a large extent offenders, in predicting the range of sentences available when they become entangled in the justice system after committing a crime.
Overall, sentencing guidelines imbue the criminal justice system with credibility and, through this, promote citizen trust in the administration of justice ‒ a vital cog in the machinery of justice administration.
Rid
The rolling out of national sentencing guidelines would rid the justice system of the many and often ridiculous sentences that keep cropping up and which bring the justice system into disrepute.
If ‘Kofi Babone’ steals Koobi from ‘Maame Konkonsa's’ store in Apiokrom, he is sure to get the same sentence as ‘Koku Gbablaja’, who steals tilapia from ‘Efo Nyebro’s’ store in Kpeve.
This call for national sentencing guidelines is one of the many reforms I urge on the newly appointed Chief Justice ‒ more on that later ‒ to institute and propel our justice system to the level commensurate and consistent with globally accepted standards of administration of justice.
This is because sentencing plays a pivotal role in the criminal justice system, given its relevance in promoting just societies. In a following article, the aims of sentencing policy in the Ghanaian context will be explored.
The writer is a lawyer.
E-mail: georgebshaw1@gmail.com
