Decriminalising and Declassifying Petty Offences In Ghana
Petty offences have existed as part of the criminal law of England and were incorporated in the laws of Ghana following its colonisation. Modern trends in governance, human rights and the rule of law have triggered reforms in the criminal law of a number of countries Law reform towards decriminalisation of petty offences has also been influenced by the disproportionate impact of the enforcement of such laws on the poor, disadvantaged and marginalised sections of the society. While the ills of the criminal justice system are well-documented in various studies and reports, there is no specific research conducted on the treatment of petty offences in Ghana’s criminal justice discourse.
The influence of the British Common Law tradition on Ghana’s criminal justice system had laid heavily in ensuring a rather comprehensive codification of offences in the Criminal Offences Act, 1960 (Act 29) and other laws providing for offences. While there have been efforts in the United Kingdom to decriminalise certain acts, which appear to be minor infractions of a criminal nature, Ghana has not followed suit in
identifying petty offences and decriminalising or declassifying them where necessary.
It is against this background that CHRI with support from Open Society Initiative for West Africa (OSIWA) embarked on this research project to provide preliminary evidence in this uncharted area of the criminal justice system in Ghana to contribute to the ongoing efforts at reforms in the system. This would enhance and encourage the use of a more informed and holistic approach to reforming the system, rather than a
skewed approach focusing largely on trial and post-trial processes and outcomes.
This study shows that there is no clear definition of what constitutes a ‘petty offence’ in Ghana although the results show that there are indeed offences that fall into this category. While the convention delineation of offences into misdemeanours, felonies and serious offences exists in Ghana, misdemeanours (which constitute the least serious category) are not always petty offences. Indeed, there are efforts to make some of them even more serious offences, for example, corruption. The legislative trend also appears to be towards increasing the gravity of offences, rather than to lessening. Thus, the conclusion may be reached that Ghana’s legal system is yet to fully engage with the concept and practice of decriminalisation
and/or declassification of petty offences.
The results from the data gathered point to a need for decriminalisation or declassification of certain offences. Key informants identify offences, such as petty stealing, fighting, etc as worthy of decriminalisation for reasons among which are the placing of undue pressure on the criminal justice system, such offences affecting the poor and vulnerable and providing the opportunity for law enforcement agencies to violate the basic rights of suspects. Persons who are arrested for petty offences do not always enjoy full legal protection afforded by the respect for due process rights in these circumstances. The study therefore makes the following recommendations:
- 1.Nuisance offences should be decriminalised to make them tortious liability or be made statutory offences such that they are handled by the local government institutions.
- Alternative sanctions to imprisonment such as probation, rehabilitation, and fines should be used.
- Where decriminalisation is not possible, it is recommended that the offence in question is declassified and operable within the scope of Bye-laws passed by Metropolitan, Municipal and District Assemblies (MMDAs).
- Government should implementation a range of non-custodial sentencing measures as punishments for minor offences and restrict traditional custodial sentences to punishing more serious crimes.
- Law enforcement agencies should be trained on international protocols like the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social andCultural Rights, the African Charter on Human and Peoples’ Rights, the African harter on the Rights and Welfare of the Child and other soft law sources including the Fair Trial Principles in Africa.