By: Her Worship Georgette Carmel Lutterodt, Esq., Her Worship Anastacia Yaa Agyeiwaa Karimu, Esq. and Her Worship Dromo Afarley Djarbeng, Esq.

The Principle of Legality in Ghanaian Criminal Law

A foundational principle of Ghana’s criminal jurisprudence is the doctrine of legality: nullum crimen, nulla poena sine lege. Simply put, no person may be convicted of a crime unless the conduct complained of is expressly declared an offence by law, and no punishment may be imposed unless it is prescribed by law. This principle has been consistently affirmed by the courts. In Republic v. Adjei [1976] 2 GLR 389, the Supreme Court reiterated that criminal liability and punishment must be grounded in clear statutory authority.

Accordingly, criminal statutes must not only define offences but must also indicate the applicable punishment, whether expressly or by necessary implication.

Classification of Offences under Ghanaian Law

It is trite law that offences in Ghana are classified into three categories: first degree felonies, second degree felonies, and misdemeanours. While more recent enactments often specify the punishment within the offence-creating provisions, many older statutes—including the principal criminal statute, the Criminal Offences Act, 1960 (Act 29)—frequently omit express sentencing provisions.

Where such omissions occur, recourse must be had to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), particularly sections 296 and 297.

Section 296 of Act 30: General Rules on Sentencing

Section 296 of Act 30 sets out general sentencing rules to be applied where the punishment for an offence is not specified by the enactment creating the offence. The section provides as follows:

1. First Degree Felonies – Where an offence is declared by law to be a first degree felony and no punishment is specified, a person convicted is liable to imprisonment for life or any lesser term.
2. Second Degree Felonies – Where an offence is declared to be a second degree felony without a specified punishment, the convicted person is liable to imprisonment for a term not exceeding ten years.
3. Felonies Without Degree Specification – Where an offence is declared to be a felony without indicating whether it is of the first or second degree, and no punishment is specified, it is deemed to be a second degree felony.
4. Misdemeanours – Where an offence is declared to be a misdemeanour and no punishment is specified, the convicted person is liable to imprisonment for a term not exceeding three years.
5. Hard Labour – Every term of imprisonment shall be with hard labour, unless the court otherwise directs in the case of a sentence of less than three years.

These provisions appear, on their face, to impose custodial sentencing as the default consequence where punishment is not expressly stated.

Section 297 of Act 30: Power to Impose Fines

Section 297 empowers courts to impose a fine in addition to or in lieu of imprisonment where the accused is convicted of:

• a felony,
• a misdemeanour, or
• an offence punishable by imprisonment,

and the sentence for that offence is not fixed by law.

Under subsection (2), where no specific limit on the fine exists, the amount is left to the court’s discretion but must not be excessive. Subsections (3) and (4) govern default imprisonment where a fine is unpaid, with the period of imprisonment not exceeding three years for felonies or misdemeanours and twelve months in other cases.

This proviso introduces significant interpretive difficulty when read alongside section 296.

The Practical Difficulty under Act 29

A review of Act 29 reveals the scale of the problem:

• 25 offences are classified as first degree felonies;
• 44 offences are classified as second degree felonies;
• 133 offences are classified as misdemeanours.

Out of the 133 misdemeanours, only 34 offences expressly prescribe a punishment, typically a fine. The remaining 99 misdemeanours merely state that the conduct constitutes a misdemeanour, without more.

If section 296 provides that a misdemeanour attracts imprisonment of up to three years where no punishment is specified, a critical question arises: when, and in what circumstances, is section 297 intended to apply?

While appellate authority specifically reconciling sections 296 and 297 is limited, the Supreme Court in Cobbina v. Republic [2020] GHASC 4 provides valuable guidance on the application of section 297 in practice.

In Cobbina, the Court of Appeal considered the legality of default imprisonment imposed following non-payment of a fine. The court clarified that under section 297:

• A trial court may impose a fine in addition to a custodial sentence or in lieu of imprisonment where the offence is punishable by imprisonment and the sentence is not fixed by law.
• The court upheld the right of the trial court to impose a fine alongside imprisonment in appropriate cases.
• Crucially, the Appeal Court corrected an erroneous default period imposed by the trial court: default imprisonment attendant on unpaid fines must not exceed three years for felonies or misdemeanours under the Act.

The Cobbina decision demonstrates that section 297 is actively applied as a discretionary sentencing tool in the courts, particularly in cases where the offence-creating statute omits an express punishment.

Additionally, recent High Court judgments such as Republic v Ali (NRTLHCCC3124) 2024 GHAHC 331 (29 April 2024) show trial courts invoking section 296 to impose custodial sentences for offences under Act 29 where the applicable punishment is unspecified. For example, in a 2024 High Court decision, the trial judge applied section 296(2) to determine the maximum custodial term available for the offence of “causing harm”—a second degree felony with no punishment specified in Act 29. This illustrates the practical operation of section 296 in ensuring statutory sentencing continuity.

The Interpretive Tension Between Sections 296 and 297

Two competing schools of thought have emerged in judicial and academic discourse:

The Expansive Interpretation

Under this view, once an offence-creating provision does not specify a punishment, the court is at liberty to apply either section 296 or section 297. Accordingly, the court may choose between a custodial sentence and a fine, depending on the circumstances of the case.

The Restrictive Interpretation

The opposing view holds that section 296 itself “fixes” the punishment by providing default custodial terms for each category of offence. On this reasoning, once section 296 applies, the sentence is no longer “not fixed by law,” and section 297 is thereby excluded—particularly in relation to misdemeanours under Act 29.

This interpretive conflict is compounded by the use of the word “shall” in both sections, which ordinarily connotes mandatory application, though judicial authority recognises that “shall” may be construed as directory rather than imperative in appropriate circumstances.

Despite scholarly debate, the law in practice appears to permit section 297 to operate alongside section 296 where the court exercises its discretion to fine in appropriate cases—consistent with the approach endorsed in Cobbina.

Consequences for Sentencing Uniformity

The absence of authoritative appellate guidance has resulted in a lack of uniformity in sentencing practice. Some trial courts take the view that a custodial sentence is mandatory for misdemeanours under section 296. Others adopt a more flexible approach, invoking section 297 to impose fines where the offence-creating provision is silent on punishment.

This divergence undermines predictability and consistency in sentencing—core values of any credible criminal justice system.

Conclusion

The tension between sections 296 and 297 of Act 30, particularly as applied to offences under Act 29, exposes a significant doctrinal gap in Ghanaian sentencing law. Until the appellate courts definitively pronounce on the proper reconciliation of these provisions—or Parliament intervenes with legislative clarification—trial courts will continue to adopt divergent approaches, with troubling implications for equality before the law.

A principled resolution of this issue is therefore both timely and necessary.

Note: The authors are magistrates in Accra, New Edubiase, and Sekondi.