Introduction

The passage of the Community Service Bill by Parliament is one of the most significant sentencing reforms in Ghana’s criminal justice system in recent decades, comparable in significance to the repeal of the death penalty for certain offences. By introducing community service as an alternative to imprisonment for specified categories of offences, Parliament has demonstrated a willingness to embrace rehabilitation, social reintegration and restorative approaches to sentencing while reducing unnecessary reliance on custodial punishment. The reform has attracted widespread public interest and has been welcomed as an important step towards modernising Ghana’s sentencing framework.

As with many important legal reforms, public discussion has focused on the broad policy objective, including its potential to reduce prison overcrowding and promote post-conviction rehabilitation. This article draws attention to an equally important aspect of the Bill: how sentencing decisions are intended to be made under the Bill and the role judicial discretion continues to play.

Judicial Discretion Under the Bill

Every sentencing decision involves two important considerations. The first is the law enacted by Parliament, which determines the range of punishments available for a particular offence and any minimum or maximum sentence that may be imposed. The second is judicial discretion, which allows the court to decide the most appropriate sentence within those legal limits after considering the circumstances of the offence and the offender. Where Parliament does not prescribe a minimum or maximum sentence, the court enjoys a wider measure of discretion in determining the appropriate punishment.

Consider a law that provides that a convict is liable to a term of imprisonment not exceeding three years. Parliament has fixed the maximum sentence, but it has not prescribed how much imprisonment must be imposed in every case. Depending on the facts, one convict may receive six months’ imprisonment, another eighteen months, and another three years. If the law also permits a fine, the court may conclude that a fine is the more appropriate sentence. The statutory framework remains the same, but judicial discretion allows the court to determine the sentence that best fits the particular case.

The 2026 Community Service Bill follows the same principle. A careful reading of the Bill demonstrates that Parliament has not displaced judicial discretion. Instead, it has introduced community service as a new sentencing option while preserving the power and responsibility of judges to determine whether it is appropriate in the circumstances of each case.

The starting point is section 39 of the Bill. It provides that where a court convicts a person of a minor offence or another offence specified under section 40, the court shall, in passing sentence, have regard to the performance of community service as an alternative punishment. The use of the word “shall” immediately demonstrates that Parliament has imposed a mandatory obligation on sentencing courts.

That obligation, however, should not be misunderstood. The mandatory obligation is not to impose community service. Rather, it is to consider community service. Parliament did not provide that a court “shall make a community service order” or that a court “shall sentence the convicted person to community service.” Instead, it used the phrase “shall have regard to” which requires every sentencing court to turn its mind to community service where applicable.

Beyond section 39, offence eligibility is still not an entitlement to a community service order. The structure of the Bill reinforces this interpretation. Before making a community service order, section 43 requires the court to obtain a social enquiry report from a probation officer. That report examines matters including the circumstances of the offence, the character and antecedents of the convicted person, and the person’s health status. The legislation therefore requires sentencing decisions to be informed by evidence beyond the submissions of the prosecution and the defence. For adult criminal proceedings in Ghana, this represents a significant development in sentencing practice.

The court must then consider the factors set out in section 44 before determining whether a community service order is appropriate. These include the need to protect the public, the prevalence of the offence, the likelihood of reform and rehabilitation, whether the offender is a habitual offender, whether the offender understands the nature of the order, whether any reparation has been made to the victim, and whether the offender has a surety. These represent recognition that sentencing requires the careful balancing of multiple competing considerations.

Only after these steps have been completed, and the court is satisfied that the statutory conditions have been met, may the court make a community service order under section 45. Read as a whole, the Bill makes one thing clear: Parliament has made consideration of community service mandatory, but it has not made the imposition of community service mandatory.

In my view, the most significant contribution from the framers of this law is that Parliament deliberately chose mandatory consideration instead of mandatory imposition because it wanted to influence judicial decision-making without fettering judicial discretion. It requires courts to consider community service, obtain objective information through a social enquiry report, evaluate prescribed statutory factors and only then decide whether a community service order should be made. This demonstrates that Parliament intends community service to become a genuine sentencing option in all appropriate cases.

Guidance from Existing Sentencing Jurisprudence

A useful comparison may be drawn with the constitutional requirement in article 14(6) which requires sentencing courts to take into account the period an accused person has spent in lawful custody before conviction when imposing a custodial sentence. In both instances, the law requires the sentencing court to consider a specific factor. The obligation is one of consideration, and does not necessarily dictate the sentence that is ultimately imposed.

This naturally gives rise to several important questions. Could a failure to consider community service where section 39 applies become a ground of appeal against sentence? If so, how is an appellate court to determine whether that statutory obligation has been discharged? Must a sentencing judge expressly indicate in every judgment that community service has been considered before deciding whether to impose another sentence?

Although the Community Service Bill is new, Ghanaian sentencing jurisprudence already provides some guidance on how appellate courts approach mandatory sentencing considerations. In Henry Kwaku Owusu v Republic [2020] Crim.LR 54, the Supreme Court held that compliance with the constitutional obligation to take into account time spent in lawful custody must be apparent from the record, either expressly or by necessary implication. Importantly, the Court also emphasised that taking time spent in lawful custody into account does not compel the imposition of the minimum sentence. Rather, the trial court retains discretion to impose an appropriate sentence provided the judgment demonstrates that the constitutional requirement has been considered.

Although section 39 of the Community Service Bill has not yet been interpreted by the appellate courts, the provision raises a similar procedural question. If Parliament has imposed a mandatory obligation to have regard to community service, should the record disclose that the sentencing court has complied with that obligation? Whether the courts will adopt a similar approach remains to be seen. However, the Supreme Court’s reasoning in relation to Article 14(6) illustrates how mandatory sentencing considerations can coexist with judicial discretion.

A Judicial Practice Worth Adopting

The foregoing analysis suggests that there is a justifiable basis for sentencing courts to expressly record that community service has been considered before deciding whether to impose another sentence. Such a practice would serve several important purposes.

First, it would demonstrate fidelity to Parliament’s intention that community service form part of the sentencing exercise where section 39 applies. Secondly, it would facilitate appeals by enabling an appellate court to determine whether the statutory obligation has been complied with. Thirdly, it would contribute to the development of Ghana’s sentencing jurisprudence by showing the considerations that influenced the court’s decision in imposing any sentence.

Recording that community service has been considered does not require a sentencing court to impose it. As the Supreme Court observed in relation to Article 14(6), mandatory sentencing considerations can coexist with broad judicial discretion. A court remains free to conclude that imprisonment, a fine or another lawful sentence is more appropriate, provided that the judgment demonstrates that community service was duly considered.

Conclusion

The true significance of section 39 lies not merely in creating community service as an alternative punishment, but in making it an integral part of the sentencing process. By expressly recording that community service has been considered, sentencing courts would reinforce Parliament’s intention while promoting transparency, facilitating appellate review and strengthening public confidence that every lawful sentencing option has been properly evaluated before a person’s liberty is taken away. As Ghana’s community service regime develops, this simple practice would demonstrate that judicial discretion has been exercised in the very manner the Bill envisages.

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