The survival of the modern human race has been attributed to the development of laws as a system of guiding human behavior in society. As against the state of nature where individual liberties had not yet manifested and private property was not yet an acceptable norm, modern society enshrines the protection of life, yields of the sweat of man and the pursuit of happiness in whatever way it manifests itself so long as it is not predatory on the freedoms of the next man or the interest of larger society. In ensuring a preservation of this state of affairs, laws evolved from merely being tools of positive morality i.e. non-coercive but with a quality of societal approval to encompassing the aforementioned as well as commands backed with threats as Austin describes it.
How did we get to where we are today?
These threats serve as incentives, so to speak, for obeisance to law. In order to protect life, liberties, private property and the pursuit of happiness, it was not enough to operate by societal approval or lack thereof for an action. There had to be something that coerced people to obey and thence came punishment. When the law provides that Y will happen to you or be meted out to you if you do not do X or if you do X, Y serves as a punishment within that schema of things. Punishment is a product of legal systems. In the state of nature, people got away with whatever they chose to do because they had the might and strength. By taking your life because you did not give Neanderthal M your goats, you were not being punished because no law existed that imposed a duty on you to give out your goats. But by being sentenced to death because you committed treason in the republic of Azerbaijan, you were being punished because laws existed which you had broken.
Why do we punish?
The question of why we punish people seems like a straightforward one. We punish you because you failed to live up to a standard society had enshrined as law. But what the inherent value of that act of punishing you was demands further interrogation. Two theories have been put forth as reasons why we punish people and they are the Retributive Theory and Utilitarian Theory.
The ancient Code of Hammurabi is the first known source of the eye for eye tooth for tooth principle. This has found its way in the Mosaic code as well as the Sharia of Islam. What this essentially provides is that we punish you with X if you did X to a person. So if you kill Kofi, we kill you too. This is the foundation of the retributive theory; we pay you in equal measure for what you did to others. Retributive theory has however been watered down to the proportionality theory which simply provides that the punishment must fit the crime and not exactly replicate the crime.
The Utilitarian Theory on the other hand is about find some inherent good in punishment and not just a thrill in punishing, as the retributive theory seems to suggest. The utility in punishing a convicted person lies in how it takes us to a desirable end in society where crime no longer exists. We therefore find under the utilitarian theory, desired end goals like deterrence, rehabilitation/reformation and reparation.
Let him Hang!
The death penalty is one form of punishment which has been in existence since time immemorial. Denying a person of his life was essential at the core of the Code of Hammurabi. It is also extensively used by both the Mosaic and Sharia systems which imposes the death penalty for a wide range of acts not secluded to murder/manslaughter. These include adultery, treason (which some scholars say was equal to apostasy in those days), rape etc. Other societies equally made extensive use of the death penalty. Literature from the middle ages depicts how the death penalty was used to quell revolts by peasants and deter persons seen to be apostates of the church. It was again used heavily in the age of colonialism against people who stood up against European looters.
According to Amnesty International, 56 countries still retain the Death penalty on their statue books with 106 countries having completely abolished it de jure for all crimes, eight having abolished it for ordinary crimes (while maintaining it for special circumstances such as war crimes), and 28 are abolitionist in practice.
What is the situation in Ghana?
Article 13 (1) of the 1992 constitution provides that : No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the Laws of Ghana of which he has been convicted. This constitutional provision expressly provides for the institutionalization of the death penalty in Ghana so long as it is a sentence of a court of competent jurisdiction. In the Criminal Offences Act, 1960 (Act 29), the death penalty is provided as punishment for murder as well as attempt to commit murder by a convict, genocide, treason and high treason. Further under the Armed Forces Act of 1962, treason and mutiny by military personnel during times of war can also be punishable by the death penalty.
Measuring by available statistics, there are a 160 persons currently on the death row in the country. However, not a single person on death row, has had his or her sentence carried out since 1993. Even though the country is not currently regarded as an abolitionist state, it is nonetheless tagged as a de-facto abolitionist due to the reluctance of successive presidents since 1993 to carry out a death penalty. In essence, what we currently have in the country is a situation where judges compulsorily hand out statute mandated death sentences to persons found guilty of some specific offences in the 1992 Constitution as well as the Criminal and Other Offences Act yet such sentences not being carried out.
The Constitution Review Commission of 2011 in its recommendation for Constitutional Change provided that the death penalty should be replaced with imprisonment for life without parole, a stiffer penalty than the current practice. Such an amendment is to be undertaken through a referendum given that the said provision is an entrenched constitutional provision.
The recommendation of the CRC was hinged on the following arguments:
- Death Penalty is unconscionable as it makes the punishment just as barbaric as the crime.
- Death Penalty has never been enough deterrence for prospective criminals.
- Capital Punishment does not necessarily give closure to families.
- By killing a convicted person, the state becomes a killer itself.
- Reformation serves as a better end than killing.
- There exists a global push towards ending death penalty.
As mentioned earlier, persons who are handed the death penalty have not been executed since 1993 with successive presidents opting for substitution of the sentences of some persons with life imprisonment. President John Dramani Mahama commuted 33 death sentences to life imprisonment, and, in commemoration of Ghana’s 54th Republic Day Anniversary, in 2014, he commuted 21 more. President Mahama commuted 14 death sentences in 2015. President Kufuor also commuted the sentences of 179 prisoners who had served at least 10 years on death row. In honor of Ghana’s 50th anniversary of independence (May 2007), he commuted 36 death sentences to life imprisonment.
Cruel, inhuman ad degrading to be perpetually on Death Row
Article 15(2) of the 1992 constitution provides that No person shall, whether or not he is arrested, restricted or retained, be subjected to –
(a) torture or other cruel, inhuman or degrading treatment or punishment;
(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.
The leading case in Ghana’s jurisprudence which revolves around this article of the 1992 constitution is that of Dexter Eddie Johnson v. The Republic. Here, the appellant who had been found guilty of murdering an acquaintance of his was appealing, inter alia, the ground that the mandatory death penalty in Ghana for murder was in contravention of Article 15.2 was dismissed. That is not the position of this paper. This essay is about the perpetual presence of persons on the death row. With no single execution since 1993 and neither of the succeeding presidents of this republic showing intent to carry out an execution, persons placed on the death row stay on it perpetually.
This has its own repercussion on the quality of life such persons have in an already deplorable situation. The lived conditions of persons on death row is worse than that of other inmates. They are isolated from the general prison populace and are denied the little privileges given to other prisoners like literacy skills and sports. One death row prisoner in speaking to Amnesty International stated that “If I were to be killed, it would be better than being here.”
While the USA in its ruling in the case of Furman v. Georgia held just as the Ghanaian Supreme Court did in the Dexter case that the death penalty was not cruel and unusual, it did hold in the case of In Re Medley that the solitary confinement of the prisoner before his execution an additional punishment of the most important and painful character. This is true of inmates in Ghanaian prisons on death row who are kept in what is popularly known as condemned cells. Also in the case of Jones v Chappell, Judge Carney held that awaiting execution for decades with complete uncertainty as to when, or even whether, it will ever come is a punishment no rational jury or legislature could ever impose.
Policy Consideration for the Future
Undoubtedly, a sentence of death has some quality of deterrence for larger society and retribution for the worst criminals. However, it has been argued that for the majority of murder cases which tends to not be premeditated, there is no value of deterrence in such a punishment. Nonetheless, the death penalty should be removed from the law books of this country as recommended by the CRC. With no president showing the resolve to carry out an execution, having people on the death row continues to represent a cruel, inhuman and degrading punishment, flying right in the face of the entrenched provision of Article 15 (2).