Ghana - Amnesty International

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72GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10recognizing a particular principle of superior responsibility in the laws of Ghana, which is adeparture from international law. However, an individual who commands another person to commit acrime is liable under Ghanaian law as an abettor. 209With regard to other principles of individual criminal responsibility, Ghanaian law is roughly similarto Article 25 of the Rome Statute. The common law and the Criminal Code provide for thecommission of a crime, individually or jointly (Rome Statute, art. 25 (3) (a)); ordering, soliciting orinducing a crime (Rome Statute, art. 25 (3) (b)); aiding, abetting or otherwise assisting thecommission of a crime (Rome Statute, art. 25 (3) (c)); contributing to the commission or attemptedcommission of a crime by a group of persons acting with a common purpose (Rome Statute, art. 25(3) (d)); and attempting to commit a crime (Rome Statute, art. 25 (3) (f). 210 However, there is noexpress provision in Ghanaian law making it unlawful directly and publicly to incite others to commitgenocide (Rome Statute, art. 25 (3) (e)).6.1.3. DEFENCESAs discussed below, there are a number of defences in Ghanaian law that are broader than defencespermitted under international law with respect to crimes under international law or which are notappropriate for such crimes, such as the defences of superior orders, insanity and voluntaryintoxication, which could lead to impunity for the worst imaginable crimes. 211CAT/C/GC/2, 24 January 2008, para. 26.209Henrietta J.A.N. Mensa-Bonsu, The General Part of the Criminal Law – A Ghanaian Casebook, Accra: BlackMask, 2001, p. 495210Under common law, those who assist in the commission of a crime, though not present at the scene of thecrime, are accessories and those who are present at the crime scene are principals in the second degree.However, the Criminal Code streamlines accessorial liability by classifying all who assist in the commitment of acrime – whether at the scene of the crime or not – as abettors. Henrietta Mensa-Bonsu, The General Part of theCriminal Law – A Ghanaian Casebook 480 – 90 (2001). Section 20 (1) of the Criminal Code states:“A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any othermanner purposefully aids, facilitates, encourages, or promotes, whether by a personal act or presence orotherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promotingthe commission of a criminal offence by any other person, whether known or unknown, certain or uncertain,commits the criminal offence of abetting that criminal offence, and of abetting the other person in respectof that criminal offence.”Under common law and the Criminal Code, if two or more persons agree or act together with a common purposein order to commit or abet a crime, they are guilty of conspiracy. See Criminal Code, sect. 23; Henrietta Mensa-Bonsu, The General Part of the Criminal Law – A Ghanaian Casebook 386 – 458 (2001).Under the common law and the Criminal Code, an attempt to commit a criminal offence is itself a criminaloffence. See Criminal Code, sect. 18 (2); Henrietta Mensa-Bonsu, The General Part of the Criminal Law – AGhanaian Casebook 459 – 479 (2001).211This section is not intended to cover the full range of defences to criminal charges under Ghanaian law, butsimply to discuss some of the most significant features regarding defences that have implications forprosecutions for crimes under international law based on universal jurisdiction.Amnesty International November 2012 Index: AFR 28/004/2012
GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 1073Defences – superior ordersGhanaian jurisprudence holds that superior orders are a partial defence under national law if theaccused can show that he or she innocently obeyed a superior who had the legal authority to do theacts commanded. 212 This defence has been contrary to international law since Nuremberg, althoughit may properly be taken into account in mitigation of punishment. 213 This defence has beenexcluded in numerous international instruments for more than half a century, including theNuremberg Charter, Allied Control Council Law No. 10, the ICTY Statute, the ICTR Statute, theRegulation establishing the Special Panels for East Timor, the Statute of the Special Court for SierraLeone, the Cambodian Law establishing the Extraordinary Chambers and the InternationalConvention for the Protection of All Persons from Enforced Disappearance. 214 The Committee againstTorture has concluded that superior orders can never be a defence to torture. 215Defences – mistake of factThe Criminal Code provides, and Ghanaian jurisprudence holds, that a good faith mistake of factgenerally constitutes a complete defence because it demonstrates that the accused had no intentionto do an illegal act. 216212See Henrietta Mensa-Bonsu, The General Part of the Criminal Law – A Ghanaian Casebook 170 – 71 (2001);Republic v. Hagan, GLR 607, 614 (1968) (holding that a civil servant who accepted a bribe was not innocentand thus could not be exonerated from conviction as an accomplice to accepting a bribe).213Amnesty International, The international criminal court: Making the right choices – Part I: Defining the crimesand permissible defences (ICC: Making the right choices), Index: IOR 40/01/1997, January 1997(http://www.amnesty.org/en/library/info/IOR40/001/1997/en), Sect. VI.E.6.214Charter of the International Military Tribunal, annexed to the London Agreement (Nuremberg Charter), 8 Aug.1945, art. 8; Allied Control Council Law No. 10, Punishment of persons guilty of war crimes, crimes againstpeace and against humanity (Allied Control Council Law No. 10), 20 Dec. 1945, art. II (4) (b), (published in theOfficial Gazette of the Control Council for Germany, No. 3, Berlin, 31 Jan. 1946); Charter of the InternationalMilitary Tribunal for the Far East (Tokyo Charter), art. 6; ICTY Statute, art. 7 (4); ICTR Statute, art. 6 (4); DraftCode of Crimes against the Peace and Security of Mankind, art. 5; UNTAET Regulation 2000/15 (establishingthe Special Panels for Serious Crimes, Dili, East Timor), 6 June 2000, Sect. 21; Statute of the Special Court forSierra Leone (Sierra Leone Statute), art. 6 (4); Cambodian Law on the Establishment of the ExtraordinaryChambers, with inclusion of amendments as promulgated on 27 Oct. 2004 (NS/RKM/1004/006), art. 29;International Convention for the Protection of All Persons from Enforced Disappearance, art. 6 (2).Article 33 of the Rome Statute permits the defence of superior orders to war crimes, but it is narrowlycircumscribed, applicable only to trials in the International Criminal Court and contrary to every otherinternational instrument adopted concerning crimes under international law, including instruments subsequentlyadopted, such as the Statute of the Special Court for Sierra Leone and the Cambodian Extraordinary ChambersLaw.215Committee against Torture, General Comment 2, U.N. Doc. CAT/C/GC/2, 2008, para. 26.216See Henrietta Mensa-Bonsu, The General Part of the Criminal Law – A Ghanaian Casebook 373 – 79 (2001);Nyameneba & Orbs v. The State, GLR 723 (1965) (holding that religious individuals possessing “herbs of life”could not be convicted of possessing Indian hemp if they did not know what they possessed was Indian hemp).Index: AFR 28/004/2012 Amnesty International November 2012
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