The UN Human Rights Committee (UNHRC) has found that the automatic and mandatory imposition of the death penalty by Ghana violates the right to life provision in the International Covenant on Civil and Political Rights (ICCPR) which Ghana is a party.
“… [The] automatic and mandatory imposition of the death penalty [by Ghana] constitutes an arbitrary deprivation of life, in violation of Article 6, paragraph 1, of the Covenant, in circumstances where the death penalty is imposed without regard to the defendant’s personal circumstances or the circumstances of the particular offence”, the UNHRC, the UN body charged with monitoring compliance with the ICCPR stated. It therefore asked Ghana to take corrective action by commuting the death sentence of Mr. Dexter Eddie Johnson, who had filed a complaint to the UNHRC, bring its laws in conformity with the ICCPR, and report to the UNHRC in 180 days.
Ghana has since failed to take corrective action more than 180 days since the decision was adopted on 27 March, 2014, according to sources familiar with the decision. The ICCPR gives effect to the ideals contained in the Universal Declaration of Human Rights adopted in 1948.
Significantly, the decision does not prohibit Ghana from applying the death penalty because Ghana is not a State Party to the Second Optional Protocol to the ICCPR which requires State Parties to abolish the death penalty; instead it prohibits the automatic and mandatory application of the death penalty in Section 46 of the Criminal and Other Offences Act of Ghana (1960). Presumably if Ghana were to amend Section 46 to require that judges take the circumstances of a defendant into account when imposing the death penalty instead of providing this discretion to judges in other sections of the statute, Section 46 might not be read as providing the automatic and mandatory application of the death penalty as in “whoever commits murder shall be liable to suffer death.”
As the Johnson decision stands now, any person who was sentenced to death for murder on or after 7 September, 2000, the date Ghana acceded to the First Optional Protocol to the ICCPR, could, if not barred by statute of limitations, exhaust domestic remedies and then file a similar complaint to the UNHRC for a likely Johnson-type of decision.
Ghana has not executed any person sentenced to death since 1993, even though the 1992 Constitution provides a constitutional basis for it. Being an entrenched clause in the Constitution, abolishing the death penalty requires a referendum and the government accepted the recommendations of the Constitution Review Commission in 2012 to abolish the death penalty subject to Ghanaians making the decision at a referendum.
The decision by the 18-member Human Rights Committee [one member recused himself on this decision] followed a complaint filed by Mr. Johnson, whom an Accra Fast Track High Court had sentenced to death on 18 June, 2008, for the murder of an American citizen in Ghana. According to the complaint, Johnson, a dual citizen of Ghana and United Kingdom, continued to assert his innocence after the conviction and sentence and unsuccessfully appealed the case to the Court of Appeal and Supreme Court of Ghana challenging the mandatory death sentence under Section 46 of the Criminal and Other Offences Act of Ghana (1960), which he claimed, violated his right to life.
Having exhausted all domestic remedies, he filed a complaint to the UNHRC in Johnson v. Ghana, alleging that if Ghana were to carry out the execution, it would violate several of his rights under the ICCPR, including his right to life under Article 6(1), the prohibition of inhuman or degrading treatment or punishment under Article 7, the right to a fair trial under Article 14(1) (5), and urged the UNHRC to request Ghana to provide him an effective remedy under Article 2(3) if it found in his favor.
Ghana countered saying, among other things, that it was a de facto death penalty abolitionist State and that no one had been executed for murder since 1993, adding that reforms were underway to repeal the law. It further argued that the death penalty was authorized by Article 13(1) of the 1992 Constitution of Ghana and that the death sentence is not imposed arbitrarily. Additionally, it said that the courts take the circumstances of a defendant and the facts of a case into account and do not always impose the death penalty. Convicts could also petition the president for a pardon.
According to Ghana, even if the aforementioned defenses were not convincing to the UNHRC, it should not be held to be in breach of the ICCPR because it is not a party to the Second Optional Protocol to the ICCPR which specifically requires State Parties to abolish the death penalty.
Johnson, who was represented by the London-based Death Penalty Project, noted that although Ghana had not executed persons convicted of murder since 1993, it could exercise that right at any time noting that the presidential pardon was subject to political considerations and was unreliable to guarantee his right to life.
In adopting its views on 27 March, 2014 in Communication No. 2177/2012, the UNHRC acting pursuant to Article 5 (4) of the First Optional Protocol to the ICCPR found that the mandatory death penalty constituted an arbitrary deprivation of life under Article 6(1) of the ICCPR.
Based on this finding, the UNHRC decided not to make a declaration on Johnson’s other claims under Article 7 and Article 14(1) (5). Since the UNHRC found a violation under Article 6(1), which required the provision of an effective remedy under Article 2(3) (a) of the ICCPR, the UNHRC declared that Ghana was to provide an effective remedy by commuting the death sentence imposed on Johnson, adding that Ghana was required to report the action it had taken to give effect to the decision within 180 days from the date of the decision.
The UNHRC also prohibited Ghana from violating the provisions of the ICCPR in the future and to respect and ensure the civil and political rights of persons within its jurisdiction. In addition, the Committee enjoined Ghana to bring its laws in conformity with the ICCPR as well as ensure that its decision is widely disseminated to Ghanaians.
Ghana is a party to the ICCPR and is bound to give effect to the decision of the UNHRC; however, the decision is only of persuasive value when cited in the courts of Ghana. If Ghana continues to delay in giving effect to the decision, it will not be handed punitive sanctions by the UN. However, the UNHRC will continue to hold Ghana accountable in its continued monitoring of the ICCPR and will include this non-compliance in its report to the UN General Assembly, where peer pressure is likely to be intensified until Ghana takes corrective action.
The ICCPR is a multilateral treaty which came into force on 23 March, 1976 and Ghana acceded to it on 7 September, 2000. The State Parties to this treaty have undertaken to “respect and ensure” the civil and political rights of persons within their jurisdiction. Under this treaty, a State Party could bring a complaint against another State Party for violating the political and civil rights of a citizen of the other State Party for the provision of an effective remedy by the UNHRC. The ICCPR does not include a provision that allows individuals to file complaints against State Parties.
However, the First Optional Protocol to the ICCPR includes a provision for receiving individual complaints against State Parties. It came into force on 23 March, 1976, and Ghana acceded to it on 7 September, 2000. Johnson was able to bring the complaint against Ghana because it is a party to the First Optional Protocol to the ICCPR. The Second Optional Protocol to the ICCPR which came into force on 11 July, 1991, requires State Parties to abolish the death penalty but allows State Parties to make a reservation to apply the death penalty in certain cases. Ghana has not ratified the Second Optional Protocol to the ICCPR and could, therefore, apply the death penalty.
The writer is a candidate for a Master of Laws (LL.M) in International and Comparative Law degree at the George Washington University Law School in Washington, D.C. He is also a journalist and two-time Investigative Journalist of the Year in Ghana.
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