Ghana - Amnesty International

84GHANA: END IMPUNITY THROUGH UNIVERSAL JURISDICTIONNo Safe Haven Series No. 10under international law prior to the enactment of that legislation. 250Thus, nothing in either article or other international law prevents Ghana from enacting legislationincorporating crimes under international law into its law and permitting prosecutions for thosecrimes committed prior to the legislation entered into force, but after they were recognized as crimesunder international law. It is not clear whether national legislation defining crimes underinternational law as crimes under Ghanaian law is retrospective. However, to that extent that suchlegislation is retrospective, it is possible that the constitutional prohibition of retrospective criminallaw may make such legislation unconstitutional, even if such legislation is permissible underinternational law. 2516.7. NE BIS IN IDEMThe principle of ne bis in idem (that one cannot be tried twice for the same crime) is a fundamentalprinciple of law recognized in international human rights treaties and other instruments, includingthe ICCPR, the American Convention on Human Rights, Additional Protocol I and constitutiveinstruments establishing the ICTY, ICTR and the Special Court for Sierra Leone. 252 However, apartfrom the vertical exception between international courts and national courts, the principle onlyprohibits retrials after an acquittal by the same jurisdiction. 253 This limitation on the scope of theprinciple can serve international justice by permitting other states to step in when the territorialstate or the suspect’s state conducts a sham or unfair trial. It is not clear whether Ghana courtswould recognize ne bis in idem as a bar to prosecution in Ghana if the person had been tried in aforeign proceeding that was a sham or unfair. 254250See, for example, Committee against Torture, Concluding observations – Spain, U.N. Doc. CAT/C/ESP/CO/5,2009, para. 21.251The 1992 Constitution has a retroactivity provision, which does not expressly exclude crimes underinternational law. Ch. V, Article 19 (5) states: “A person shall not be charged with or held to be guilty of acriminal offence which is founded on an act or omission that did not at the time it took place constitute anoffence.”252ICCPR, art. 14 (7); American Convention on Human Rights, art. 8 (4); Additional Protocol I, art. 75 (4) (h);ICTY Statute, art. 10 (1); ICTR Statute, art. 9 (1); Statute of the Special Court for Sierra Leone, art. 9.253The Human Rights Committee has concluded that Article 14 (7) of the ICCPR “does not guarantee non bis inidem with regard to the national jurisdictions of two or more States. The Committee observes that this provisionprohibits double jeopardy only with regard to an offence adjudicated in a given State.” A.P. v. Italy, No.204/1986, 2 November 1987, 2 Selected Decisions of the Human Rights Committee under the OptionalProtocol 67, UN Doc. CCPR/C/OP/2, UN Sales No. E.89.XIV.1. This limitation was also recognized during thedrafting of Article 14 (7) of the ICCPR. See Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of theInternational Covenant on Civil and Political Rights, Dordrecht, Martinus Nijhoff, 1987, pp. 316-318; ManfredNowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Kehl am Rhein, N.P. Engel, 1993, pp.272-273; Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the InternationalCovenant on Civil and Political Rights, Oxford, Clarendon Press, 1991. The ICTY Trial Chamber in the Tadić casereached the same conclusion. Prosecutor v. Dusko Tadic, Case No IT-94-1-A, July 15, 1999.254The Constitution’s double jeopardy provision prohibits re-trials only for those accused who can show that theirAmnesty International November 2012 Index: AFR 28/004/2012