Bill to reduce custodial sentences presented to Parliament

A new private members’ bill to amend the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) to introduce an alternative sentencing regime for misdemeanors has been presented to Parliament.

The amendments are to reduce the overwhelming number of convicts serving custodial sentences in an efficient way.

The purpose of the bill is to introduce community service and bond of good behaviour as alternatives to the traditional custodial sentences and fines for petty crimes, generally, referred to as misdemeanors, where the offence is not already specified by law.

Community service in the context of criminal justice refers to a form of alternative sentencing or punishment that involves individuals who have committed offences performing unpaid work or service for the benefit of the community.

It is being sponsored by the Member of Parliament (MP) for Madina, Francis-Xavier Kojo Sosu, who presented the bill to the Clerk-to-Parliament on December 12, last year.

Memorandum 

A memorandum accompanying the bill said in Ghana’s criminal jurisprudence, offences were categorised as capital, felonies (first degree, second degree and felony simplicitor), and misdemeanours.

It said some offences had no classifications but were categorised based on the prescribed punishment.

While the Juvenile Justice Act, 2003 (Act 653) made provision for minor offence, those were only in relation to juveniles and were defined as petty theft, petty assault and threatening offences.

“Where a person is convicted of a felony or a misdemeanor or of an offence punishable by imprisonment other than an offence for which the sentence is fixed by law, the court may sentence that person to a fine in addition to or in lieu of any other punishment to which that person is liable”.

“Thus, in Ghana, misdemeanors carry the least punishment, can be noncustodial and are amenable to settlement. It can, therefore, be inferred that the description of petty offences would apply to misdemeanors in Ghana,” the memorandum submitted by the National Democratic Congress (NDC) MP said.

The memorandum explained that the Act 30 was the primary legislation governing criminal procedure in the Republic.

The Act, it said, specified the punishment that could be imposed on convicted persons where an offence creating section did not indicate same.

Since it came into force on January 12, 1961, the Act had seen several amendments, most of which related to trial procedures.

“The punishment regime has not seen significant amendments other than the innovate introductions to the Juvenile Justice Act, 2003 (Act 653) after the provisions governing juveniles was decoupled from Act 30, and more recently, the partial abolishment of the death penalty with the passage of the Criminal Offences (Amendment) Act, 2023 (Act 1101),” it said.

The memorandum explained that criminal jurisprudence of Ghana recognised the death, imprisonment, detention, fine, payment of compensation and liability to police supervision as various forms of punishment under section 294 of Act 30.

“Despite the lawfulness of noncustodial sentences for both felonies and misdemeanours, it is uncommon to find sentences other than custodial sentences and/or fines imposed on convicted persons.

“This is regardless of the congestion of prisons in Ghana.

 The issue of alternative sentencing is a matter of national concern,” it said.

Harmonisation  

It added that the rationale behind the bill was to accentuate the existing provisions on noncustodial sentences, some of which were in different parts of Act 30.

“These are detention, the payment of compensation to persons injured by an offence, and the execution of a bond to keep the peace and to be of good behaviour.

“The Bill amends section 148(2) by adjusting the maximum compensation payable as a form of punishment from 500 penalty units to 1,000 penalty units to reflect the current rate of inflation,” it said.

It indicated that although not included in section 294, section 299 made provision for the execution of a bond to keep the peace and to be of good behaviour by persons who had been convicted for an offence.

“This Bill harmonises all the forms of punishment under the Act with the amendment of section 294 which lists the execution of a bond as a form of punishment.

“The amendment to section 294 is followed by an amendment of section 296(5) which sets out all the forms of punishment for persons convicted for misdemeanours, other than a term of imprisonment,” it added.

It posited that the current provision in section 296(5) stated only a term of imprisonment which gave a false indication that it was the only form of punishment that could be imposed by a trial court.

“The amendment to section 294 in subsection (g) introduces a new form of punishment which is in consonance with international standards of utilising the human resource that convicted persons can provide: the amendment adds community service to the forms of punishment,” it added. 

Supreme Court ruling

It cited how the Supreme Court had delivered several decisions that emphasised the need for sentences to be commensurate with the offences committed.

“In the case of Kwashie v The Republic [1971] 1 GLR 488 @ 493, the court held that the determination of the length of sentence within the statutory maximum sentence is a matter within the discretion of the trial court and the sentence imposed must bear some relation to the gravity of the offence.

 Section 294A emphasises that sentences must neither be harsh nor excessive,” it stressed.