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Opinions Wed, 13 May 2020

The need for a sense of proportion in custodial sentencing

I was very impressed with Prof. Henrietta Mensa-Bonsu’s responses during her appearance before the judicial committee of parliament on her way to assume her seat as a Supreme Court Justice of Ghana. She epitomizes the gold standard of legal interlocution insofar as her answers were sharp and aptly rooted in substantive law, She demonstrated that she is the best in the mix of judges to be appointed to the Supreme Court of Ghana.

I have had several occasions to criticize Ghanaian lawyers for asserting the law from their guts without anchoring their assertions in existing laws or making any proper arguments for changes in existing law. A professor of law was once urging sexual partners to lodge a complaint to the police if they performed oral sex on each other.

There are also strong sentiments articulated by lawyers against homosexuality without any reference to any substantive law that deprives a citizen of his fundamental rights purely on account of being gay. A senior lawyer, instead of making a reasoned argument about the legitimacy of disciplining a lawyer, only alleged that his reinstatement was wrong because the judge who reinstated him could not be wiser than the three supreme court judges that sat on his case and disbarred him.

Thus, when our legal talking heads speak, they ignore the substance of existing law and speak according to their religious beliefs; or according to the fallacy of false authority. This irresponsible assertion of the law used to discourage most of us and gave us the impression that whenever the law is espoused in Ghana, so-called legal luminaries succeed in exposing their ignorance and lack of any continued legal education in their profession. Add this to the fact that our law school missed mention in African rankings, and the notion of our lawyers’ ignorance begins to have some logical impetus.

But Prof. Henrietta Mensa-Bonsu dispelled all my doubts. She was proficient and articulate in comparing USA’s pretrial diversion programs to Ghana’s strict custodial sentencing, noting the latter’s weaknesses and further suggesting that the Ghanaian system could glean some substance from that of the US.

This suggestion strikes at the core of what we choose to do with our potential human resource: Whether to dispose of them unwisely by confining them to the prisons or by giving them alternative opportunities to be reformed and be reintegrated into the society.

By virtue of the work we do here in the USA, we have been involved in plea deals and other pretrial diversion programs which have helped criminal defenders to come out of the system to contribute their quota to the society: We have several instances where here in Travis County, USA, drug offenders, prostitutes and violators of traffic laws have been given the opportunity to attend courses and to have their cases dismissed. In some instances, deferred adjudications have been used effectively as a tool for second opportunities for misdemeanor offenders.

This is by no means to suggest that everything is in perfect shape here in the USA. The typical judicial proceeding is skewed against the minority who constitute a stark majority within the prison system. As we speak, there are still black people freely gunned down in the streets for a song. But If we focus on these injustices, we will glean little from the advanced countries. But we have more needs of our human resources to dispose of too many of them……….

Of Justice Clemence Hornyenuga, my disappointment in him had nothing to do with anything he said in support of the current president This matter is a non sequitur if we consider the Ghanaian traditional leader’s propensity to be hospitable to the point of flattery and hyperbole, If we care to recall the types of encomia and accolades the chiefs have conferred on our politicians, we will understand that this chief was merely huffing and puffing when he said he hoped that Ghanaians may give Akufo-Addo four more years. There was nothing in this to apologize for really. If there is no concrete evidence to call forth for his bias in the past, there will be none to fear for in the future at the Supreme Court.

My disappointment was in his apparent lack of preparedness in trite law. But more importantly, his statement that he was a hard judge giving offenders severe custodial sentences until he got involved in the Justice for All program leaves much to be desired of his stature as a man of justice, If throughout his life, he was unaware of the kind of prison condition into which he condemned people, then exactly what business did he have in sentencing people to a jail in which he had no clue?

The training of our law enforcement personnel ought to involve visits to the prisons, for if they do, they will find that it is a place of cruel and unusual punishment even where the best conditions exist. I have been confined in jail at least four times, two in the USA and the other two in Ghana. My first was when I stole money from my father to buy wisdom from a guy who said he could make me the smartest person in the world.

I was then eight years, but my mother threw me into adult cell to teach me a lesson. In the second instance, I was accused of having bought a bicycle that had been stolen in an armed robbery stint. I was put in the cells at Koforidua with at least twenty-five other people. There was a big bucket full of human excrement right in front of us in which inmates occasionally eased themselves right in front of everybody. The matter turned out to be a clear case of mistaken identity.

Here in the USA, I have been jailed at least two times on flimsy excuses, one by a federal judge for a so-called contempt of which I have no clue. In another instance, I was apprehended at the airport on my way to Ghana and put in jail on a trumped-up charge of which there is no record………

Now I say all these to show that I know the inside-out of the prison system in Ghana and abroad, and that the whimsical incarceration of anybody by any judge ought to be a great burden upon the judge’s conscience because it amounts to a cruel and unusual punishment, especially in Ghana’s filthy prison system.

And yet in Ghana, it is as if incarcerating people is some sort of prurient gig for the judges, I had an occasion to part company with a judge I had known for over thirty years simply because all he was doing was giving ten years jail term for marijuana possession; twenty years for robbery involving Ghc.30 and ten years for stealing motor bike. Now, I know this judge’s background as a humble one and a Christian one. And so where from all this hubris that made him capable of putting in prison drivers’ mates, mechanics and minors who had no assistance of competent counsel and some of whom pleaded guilty?

I have never been a prosecutor before and neither have I ever sat in judgment over anybody in my life. The extent of my legal practice is in defending criminals, or taking proceedings in family or immigration law. To this extent, I agree that I would have a natural compassion for all criminal defendants and other wrong-doers.

But at least I also know that the crime must fit the punishment and vice versa. Thus, there ought to be classes of crimes with their concurrent punishments, a well-constructed sentencing guidelines that take into consideration the totality of the circumstances of a crime. These ought to be balanced by compassion, reasoning and great empathy.

There ought to be some humanness and the protection of the poor and needy in this whole scheme of custodial sentencing. For now, we must empty our prisons and look for alternative and diversionary methods for dealing with those who have offended against the law. We must also keep the prisons clean of filth and dirt because it is a place universally reserved for everybody and anybody.

Samuel Adjei Sarfo, Esq.

Austin, Texas, USA,

May 13, 2020.
Columnist: Dr. Samuel Adjei Sarfo