Following a discussion with a colleague on criminal jurisdiction in Ghana, I did a little research on the topic. Consider this hypothetical scenario: a Ghanaian citizen travels outside Ghana to Country B. While there, he sexually penetrates a child under sixteen years of age who lives in Country B. Note that the entire act takes place outside Ghana. He subsequently returns to Ghana. If the conduct had occurred in Ghana, it would constitute defilement under section 101 of the Criminal Offences Act, 1960 (Act 29). But can the person be prosecuted for defilement in Ghana when the offence was committed entirely in another country? The answer is not as straightforward as you may expect. His Ghanaian citizenship and subsequent return to Ghana did not by themselves give us an answer. It depends on whether Ghanaian law extends jurisdiction to that conduct and context. This is because there are various types of criminal jurisdiction which countries apply differently based on their laws.
Types of Criminal Jurisdiction
Criminal jurisdiction refers to a country’s legal authority to apply its criminal laws, bring offenders before its courts and enforce judicial decisions made by those courts. There are different principles of jurisdiction which are explained below using the hypothetical scenario from the introduction:
- Territorial jurisdiction: This is based on where the offence occurs. Under international law, states have sovereignty over their respective territories. Thus, a country generally has jurisdiction over offences committed within its own territory, regardless of the nationality of the offender or the victim. In our scenario, Country B is the territorial state. Whether the person can be prosecuted there depends on its criminal law, including the applicable age of sexual consent. In addition, the offence need not have the same name as it does in Ghana.
- Nationality jurisdiction (active personality): This type of jurisdiction is based on the offender’s nationality. A country may prosecute its nationals for certain offences committed abroad. In our scenario, Ghana may prosecute the offender if the offence falls under one of those where nationality jurisdiction is extended. Some countries specify which crimes are covered under nationality jurisdiction.
- Passive personality jurisdiction: This type is based on the victim’s nationality. A country may exercise jurisdiction over certain offences committed against its nationals abroad. This means that if the victim in our scenario is a national of Country C but lives in Country B, Country C may have jurisdiction if its law extends jurisdiction to that offence when committed against its nationals abroad.
- Protective jurisdiction: This is based on threats to a country’s security or essential national interests, such as espionage, even where the conduct occurs abroad.
- Universal jurisdiction: It is based on the nature of certain crimes, such as piracy and war crimes, permitting prosecution even without a territorial or nationality connection, but it is subject to applicable legal requirements.
These principles can overlap, so more than one country may have jurisdiction over the same conduct which can complicate who gets to prosecute and when double jeopardy is triggered. Beyond these, international treaties may also require or permit countries to establish jurisdiction over particular offences, referred to as treaty-based jurisdiction. In each case, however, the applicable law determines whether that authority exists and the conditions for exercising it.
The General Rule in Ghana: Territorial Criminal Jurisdiction
Section 56 of the Courts Act, 1993 (Act 459) regulates the criminal jurisdiction of Ghanaian courts. The starting point is territoriality. Under section 56(1), jurisdiction is generally exercisable over offences committed within Ghana, including its territorial waters and airspace, and offences committed aboard ships or aircraft registered or licensed in Ghana. To explain, Ghana’s territory is more than the land itself. It includes its territorial waters, which covers up to 12 nautical miles into the sea measured from the low-water line along the coast, as marked on official charts, and the airspace above both its land and territorial waters. Section 56(1) also expressly covers offences aboard ships or aircraft registered or licensed in Ghana, including when they are outside Ghana’s territory. And so territorial jurisdiction does not depend solely on a person being physically within Ghana’s borders. In addition, territorial jurisdiction is exercisable regardless of the nationality of the offender or the victim.
What if part of the offence was committed in Ghana and part in Country B? Section 56(2) extends territorial jurisdiction to criminal acts committed partly within and partly outside Ghana’s jurisdiction. It provides that a person who does or abets any part of such an act, whether within or outside the jurisdiction, may be tried and punished as though the entire act had occurred within it. This means that where part of the offence occurred in Ghana, it would be treated as if the entire offence occurred in Ghana, and any person who aids the commission of that crime can be prosecuted as if they had committed the crime fully in Ghana. This provision is especially useful for the prosecution of transnational criminal enterprises and digital crimes. Applied to our scenario, if part of the act constituting the offence had occurred in Ghana, section 56(2) could provide a basis for prosecution in Ghana. It could also cover a person who abetted part of that act, even if that person’s participation occurred abroad.
Our scenario however assumes that the act occurred entirely outside Ghana and that no part was abetted from within Ghana. We must therefore consider whether another basis of jurisdiction applies in our laws. Although territoriality is the general rule, Ghanaian law recognises additional grounds for exercising criminal jurisdiction over conduct occurring outside Ghana.
Additional Grounds for Criminal Jurisdiction
Ghanaian Citizens
The starting point is that Ghana uses the nationality principle to some extent. However, Ghanaian citizenship does not, by itself, give Ghanaian courts jurisdiction over every offence a citizen commits abroad. Section 56(3) instead identifies particular circumstances in which a citizen’s conduct outside Ghana may be prosecuted and punished here. These circumstances include acts committed while the citizen is employed in the service of the Republic or a statutory corporation. The circumstances also include murder, specified offences involving public funds or government or statutory-corporation property, and acts committed on the premises of a Ghanaian diplomatic mission. It is important to note that section 56(3)(a) does not expressly require the act to have been committed in the course of the person’s official duties or employment.
Several questions must be asked by a prosecutor. First, is the alleged offender a Ghanaian citizen? Section 56(3) applies specifically to citizens of Ghana. Our scenario satisfies that initial requirement, but citizenship alone does not settle the question. There are other grounds to consider.
Second, was the person employed in the service of the Republic of Ghana or a statutory corporation when they committed the act? Section 56(3)(a) covers a citizen who, while so employed, commits an act abroad that would be punishable as an offence in Ghana. The wording does not expressly require the act to have been committed in the course of official duties or while the person was on an official assignment abroad. For example, a Ghanaian citizen employed in the service of the Republic travels abroad on a private holiday and steals a mobile phone from a shop. The theft is unrelated to the person’s official duties, but it occurs while the employment continues. On a literal reading, section 56(3)(a) appears to cover that conduct. The wording suggests that its reach extends beyond diplomatic postings and official travel to private trips undertaken by citizens who are within the specified employment categories. Applied to our defilement scenario, the prosecutor must therefore establish the alleged offender’s employment status at the time of the act. The fact that the person travelled privately, or acted outside official duties, would not by itself exclude the application of section 56(3)(a).
Third, is the offence specifically stated as triggering jurisdiction in section 56? Two provisions cater for this context. Section 56(3)(b) raises the question whether the act, if committed in Ghana, would constitute murder or an offence under section 183A of the Criminal Offences Act, 1960 (Act 29). Section 183A of Act 29 criminalized defamation of the president but has since been repealed by the Criminal Code (Repeal of Criminal Libel and Seditious Laws)(Amendment) Act, 2001 (Act 602). Next, section 56(3)(c) extends jurisdiction where the act committed abroad constitutes an offence involving or resulting in the misappropriation, dissipation or loss of public funds, government property or property belonging to a statutory corporation, including damage to such property. Our example concerns defilement, so these two subsections do not provide the relevant basis for jurisdiction.
Finally, did the act occur on the premises of a Ghanaian diplomatic mission? Under section 56(3)(d), that location may provide a basis for prosecuting a Ghanaian citizen for conduct that would be punishable as an offence if committed in Ghana. An important distinction here is that there is no restriction on the type of offence. Our scenario does not take place on the premises of a Ghanaian diplomatic mission, so this particular ground of extraterritorial jurisdiction does not apply.
Note that these are not cumulative grounds for Ghana to assert jurisdiction, and so the law does not require all to be present. Once Ghanaian citizenship is established, any one of the circumstances listed in section 56(3) may provide a basis for prosecution.
What if None of These Circumstances Applies?
The inquiry does not end with section 56(3). Section 56(4) brings together several grounds for prosecuting conduct committed abroad, including universal, protective and treaty-based jurisdiction, and these apply to any person, whether Ghanaian or not. Here, the focus is on the nature of the offence and, in some cases, its connection to the Republic. The offences listed include slave trading, piracy, trafficking in women or children, genocide, hijacking, unlawful traffic in narcotics and traffic in obscene publications. The subsection also covers specified acts involving Ghanaian official seals, currency and public documents; offences against the Republic’s property, security, territorial integrity or political independence; unauthorised disclosure of its official secrets; and attacks on international communications systems, canals or submarine cables.
Section 56(4)(l) additionally covers an offence committed by or against a person employed by the Republic or a statutory corporation while acting in the course of employment duties. Unlike section 56(3)(a), this provision expressly includes a connection to official duties and does not require the alleged offender or the victim to be Ghanaian citizens.
Finally, section 56(4)(n) covers offences that a convention or treaty to which Ghana is a signatory authorises or requires to be prosecuted and punished in Ghana wherever committed. A prosecutor must therefore examine whether a relevant treaty covers the particular conduct and how its jurisdictional provisions operate through this subsection and any other applicable legislation. The treaty situation can be complicated by Ghana’s dualist approach to international law. Signature, ratification and domestic implementation are three distinct matters. Article 75 provides for execution (signing) and parliamentary ratification, but ratification does not, by itself, resolve how a treaty’s provisions operate within Ghanaian law. In the case of Republic v High Court (Commercial Division), Accra; Ex parte Attorney-General (NML Capital Ltd and Republic of Argentina, Interested Parties), Date-Bah JSC explained that even parliamentary ratification does not, by itself, incorporate a treaty into Ghanaian law. Appropriate legislation is required to give its provisions domestic legal effect. In addition, any prosecution must also satisfy the legality principle under article 19(11) which states that the offence must be defined, and its penalty prescribed, in written law. A treaty that merely directs states to prosecute certain crimes without a domestic law criminalizing the offence with a stated punishment may not meet the constitutional threshold.
Returning to our example, the prosecutor may examine the facts to determine the circumstances of the conduct. However, defilement alone should not be equated with trafficking merely because the victim is a child. Any reliance on trafficking provisions would require facts establishing that offence. Similarly, the existence of a treaty protecting children does not, by itself, answer whether Ghana may prosecute this particular conduct. If none of the subsections supply a basis for jurisdiction, the prosecutor must consider other alternatives for prosecution.
What Alternatives Exist?
An absence of jurisdiction to prosecute in Ghana does not necessarily mean that the alleged offender escapes prosecution. Country B, where the conduct occurred, would ordinarily have territorial jurisdiction, provided that the conduct constitutes an offence under its law. The person’s return to Ghana would not, by itself, extinguish that jurisdiction. One possible route is extradition which refers to the formal surrender of a person by one country to another for prosecution or enforcement of a sentence. Extradition has its own rules and requires an arrangement or treaty between the parties. Country B could request the person’s extradition from Ghana under the applicable legal framework. Ghana’s Extradition Act, 1960 (Act 22) provides procedures for surrender, and its First Schedule includes offences under section 101 of Act 29. Extradition would nevertheless depend on the applicable arrangements, the supporting evidence and satisfaction of the relevant statutory requirements and safeguards.
The proceedings involving Ghanaian musician Deeba (Richard Nimoh) is an example of how extradition may operate in such circumstances. According to a news report, in 2013, he appeared before the Osu District Magistrate’s Court following a UK request concerning allegations of sexual offences committed against a child in the United Kingdom. The proceedings concerned his surrender to face trial there. The court found that the requirements for extradition had been satisfied and committed him to custody pending his surrender.
Ghanaian authorities may also assist proceedings in Country B through lawful cooperation, including the provision of evidence and mutual legal assistance under the Mutual Legal Assistance Act, 2010 (Act 807) and the Extradition Act. Section 27 of Act 22, for example, provides for taking evidence in Ghana for certain foreign criminal proceedings. Such assistance supports prosecution in the country with jurisdiction; it does not independently give Ghanaian courts jurisdiction to try the underlying offence.
Thus, regardless of the context, the options are Ghana prosecuting the person itself and Ghana helping another country bring the person to justice. The good news is both offer routes to accountability. The intricacies created by our hypothetical scenario illustrate why a prosecutor must establish jurisdiction at the outset.
Conclusion
To summarize, a Ghanaian citizen’s return home after committing an offence abroad does not automatically give Ghanaian courts jurisdiction to prosecute. It depends on several factors including the offence, the person’s nationality and employment status, the circumstances of the conduct and the applicable law. In our defilement scenario, a prosecutor must examine these matters before deciding whether proceedings can lawfully be brought in Ghana. Where Ghana lacks jurisdiction, extradition and cooperation with the country where the offence occurred may still provide routes to accountability. Nevertheless, the apparent absence of a general nationality-based provision covering defilement raises a policy question: should Ghana’s law expressly allow the prosecution of citizens who commit such offences abroad, regardless of their employment status? Protecting children from sexual abuse warrants a clear answer.
