Ghana: Death penalty law breaches the right to life

Johnson v. Ghana (2177/2012)

Summary

In March 2014, the Human Rights Committee was asked to consider whether Ghana had violated its obligations under the International Covenant on Civil and Political Rights through the mandatory imposition of the death penalty with respect to a person convicted of murder.

The communication was submitted by a dual Ghanaian-UK national under the Optional Protocol to the Covenant.

Background

On 27 May 2004, an American national was murdered in Ghana. The author of the communication, Mr Dexter Eddie Johnson, was accused of the murder. On 18 June 2008, following a trial, the author was convicted and sentenced to death. The author alleged that the death penalty was the only sentence available for the offence of murder under Ghanaian law.

Section 46 of Ghana’s Criminal and Other Offences Act (1960) provided that ‘a person who commits murder is liable to suffer death’. Article 13(1) of Ghana’s Constitution (1993) states that ‘no person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted’. Ghana has not incorporated the Covenant into domestic law.

The author appealed his conviction and sentence to the Court of Appeal, arguing that while the death penalty per se is authorised by article 13(1) of the Constitution, the mandatory imposition of the death sentence was unconstitutional and violated his human rights. On 16 July 2009, the Court of Appeal dismissed his conviction appeal on the merits, and held in respect of his sentence appeal that it had no jurisdiction to deliberate on a challenge to the constitutionality of the mandatory imposition of the death penalty as the issue had not been raised before the lower court.

The author appealed to the Supreme Court. On 16 March 2011, the Supreme Court dismissed the appeal against conviction. As to the author’s sentence, it rejected the Court of Appeal’s decision on the lack of jurisdiction as matters of law could be raised at any time. However, it rejected the merits of the author’s challenge to the constitutionality of the mandatory imposition of the death penalty, holding that the mandatory imposition of the death penalty for murder was consistent with Ghana’s Constitution.

On 18 July 2012, the author submitted the complaint to the Committee, alleging that:

1. the mandatory imposition of the death penalty prevented trial courts from considering whether this exceptional form of punishment was appropriate in the circumstances of the case and such an indiscriminate position violated his right to life under article 6(1) of the Covenant;
2. the mandatory imposition of the death penalty precluded judicial discretion to impose a lesser sentence in violation of the prohibition on inhuman and degrading treatment or punishment under article 7 of the Covenant;
3. the mandatory imposition of the death penalty violated his right to a fair trial under article 14 of the Covenant as it prevented courts from determining and reviewing sentences; and
4. Ghana had failed to provide him with an effective remedy for the aforementioned violations as required by article 2(3) of the Covenant.

In accordance with rule 92 of the Committee’s rules of procedure, the Special Rapporteur on New Communications and Interim Measures requested that Ghana ensure that the death sentence against the author was not carried out while the communication was being examined by the Committee.

The Committee’s decision

In considering the complaint’s admissibility, the Committee noted that the author had exhausted all available domestic remedies and had sufficiently substantiated his claims. As the same matter was not being examined under another procedure of international investigation or settlement, the Committee declared the author’s communication to be admissible.

On the merits, the Committee noted that Ghana had failed to respond directly to the author’s claims that Ghanaian law requires that the death penalty be imposed in relation to the offence of murder. While recognising that Ghana is a de facto abolitionist State, the Committee acknowledged the author’s view that a de facto moratorium did not guarantee that the death penalty would not be carried out at a later point, particularly in light of the fact that Ghana had not voted in favour of the UN moratorium on the death penalty.

The Committee further noted that while the State party’s legislation excludes the imposition of death penalty with respect to certain categories of persons, the mandatory imposition of the death penalty to any other offender is based solely upon the category of crime for which the offender is found guilty, without providing the judge with any margin to evaluate the circumstances of the particular offence. The Committee referred to its earlier jurisprudence that such automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of article 6(1) of the Covenant. The Committee found that the existence of a de facto moratorium and the right to seek the exercise of the discretionary Presidential power of pardon or commutation were insufficient to render the mandatory imposition of the death penalty consistent with article 6(1) of the Covenant.

Having found a breach of article 6 of the Covenant, the Committee found it unnecessary to deal with the author’s remaining claims under articles 7 and 14 of the Covenant.

The Committee reminded Ghana that by becoming a party to the Covenant, it undertook to adopt legislative measures in order to fulfil its obligations. By virtue of article 2(3) of the Covenant, Ghana was under an obligation to provide an effective remedy, including commutation of the author’s death sentence, and to avoid similar violations in the future, including by adjusting its legislation to conform with the Covenant.

Ghana must now submit its written response within six months of the Committee’s decision, including information about the measures undertaken to give effect to the Committee’s recommendations, and ensure that the Committee’s decisions is published widely.

Catherine Drummond is an international lawyer, based in Paris.