The case for non-custodial sentencing and plea bargaining in addressing same-sex sexual relationships

A significant problem that casts a long shadow over Ghana’s ongoing efforts at social and legal reform is the extreme congestion in its prison system. This problem is a significant indication of the underlying conflicts and difficulties within Ghana’s criminal justice system, not only one of capability.

This paper presents an important investigation of an alternative course: the use of plea bargaining and non-custodial sentencing, particularly in relation to the controversial topic of same-sex relationships, particularly in relation to the controversial topic of same-sex relationships and the proposed legislative response by the Parliament of Ghana through the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021.

This paper is a strong plea for a comprehensive reconsideration of Ghana’s justice system, rather than just an intellectual exercise. Fundamentally, it is an appeal for the shift from a punitive to a restorative and rehabilitative system, especially when it comes to issues involving the intricate relationships between morality, law, and human rights.

The paper advances a vision of justice that is consistent with modern human rights norms and acknowledges the intrinsic dignity of every person, regardless of their identities or acts, by proposing plea bargaining and non-custodial sentencing.

Without a shred of doubt, the state of Ghana’s prisons, where thousands of inmates are jammed into facilities meant to house considerably fewer, is a clear sign that reform is desperately needed. This paper makes a compelling case for a transformative approach to criminal justice by providing an analysis of the existing legal frameworks and actual conditions.

It calls for a paradigm change, not just a substitution; it supports a system that looks beyond punishment to the possibility of social reintegration, rehabilitation, and redemption.

This paper serves as a reminder of the wider repercussions of legislative actions as Ghana struggles with the possibility of making same-sex sexual partnerships illegal. It encourages legislators and politicians to adopt a more compassionate, progressive, and successful approach to criminal justice and to think about how legislative actions will affect society in the long run.

The decisions made today will shape Ghana’s legal history and impact the country’s identity, values, and dedication to justice and human rights.

The Current State of Ghana’s Prisons and the Call for Reform

Ghana’s prisons, grappling with extreme overcrowding, have become a focal point for human rights advocates, legal professionals, and the government. The nation’s prison system is currently facing a dire situation, with its facilities overflowing beyond capacity. The total prison population has reached a staggering 15,237, comprising 15,062 males and 175 females, far exceeding the intended capacity of 10,265 (as of July 2023)

This overpopulation, amounting to a 48 percent congestion rate, is having severe repercussions on the health and living conditions of the inmates. The Attorney General, Godfred Dame, has underscored the urgency of this situation, advocating for legislative intervention. The Ghana Prisons Service, in advocating for non-custodial sentencing, underscores its significance, especially due to the slow progress in enacting the Non-Custodial Sentencing Bill.

Understanding Non-Custodial Sentencing

Non-custodial sentencing encompasses various court-imposed punishments that exclude imprisonment, such as community service, probation orders, fines, and conditional discharges. These alternatives, aimed at punishing and rehabilitating offenders and preventing recidivism, are crucial, especially when the lack of a comprehensive framework in Ghana often results in incarceration for minor offences, thereby worsening prison overcrowding.

Some Relevant Legal Provisions in Ghana

1. The Criminal and Other Offences (Procedure) Act, 1960 (Act 30): This Act, while prescribing various punishments, falls short in providing comprehensive non-custodial options, thus limiting the judiciary’s sentencing capabilities.
2. The Juvenile Justice Act, 2003 (Act 653): Providing a more progressive approach for juvenile offenders, this Act allows for non-custodial measures such as probation or community service, serving as a potential model for the wider criminal justice system.
3. The Narcotics Drugs (Control, Enforcement, and Sanctions) Act, 1990 (P.N.D.C.L. 236): This Act incorporates non-custodial measures in certain contexts, including the confiscation of property and forfeiture of crime proceeds.
4. The Courts Act, 1993 (Act 459): Promoting reconciliation and amicable settlement for misdemeanours, this Act indicates a legislative preference for noncustodial measures in specific cases.

The Rationale for Non-Custodial Sentencing

The argument for non-custodial sentencing in Ghana rests on several pillars:

1. Human Rights and Dignity: Overcrowding in prisons leads to conditions that violate basic human rights and dignity. Non-custodial sentences would help reduce prison populations, thus alleviating this problem.
2. Economic Considerations: The financial burden of maintaining the current penal system is substantial. Adopting non-custodial sentences would allow the redirection of funds towards vital development and other sectors.
3. Social and Rehabilitation Benefits: Non-custodial measures offer more effective opportunities for the rehabilitation of offenders, which is crucial in reducing recidivism and enhancing public safety.
4. Judicial and Legislative Momentum: The push for non-custodial sentencing has garnered support from various sectors, including legal experts and human rights organisations, highlighting the necessity for legislative action.
Developments and recommendations

Efforts to tackle prison overcrowding, such as the Community Service Bill and the Non-Custodial Sentencing Bill, are in progress but need acceleration. Stakeholders shaping these bills demonstrate a collaborative approach to reform. This is commendable. However, there is urgent need for a firm and decisive action to bring the proposed laws to fruitions.

Recommended steps include:

1. Legislative Action: Prompt enactment of the Non-Custodial Sentencing Bill and the Community Service Bill is essential to providing a legal framework for alternative sentences.
2. Judicial Training and Sensitization: Education and sensitization of judges and magistrates on the benefits and application of non-custodial sentences are vital for their effective implementation.
3. Public Education and Awareness: Raising public awareness and support is crucial for the successful adoption of non-custodial sentencing.
4. Infrastructure and Resource Allocation: Sufficient resources and infrastructure are necessary for the effective administration of non-custodial sentences.
5. Monitoring and Evaluation: Implementing a robust system to monitor and evaluate the application of non-custodial sentences is essential for assessing the policy’s effectiveness and informing future improvements.
Plea Bargaining Regime in Ghana

The enactment of the Criminal and Other Offences (Procedure) Amendment Act, 2022 (Act 1079) marks a significant legal advancement, broadening the scope of plea bargaining in Ghana. This Act amends the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), introducing a more strategic approach to plea bargaining.

Key Provisions of Act 1079:

1. Expanded Scope for Plea Bargaining: The Act facilitates negotiations for reducing charges or altering punishments, including sentencing recommendations and restitution.
2. Inclusion of Victim’s Rights: The mandate ensures that victims are informed about potential plea agreements and provided with an opportunity to contribute their views.
3. Comprehensive Factors Consideration: The Act requires the consideration of various factors in reaching a plea agreement.
4. Written Agreements Requirement: The prosecution must document plea agreements in detail, including all pertinent information.
5. Disclosure Obligations: The Act ensures that the accused have access to all necessary documents and evidence for a fair negotiation.
6. Exclusions: Certain serious offences, such as treason, high crime, and murder, are excluded from plea bargaining.
7. Special Provisions for Juveniles: The Act includes specific considerations for juvenile offenders in plea agreements.

Important Note: The case of William Ato Essien, which engaged section 35 of the Courts Act, underscores the potential and challenges of plea bargaining. His failure to adhere to the terms of his plea bargain, leading to his incarceration, highlights the need for compliance with agreement terms and the consequences of violations.

The Ato Essien case has, to some extent, influenced the structured framework established by Act 1079, ensuring more effective and just conduct of plea bargaining in Ghana.

Addressing Same-Sex Sexual Relationships in Ghana: The Case for NonCustodial Sentencing and Plea Bargaining

In the context of the Parliament of Ghana considering the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 which proposes to criminalise same-sex sexual relationships, the nature of sentencing is a critical factor. This section argues against custodial sentences in favour of community or non-custodial sentences, supported by well-defined plea-bargaining provisions.

Arguments Against Custodial Sentences

1. Human Rights and International Condemnation: Custodial sentences for samesex sexual relationships could violate international human rights standards, leading to significant international condemnation and potentially affecting diplomatic relations and economic aid.
2. Aggravating Prison Overcrowding: Introducing custodial sentences for samesex relationships would worsen the already critical situation of prison overcrowding in Ghana.
3. Societal Impact and Stigmatisation: Custodial sentences could increase stigmatisation and discrimination against LGBTQ+ individuals, leading to social ostracization and mental health issues.
4. Cost Implications: Incarcerating individuals for same-sex sexual relationships would entail substantial economic costs, diverting resources from other essential areas.

Advocating for Non-Custodial Sentences and Plea Bargaining

1. Alignment with Human Rights Norms: Non-custodial sentences for same-sex sexual relationships would better align with international human rights norms, reducing potential international backlash.
2. Focus on Rehabilitation and Education: Community sentences focusing on rehabilitation and education could foster understanding of sexual diversity and promote tolerance.
3. Reducing the Burden on the Penal System: Non-custodial sentences would alleviate pressure on Ghana’s prison system, in line with criminal justice reform goals.
4. Legislated Plea-Bargaining Provisions: Incorporating plea bargaining into the legal framework for handling same-sex sexual relationship cases would offer a flexible and humane approach, allowing for case-by-case assessment.
5. Promoting Social Harmony: Non-custodial sentences, particularly those involving community service or educational programmes, could foster social cohesion and respect for diversity.
6. Economic Efficiency: Non-custodial sentences and plea bargaining would be more economically efficient than the costs associated with custodial sentences.

Conclusion

The Parliament of Ghana’s consideration of criminalising same-sex sexual relationships through the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 presents a pivotal decision affecting not only the LGBTQ+ community but also the wider society. Opting for non-custodial sentences and legislatively defined plea-bargaining provisions would ensure a humane, economically viable, and internationally respectful legal framework, upholding human dignity and promoting social harmony. This approach would mitigate the negative implications of custodial sentences, aligning with Ghana’s broader criminal justice reform agenda.

The Parliament of Ghana is clearly at a turning point in its examination of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 given the strong evidence and arguments put forth in this paper. The decision to make same-sex partnerships illegal has significant ramifications for our legal system’s integrity, the larger social fabric, and the LGBTQ+ population.

As this paper argues, the justification for plea bargaining and non-custodial punishment is not only a question of opinion; it is a basic responsibility of the Parliament. It is an obligation based on the values of social justice, economic pragmatism, human rights, and legislative accountability. Choosing noncustodial punishments and structured plea bargaining provides a more humanitarian, financially sustainable, and globally acceptable legal system that is in line with international human rights standards.

This strategy also directly addresses Ghana’s prison overpopulation, which has become a human rights disaster due to extreme overcrowding. By adopting the approach proposed in this paper, Parliament can relieve pressure on Ghana’s criminal justice system, reallocate funds to areas of urgent need, and promote a more restorative rather than punitive approach to justice by implementing noncustodial sentencing.

Adopting these proposed legislative responses will also demonstrate Ghana’s dedication to progressive and enlightened governance. It would show a readiness to approach difficult social challenges in a way that preserves the values of justice and fairness, respects the dignity of every person, and fosters social harmony.

In summary, the Parliament of Ghana bears a great responsibility to fulfil this purpose. It must step up to the plate and take the lead in transforming the criminal justice system by adopting plea deals and non-custodial punishment in its proposed legislative response to same-sex sexual relationships and related issues. This is a moral requirement and a step in the direction of a society that is more just, equal, and compassionate than merely a legislative change. Parliament, in its efforts to police the kinds of adult relationships considered lawful and culturally acceptable and unacceptable in Ghana, has the chance to establish a precedent that reverberates internationally as a reputable member of the international community, demonstrating its dedication to social progress, fairness, and human rights.


About Alexander Afenyo-Markin

Alexander Afenyo-Markin, the author, serves as the Member of Parliament for the Effutu constituency in Ghana’s Central Region and holds the position of Deputy Majority Leader in the Ghanaian Parliament. He also leads Ghana’s delegation to the ECOWAS Parliament, based in Abuja. Professionally, Afenyo- Markin is a Ghanaian lawyer with expertise in constitutional law, human rights, financial crime law, security, and intelligence sectors. He is also a businessman with over two decades of experience as a business leader.