Justice Emile Short’s most recent advice on criminal justice delivery in Ghana, as reported by Ghanaweb this weekend, in my view is a ” tonic in the gin” and a welcome news , given it is the most constructive, pragmatic and professionally common sense statement l have for the first time heard from any responsible and accomplished professional of the judicial system , on the inappropriateness and irrelevance of our current criminal justice system, which is no longer fit for purpose, given it’s failure to meet the changing needs of our society.

There is no doubt that Ghana’s criminal justice system, like it’s legal system and structure are directly fashioned on that of the British ( our colonial masters) system.

However, the criminal justice legislations for the delivery of the British criminal justice services and practice , provide for a sentencing guideline framework for the courts, a framework that besides custody, also guarantees and provides for Alternative to Custodial Sentencing, with the characteristic features of Community Sentences.

It is a criminal justice system that has come to appreciate, understand and acknowledge the urgent need and the rationale of a penal policy which is no longer based on the rather narrow-minded retributive ethos of criminology, but rather on the rehabilitative and reparative approach to crime and in meeting the changing needs of the system in effectively confronting, challenging and addressing criminal behaviour as the appropriate response to rethinking crime and punishment in this century.

The Lord Chancellor of England and Wales, Lord Phillips in contributing to the Alternative to Custody debate ” The Case For Community Sentences” at the Scottish Justice Committee in 2003, observed categorically that ‘ offenders should not be sent to prison unless their offence is so serious that no alternative sentence is appropriate and when they are sent to prison,they must be sent no longer than their offending requires.”

He went on to add that ”.. when sentencing those who commit minor offences, the primary objective must be REHABILITATION, and that sentencing must have the purpose of :

THE PUNISHMENT OF THE OFFENDER, THE REDUCTION OF CRIME, THE REFORM/ REHABILITATION OF THE OFFENDER, PUBLIC PROTECTION, and the making of REPARATION by the offender to persons affected by their offence(s).

The Lord Chancellor went on further to suggest that ” in the case of dangerous offender(s), punishment and public protection should always be the paramount purpose of sentencing, stressing however that for this category of offenders, their rehabilitation must start in prison, whilst for minor offences, this can more effectively be achieved as part of a community sentence.

In the British criminal justice system as in other jurisdictions that have respect and value for the fundamental human rights of their citizens, the alternative to custodial sentencing is at the heart of their penal policies, one in which such alternative disposals as Probation Order, Supervision Order, Youth Rehabilitation Order, with a menu of specified activities, i.e drug , alcohol, anger management, motor-related offence focused programmes etc. ,Reparation Order, Unpaid Community work and Referral Order feature prominently as integral elements of a communirt sentence.

It is in this direction that the relevant, credible and appropriate education and training of the Probation officer,cannot be compromised on the alter of generic social work practitioners, as it is only the professionally qualified Probation officer, who would have acquired the requiste skills, knowledge and the experience in the management and rehabilitation of offenders sentenced to community orders , ensure and promote compliance and enforcement of the order.

It is my considered opinion that it is this meaning to sentencing , that Justice Emile Short appears to have rightly captured in his observation and comments about how people who commit minor offences should be dealt with within Ghana’s criminal justice delivery system.

Paradoxically,in Ghana,we have a criminal procedure code that is largely limited in scope,with insignificant meaningful impact on sentencing outcomes of the court, lacking the capacity to fulfill the traditional purposes of sentencing given it only provides for the two distinct sentencing disposals of FINES and CUSTODY for the sentencing courts, with their thresholds presenting rather indeterminate.

The consequence of prison over crowding in Ghana and it’s inherent challenges as identified in the recent Amnesty International report of April 25, 2012, drawing those denials of hue and cry from the prison service, is a clear indictment of a systemic failure to rethink crime and punishment in Ghana.

A failure that promotes the culture of sentencing offenders who commit minor offences or misdemeanours to mostly rediculous and crazy prison terms, such as the recent 5 years for a 28 year old unemployed labourer for the theft of a moble phone by the Bibiani Circuit Court, without any demonstration of the understanding , appreciation and acknowledgement of the Lord Chancellor of England and Wales’s professional view on how such offences ought to be addressed by the courts.

This is an anormally , which can only be addressed by constructively rethinkng Ghana’s criminal justice system and service delivery ,which can empower the courts with a requisite sentencing guidelines, one which has the prospects of building the professional capacity of sentencers, in empowering them to give relevant and appropriate professional considerations to sentencing beyond the myopia of fines and custody.

This is the way to demonstrate that our criminal justice system, it’s service delivery -sentencing-, and indeed the entire judicial system is a true reflection of it’s historical-link, and that it is fit for purpose in the 21st century, as it would have conformed to the UN Minimum Standard Rules for Custodial Sentencing.

The rather lame excuses about ammending the criminal procedure code is enough amd rather long overdue. It is time for the major key players of Ghana’s Criminal Justice System, to act . For they should know by now who, how and what is to be done particularly in terms of whatever ammendements are necceesary and vital.

As for the when, l dare say it is NOW .

THE AUTHOR IS AN OFFENDER MANAGEMENT AND REHABILITATION CONSULTANT &OPERATIONS DIRECTOR, OMRO.

FOR ENQUIRIES CONTACT :offender [email protected]

By: Marcus-Chris Lawson.

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