This article was originally published in The Conversation Africa, 17 July 2023.
Thirty years have now gone by since Ghana used its gallows, a fact that indicates the country’s respect for human life. It also means that Ghana is one of about 42 nations – many of which are in Africa – that the United Nations calls abolitionist de facto because they have not executed anyone for at least a decade.
However, there is a paradox. Not only does Ghana retain the death penalty as a sentence for three crimes (murder, treason and genocide), death is the mandatory punishment for them. The law gives the judges no choice in sentencing for these crimes. Last year, the courts sentenced seven people to death. At the end of 2022, there were 176 inmates on death row, and the list grows every year.
It could be argued that by continuing to hand down mandatory death sentences, Ghana’s courts are unusually harsh, for, according to Amnesty International, only ten countries did so last year.
But Ghanaian policymakers and civil society are making a renewed effort to resolve the contradictions on the death penalty. These efforts have led to two new bills due to be debated by parliament. They would enable Ghana to abolish capital punishment in law, as well as in practice.
As academic and legal experts on capital punishment for more than 30 years, we have been assisting Ghanaian policymakers and civil society groups. The latest initiative to end the use of the death penalty is firmly rooted in human rights principles and evidence based research.
A broad engagement in Ghana over a sustained period with a diverse range of stakeholders has enabled members of parliament to consider key aspects of capital punishment objectively. Previous attempts to abolish the death penalty in Ghana have involved complex constitutional amendments. The current moves require only amendments to criminal statutes: a majority of MPs need to vote for abolition.
A chance for change
The two new bills before parliament create a golden opportunity to bring the contradictions to an end. One covers the military, the other the civilian courts.
This opportunity follows a recent wave of abolition across sub-Saharan Africa. In the last ten years, Benin, Burkina Faso, Central African Republic, Chad, Equatorial Guinea, Guinea, Madagascar, Republic of Congo, Sierra Leone and Zambia have all abolished the death penalty. Despite their vastly different histories and legal contexts, through political will and leadership these countries all reached a recognition of the cruelty, inhumanity and injustice inherent in capital punishment. In doing so, they joined over 100 other countries worldwide which have now fully abolished.
Ghana’s Committee on Constitutional, Legal and Parliamentary Affairs, assisted by senior justice officials, has been scrutinising the new bills carefully. We also had the privilege of being able to offer the committee advice. Its reports are now in, recommending that the House should pass the bills and replace the sentence of death with life imprisonment.
The committee’s reports note a further contradiction in Ghana’s current stance: it has ratified international human rights treaties and conventions, including the African Charter on Human Rights and the International Covenant on Civil and Political Rights. These, the committee says, “oblige the country to guarantee its citizens the right to life, and to live free from torture or cruelty.”
The reports deploy further, persuasive arguments.
One is that no criminal process can ever achieve certainty or perfection, so that retaining the death penalty will always carry the risk that an innocent person could be executed.
Another examines the claim that capital punishment is a deterrent to offending. The committee says there is no empirical evidence for this. In the United States, the murder rate is consistently higher in states that use capital punishment than in those that don’t. The seven least violent countries in the world have all abolished it.
It is now up to parliament. Abolishing the death penalty in law would place Ghana squarely within a worldwide trend, which is especially noticeable in Africa at the moment. Movements to do the same are gathering pace in other jurisdictions on the continent.
A willing public
The latest effort at abolishing the death penalty is not the first. In 2012, Ghana came close to abolishing the death penalty altogether, following a recommendation by the Constitution Review Commission that was accepted by the then-government. Unfortunately, the path it tried to adopt, amending the constitution, is complex and challenging and in the end it failed.
Although its courts are still sentencing people to death, Ghana supported a UN General Assembly resolution last December calling for an indefinite, worldwide moratorium on the death penalty “with a view to abolition”. Similar resolutions have been carried repeatedly with steadily increasing majorities since 2007. In 2022, almost two-thirds of the world’s nations voted in favour. For the first time, Ghana was among them, having abstained previously.
Meanwhile, although politicians sometimes express the fear that abolishing the death penalty would be unpopular, there is good evidence that in Ghana the opposite is true.
According to a study published in 2015, there are clear majorities against the death penalty for all three of the crimes to which it is applicable. Just 8.6% of those surveyed said they were “strongly in favour” of it. In all, 71% were against. Based on interviews with more than 2,000 people who reflected Ghana’s socio-economic and ethnic composition, this survey was described by the late Professor Roger Hood of the University of Oxford in his foreword to the report as:
“the first methodologically sound study of public opinion on the death penalty in an African state.”
Some might argue that since Ghana is an abolitionist de facto nation, there is no pressing need for legal abolition. In practice, what difference would it make? To this argument, we would say: look at Myanmar, which having been abolitionist de facto since the 1980s, resumed executions last year. No state can ever be entirely immune from the political upheaval that caused this shift.
Co-Executive and Co-Founder of The Death Penalty Project and visiting Professor, School of Law, University of Reading.
Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of Oxford