Closing death row: The road to abolition in Ghana
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On 23 July 2021, when COVID-19 restrictions were still making travel to Africa impossible, we watched via a livestreamed link as Sierra Leone’s parliament voted unanimously to abolish the death penalty for all crimes. Our excitement was considerable, because a few months before the debate, the Death Penalty Project (DPP) and the University of Oxford Death Penalty Research Unit (DPRU) had worked closely with AdvocAid, our local partner in Sierra Leone, to produce a Memorandum making the case for abolition that was presented to government. It contained an evidence-based account of the risks associated with the death penalty: its arbitrariness; the ever-present danger of judicial errors and wrongful convictions; and capital punishment’s violation of international human rights standards. We also argued successfully that the death penalty should be replaced with a flexible and humane system of imprisonment subject to judicial discretion, instead of life without parole.
In hindsight it is clear that the decision taken by Sierra Leone was part of a trend towards abolition that is sweeping sub-Saharan Africa. In the past five years, not only Sierra Leone but also Chad, Burkina Faso, the Central African Republic, Equatorial Guinea and Zambia have all abolished capital punishment in law, as well as in practice. On 26 July 2023, Kenya’s president commuted more than 600 death sentences to life imprisonment. On the same momentous day – two years and two days after abolition was enacted in Sierra Leone – Ghana abolished the death penalty for all ordinary crimes. A sign that standards of decency really are evolving in this field is the fact that with Ghana’s addition to their ranks, there are now 124 de jure abolitionist nations globally.
As we had been in Sierra Leone, we were deeply engaged with local partners in the lead-up to Ghana’s parliamentary decision – and thankfully, the removal of pandemic restrictions meant we were able to visit the country in person on a number of occasions.
Our immediate involvement in the Ghanaian political process that led to abolition began 18 months ago. Since then, we have worked with a small team of international experts that includes the UK-based Ghanaian academics Dr Kofi Boakye and Dr Justice Tankebe, and John McKendrick KC of the Commonwealth Lawyers Association, to support the Private Members’ Bill that has now closed Ghana’s death row – which as of 25 July had 170 male and six female inmates. Technically an amendment to the country’s Criminal Offences (Amendment) Act, it was tabled by Francis-Xavier Sosu, a remarkable campaigner who rose from a poverty-stricken childhood in the slums to become a human rights lawyer and, eventually, the Member of Parliament for Madina.
However, the road to abolition is typically long and involves many individuals, and in all the DPP has spent more than a decade working with a Ghanaian NGO, the Legal Resources Centre, both assisting those on death row by providing free legal representation and engaging with civil society organisations, diplomats and parliamentarians to encourage debate on abolition. When we heard that Mr Sosu was planning to introduce his Bill, we reached out to offer our support. We produced a further Memorandum on lines similar to the document we had prepared for Sierra Leone, which drew on the decades of research conducted by the DPP, the DPRU, Dr Boakye and Dr Tankebe.
The Memorandum provided evidence and arguments in support of the Bill. We enhanced its impact through further, regular engagement with key stakeholders in Ghana, on occasions in London and further afield. For example, Saul Lehrfreund and Mr Sosu were invited to speak on this issue at the Commonwealth Law Conference, held in Goa, India, in March 2023. After Mr Sosu had tabled the Bill, our first meeting was with members of the Committee on Constitutional Legal and Parliamentary Affairs at DPP’s offices in London where we presented our Memorandum. The Chairman of the Committee, Hon. Kwame Anyimadu-Antwi, and Mr Sosu felt that our involvement in the political process would enhance the prospects of abolition and thereafter the DPP led several delegations to Accra, meeting government ministers, other parliamentarians, senior criminal justice and legal officials, religious leaders, civil society organisations (not least the dynamic team at Amnesty International Ghana), the Bar Association and the diplomatic community, among others. We received tremendous support from the British and Australian High Commissions, whose staff in turn garnered further support from diplomats from around the globe. We also presented our arguments against the death penalty in various public fora, including the University of Ghana, and in private meetings in London with the Ghanaian Attorney General, Solicitor General and Director of Public Prosecutions, where we presented the case for abolition in Ghana.
The arguments we used in Ghana were shaped to the jurisdiction and built on years of previous initiatives aimed at abolition. 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. However, in many respects, the arguments against capital punishment are universal, and draw on evidence from across the world.
By 2023, Ghana had not executed anyone for thirty years, so making it one of 41 nations described by the United Nations as abolitionist de facto (ADF) on the grounds they have not executed anyone for at least a decade. However, Ghana’s courts continued to sentence people to death. The death penalty was available for treason and genocide, and mandatory for murder. Our Memorandum pointed out that this meant Ghana was violating its obligations under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, both of which declare that a mandatory death penalty breaches human rights norms.
Our Memorandum also cited evidence that Ghana, along with other retentionist countries, routinely violated the due process rights of suspects and defendants who faced this ultimate penalty, not least through the arbitrariness that seems to be inherent in all criminal justice systems that use the death penalty. It further argued that even in an ADF country, those sentenced to death experience stigmatisation and deep psychological wounds, while their families endure significant vicarious trauma.
The commonest justification for the retention of the death penalty used in the minority of states that continue both to hand down and execute death sentences is the claim that capital punishment has a unique deterrent effect. Our Memorandum reviewed the evidence from deterrence studies, concluding that the death penalty does not deter murder to a marginally greater extent than does the threat or application of life imprisonment.
One of the most compelling forces driving the evolution of international attitudes towards capital punishment in recent decades has been the increasing recognition of the potential for error in its use – that those states that choose to retain the practice may be taking the lives of innocent individuals. We presented evidence that wrongful convictions are inevitable in Ghana, just as they are elsewhere, particularly given the country’s inadequate procedural safeguards, the risks of wrongful confessions and the challenges of access to adequate legal counsel.
However, faced with calls to join the majority of states worldwide that have now abolished capital punishment, retentionist governments and their representatives often insist that their citizens are not yet ‘ready’ for abolition, and that until they are, political leaders must respect what they call ‘the will of the people.’
Such reasoning obscures the complexity of public opinion on this issue, which can be difficult to ascertain. Indeed, while public opinion on capital punishment should not be entirely ignored, research has found that it is often influenced by misconceptions about its administration and efficacy. Rigorous empirical research sometimes reveals that retentionists’ claims about public support for the death penalty are flawed and highly questionable. By enquiring beyond the binary question of whether or not respondents support or oppose the death penalty, much more nuanced views emerge. Also present in our Memorandum was persuasive evidence produced by Dr Boakye and Dr Tankebe that in Ghana, the public were decidedly not in favour of retaining the death penalty. According to a rigorous study they conducted in 2015, which was based on interviews with more than 2,000 people representative of Ghana’s socio-economic and ethnic composition, there was a clear majority of 71 per cent against the death penalty for all three of the crimes to which it was applicable, while just 8.6 per cent of those surveyed said they were ‘strongly in favour’ of retention.
Following the failure to achieve abolition by amending the constitution in 2012, Mr Sosu argued that it could be done much more simply by amending the criminal law, so avoiding the complex, costly, and protracted process of a constitutional amendment. Our Memorandum supported this view, making clear that by this meant capital punishment could immediately be replaced by a humane and flexible system that would bring the punishment of serious offences in Ghana into line with international best practice.
Abolition, we argued, would also fulfil Ghana’s international human rights obligations. As a State Party to the ICCPR, there is no doubt that Ghana was under a duty to move away from capital punishment. In recent months, The President of the Republic of Ghana signalled his readiness to fulfil its international human rights obligations before the United Nations. On 20 December 2022, Ghana voted in favour of the Ninth United Nations General Assembly Resolution calling for the establishment of a universal moratorium on executions with a view to abolishing the death penalty. This was the first time that Ghana had voted in favour, having abstained in each of the previous eight Resolutions. Further, in January 2023, during Ghana’s 4th Universal Periodic Review, 37 States recommended to Ghana that it should abolish the death penalty. On 6 July, Ghana confirmed that it would support this recommendation.
These developments have been important, but ultimately national issues, rather than regional or even international developments, have been key to abolition. Mr Sosu’s Bill became the vehicle for accomplishing this domestic goal. We are grateful and proud to have had the opportunity to support him on this vital mission, and to have played a small part in the ending of a cruel and inhuman punishment in Ghana – which is now the 29th country in Africa to enact de jure abolition. We hope and believe that by doing so, it will add to the momentum in other ADF countries such as Kenya and Zimbabwe to adopt the same course.
Saul Lehrfreund is Co-Executive Director of The Death Penalty Project and Visiting Professor of Law at the University of Reading. Carolyn Hoyle is Professor of Criminology in the Centre for Criminology, University of Oxford and Director of the Death Penalty Research Unit (DPRU).