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

The Juvenile Justice Act, 2003 (Act 653) was enacted to establish a juvenile justice system designed to protect the rights of juveniles, provide an appropriate and individualised response to juvenile offending, and make provision for the treatment of young offenders. The underlying philosophy of the legislation is therefore not purely punitive. It seeks, among other things, to protect young persons in conflict with the law and facilitate their rehabilitation and reintegration into society.

However, a careful examination of the statutory definitions and the judicial interpretation of those provisions reveals a significant difficulty in the treatment of persons between eighteen and twenty-one years. The law appears, at first sight, to contemplate the rehabilitation of young offenders within the juvenile justice framework. Yet, in practice, the protection afforded to this age group depends largely upon the nature of the offence committed and, more particularly, whether the applicable sentencing provision gives the court an option of imposing a fine.

This creates what may appropriately be described as a grey area in Ghana’s juvenile justice system.

Who is a Juvenile and who is a Young Offender?

Act 653 principally identifies two categories of persons for whom the juvenile justice system was created: juveniles and young offenders.

A juvenile is a person under eighteen years who is in conflict with the law. A young offender, on the other hand, is a young person who has been convicted of an offence for which the court has power to impose imprisonment for one month or more with the option of a fine.

The Act, however, also introduces a third category, namely a young person. A young person is a person who has attained eighteen years but is below twenty-one years. Thus, a person between eighteen and twenty-one years may fall within the statutory description of a young person, but that does not necessarily mean that he or she qualifies as a young offender for purposes of the rehabilitative provisions of Act 653.

The distinction appears technical, but it has profound consequences for sentencing. The important question is therefore not merely how old is the offender? The more important question is what offence has the offender been convicted of and what sentencing options does the law provide for that offence?

The Supreme Court Clarifies the Position

This question came before the Supreme Court in the case of Abu Mohammed v The Republic, Criminal Appeal No. J3/03/2023, judgment delivered on 17 April 2024.

In a unanimous decision, the Supreme Court clarified that a person between eighteen and twenty-one years does not become a “young offender” merely by virtue of his or her age. Rather, the person becomes a young offender only where he or she is convicted of an offence for which the court has statutory power to impose a sentence of one month or more with the option of a fine.

The Supreme Court stated, in substance, that a person aged eighteen but below twenty-one is a young person, and that such a person becomes a young offender only when convicted of an offence for which the sentencing regime provides the option of a fine. Where the offence does not carry a fine option, the person remains a young person and does not become a young offender. The decision is significant because it establishes that the status of a young offender under Act 653 is determined not simply by age, but by a combination of age and the sentencing regime applicable to the offence.

Consequently, three relevant categories emerge under the juvenile justice framework:

1. Juveniles – persons below eighteen years in conflict with the law;
2. Young offenders – persons aged eighteen to below twenty-one who are convicted of offences carrying a custodial sentence with an option of a fine; and
3. Young persons – persons aged eighteen to below twenty-one who commit offences which do not carry a fine option. persons aged eighteen to below twenty-one.

The Consequence for Serious Offences

The difficulty becomes particularly apparent where a person between eighteen and twenty-one commits a serious offence for which the law does not provide an option of a fine. In such circumstances, although the offender is still very young, the statutory definition prevents that person from being treated as a “young offender” under Act 653. The consequence is that the rehabilitative mechanisms associated with the juvenile justice system may not be available to that offender merely because the offence falls outside the statutory definition of a young offender.

This creates a rather curious situation. Two persons may both be nineteen years old and may have very similar personal circumstances, levels of maturity and prospects for rehabilitation. Yet, depending upon the offence of which they are convicted, one may fall within the rehabilitative framework of Act 653 while the other may be dealt with under the ordinary adult criminal justice regime. The distinction is therefore based substantially upon the sentencing structure of the offence rather than the developmental age of the offender.

The Case of Nelson Makafui Fiakpui v The Republic

The practical consequences of this distinction can also be seen in Nelson Makafui Fiakpui v The Republic, Criminal Appeal No. H2/01/2022, judgment delivered on 11 March 2022.

The appellant was nineteen years old at the time of the offence. He was a trader who, together with two accomplices, attempted to rob the complainant of his motorbike. The group was armed with a knife and a gun and threatened the complainant. The complainant’s phone and GH¢50.00 were taken before the offenders fled after gunshots were heard. The Circuit Court convicted the appellant of robbery and sentenced him to twenty years’ imprisonment with hard labour.

On appeal to the High Court, the appellant sought, among other things, the application of the Juvenile Justice Act on account of his age. Although the High Court reduced the sentence to fifteen years, it declined to apply the rehabilitative provisions of Act 653.

The matter subsequently went to the Court of Appeal. The appellant argued that the fifteen-year sentence was harsh and excessive, particularly having regard to his status as a young offender. The Court of Appeal dismissed the appeal. The reason is instructive. Robbery, in the circumstances relevant to the case, did not carry an option of a fine. Consequently, the appellant could not be characterised as a “young offender” within the meaning of Act 653 and was therefore subject to the ordinary provisions applicable to adult offenders.

The case demonstrates the practical impact of the statutory definition: being nineteen years old does not, by itself, guarantee the protections or rehabilitative treatment contemplated under Act 653.

The Rehabilitation Question

The philosophy underlying juvenile justice is that young offenders should, where appropriate, be given an opportunity to reform rather than being exposed unnecessarily to the full weight of the adult penal system. This philosophy recognises that young persons are still developing in terms of maturity, judgment and decision-making. Rehabilitation, education, counselling, vocational training and reintegration may therefore produce better long-term outcomes than lengthy incarceration.

Act 653 contains mechanisms reflecting this rehabilitative philosophy, including the use of remand homes and detention centres and other measures directed towards the rehabilitation of young offenders. The Act, for example, makes provision for the temporary detention of juveniles or young persons in remand homes and contains provisions concerning detention at a centre. Yet the statutory definition of “young offender” means that access to these mechanisms may depend upon the availability of a fine option for the offence.

This raises an important policy question:

Should the availability of rehabilitation for a person aged eighteen to twenty years depend upon whether the offence committed carries a fine option?

If the principal justification for special treatment is the age and developmental stage of the offender, it may appear difficult to justify a system under which a nineteen-year-old convicted of one offence receives the benefit of a rehabilitative regime while another nineteen-year-old convicted of a more serious offence is automatically excluded from that classification.

A Legislative Anomaly

The difficulty is further demonstrated by the internal language of Act 653 itself.

The Act contains provisions which refer to a “juvenile or young person” at one point and then proceed to use the expression “juvenile or young offender” in subsequent subsections. This creates uncertainty as to whether the provisions were intended to apply to all persons aged eighteen to twenty years or only to those who satisfy the narrower definition of “young offender.”

The difficulty becomes more pronounced when the provisions of the Act are considered alongside section 19(4), which provides that where it appears to the juvenile court that a person brought before it has attained eighteen years, that person is, for purposes of the Act, deemed not to be a juvenile and becomes subject to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).

The result is an apparent tension within the statutory framework.

On the one hand, Act 653 expressly refers to young persons and makes provisions concerning them. On the other hand, the statutory structure and the decision in Abu Mohammed v The Republic suggest that a young person who does not satisfy the definition of a young offender does not enjoy the same status under the juvenile justice system.

This raises the broader question whether young persons between eighteen and twenty-one can properly be said to form part of the juvenile justice system at all.

Should Youth be a Mitigating Consideration?

The present statutory position does not mean that the age of an offender between eighteen and twenty-one is entirely irrelevant to sentencing. A court retains judicial discretion in sentencing and may take relevant personal circumstances into account where the law permits. However, this is materially different from having a statutory rehabilitative regime specifically designed for young offenders. The distinction matters because a general sentencing discretion does not necessarily provide the same protection as a specialised system based on rehabilitation, education, vocational development, counselling and reintegration.

The issue, therefore, is not whether young persons who commit serious offences should be exempted from punishment. Rather, it is whether punishment and rehabilitation should be mutually exclusive. A young person who commits a serious offence may require punishment, public protection and accountability. At the same time, the offender may also require education, psychological support, vocational training and structured rehabilitation. The objective should be to ensure that the sentence serves not only the immediate purpose of punishment but also the longer-term objective of preventing reoffending.

The Need for Legislative Review

The present statutory framework creates an age-based anomaly that deserves legislative attention. If the policy objective is to rehabilitate young persons who are still within the eighteen-to-twenty-one age bracket, then the law should provide a clearer and more coherent basis for determining when special treatment applies.

The present approach makes the sentencing provision attached to the offence decisive. This may produce the unintended result that the more serious the offence, the less access the young offender has to the specialised rehabilitative framework. That may be understandable from a purely punitive perspective. However, from the perspective of modern penal policy, the seriousness of the offence should not necessarily extinguish the rehabilitative potential of the offender.

A reformed framework could, for example, permit courts to consider the offender’s age, maturity, previous record, circumstances of the offence, prospects of rehabilitation and the protection of society, while still imposing proportionate punishment for serious offences. Such an approach would avoid treating youth as either a complete defence or as an irrelevant circumstance.

Conclusion

The Juvenile Justice Act, 2003 (Act 653) represents an important shift from a purely punitive approach towards rehabilitation and the protection of young persons in conflict with the law. However, the distinction between a juvenile, a young offender and a young person, particularly following the Supreme Court’s decision in Abu Mohammed v The Republic, has exposed a significant gap in the statutory framework.

The position is now clear that a person aged eighteen to below twenty-one is not automatically a “young offender.” The person must also have been convicted of an offence for which the court has power to impose imprisonment for one month or more with the option of a fine. The practical consequence is that a nineteen-year-old convicted of an offence carrying a fine option may fall within the rehabilitative framework of Act 653, while another nineteen-year-old convicted of a serious offence carrying no fine option may be treated under the ordinary adult criminal justice regime. This presents a difficult question for Ghana’s penal policy: should the rehabilitative treatment of a young person depend upon the availability of a fine option for the offence committed?

The answer requires a careful balance between accountability, proportionality, public safety and the recognition that young offenders have significant potential for reform. The challenge for the legislature and the courts is therefore not simply to determine how severely young offenders should be punished, but how Ghana’s criminal justice system can ensure that even where punishment is necessary, rehabilitation is not lost. The ultimate objective of criminal justice should be not merely to punish the offender for what he has done, but, where possible, to transform the offender into a person who will not return to crime. That is the promise of rehabilitation. It is also the unfinished task of Ghana’s juvenile justice system.

Download a copy of Ghana’s Juvenile Justice Act here.

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

Subscribe to and follow Criminal Law Blog Ghana for more practical insights into Ghana’s criminal justice system.