Question 1

In criminal law, kidnapping is the unlawful carrying away (asportation) and confinement of a
person against their will. Thus, it is a composite crime. It can also be defined as false
imprisonment by means of abduction, both of which are separate crimes that when committed
simultaneously upon the same person merges as the single crime of kidnapping. The
asportation/abduction element is typically but not necessarily conducted by means of force or
fear. That is, the perpetrator may use a weapon to force the victim into a vehicle, but it is still
kidnapping if the victim is enticed to enter the vehicle willingly, e.g., in the belief it is a taxicab.

Kidnapping may be done to demand for ransom in exchange for releasing the victim, or for other
illegal purposes. Kidnapping can be accompanied by bodily injury which elevates the crime to
aggravated kidnapping (Perri et al, 2009). Abbey’s unlawful confinement following the taking
continued for the next eight days. The kidnapping came to an end only when M was set free by
the police. Court has never defined the word “kidnapping” in the Criminal Code . There is
nothing in the legislative history to suggest that Court intended to abandon the common law
definition of kidnapping which remained an aggravated form of unlawful confinement. It was
aggravated by the additional element of movement, which increased the risk of harm to the
victim by isolating him or her from a place where detection and rescue were more likely. It is
the element of movement that differentiated kidnapping from the lesser included offence of false
imprisonment and made kidnapping an aggravated form of false imprisonment.

This interpretation is consonant with the intention of Court as expressed in the Code, the crime’s
common law origins and legislative history, modern jurisprudence of Ghanaians appellate courts,
and common sense. Court did not intend to restrict the offence of kidnapping to the victim’s
initial taking and movement, while leaving the victim’s ensuing captivity to the comparably less
serious crime of unlawful confinement. Court intended to include the offence of unlawful
confinement in the offence of kidnapping so as to capture, under the crime of kidnapping, the
victim’s ensuing captivity. The penalty scheme reflects Court’s view that kidnapping is a much
more serious offence than unlawful confinement.

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Where an accused — with knowledge of the principal’s intention to see a continuing offence
through to its completion — does (or omits to do) something, with the intention of aiding or
abetting the commission of the ongoing offence, party liability is established. The
well-established principles of s. 21(1) of the Criminal Code party liability apply with equal
force to continuing offences that have been completed in law but not in fact. The crime of
kidnapping continues until the victim is freed, and a person who chooses to participate in the
victim’s confinement — after having learned that the victim has been kidnapped — may be held
responsible for the offence of kidnapping under s. 21(1) of the Code. Here, Baah was a party to
the offence of kidnapping under s. 21(1) of the Code. Smart participated in the confinement of
Abbey.

Accepting that Baah was initially unaware of and took no part in the taking and carrying away of
Abbey, he became aware of it while Baah remained confined against his will and chose
thereafter to take part in the kidnapping enterprise. Baah joined the kidnapping enterprise with
the intent to aid the kidnappers and with the knowledge that Ntim was a victim of kidnapping —
or, at a minimum, he was willfully blind to that fact. Baah took steps, of his own free will, to
assist the kidnappers and further their objectives. For instance, Smith v. United States, 360 U.S.
1 (1959), violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, may be punishable by
death if the victim was not liberated unharmed and if the jury so recommends, petitioner's
prosecution for a violation of that Act by information, instead of indictment, violated Rule 7(a)
of the Federal Rules of Criminal Procedure, which provides that "An offense which may be
punishable by death shall be prosecuted by indictment," and his conviction was invalid -- even
though he waived indictment and it was not alleged or proved that the victim was harmed.
(a) The statute, 18 U.S.C. § 1201, creates the single offense of transporting a kidnapping victim
across state lines, which may be punished by death if sufficient evidence of harm to the victim is
introduced at the trial, and such an offense must be prosecuted by indictment.
(b) The substantial safeguards to the accused provided by the requirement that such an offense be
prosecuted by indictment cannot be eradicated on the theory that noncompliance is a mere
technical departure from the rules.

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(c) Under Rule 7(a), the United States Attorney did not have authority to file information in this
case, and the waivers made by petitioner were not binding, and did not confer power on the
convicting court to hear the case.

Therefore, in conclusion, it can be stated that, all the three parties are liable since they have all
conspired to commit crime of kidnapping and are liable for prosecution.

Question 2

Shoplifting" generally refers to the theft of merchandise from a store or place of business.
Shoplifting is a type of larceny, which simply means taking the property of someone else without
their permission, and with the intent to permanently deprive the owner of the property taken.
Though states may punish shoplifting under their general larceny or theft statutes, many states
have enacted statutes to specifically address shoplifting. States may refer to the crime by
different names, including "retail theft" and "concealment of merchandise."
Each state's laws vary, but generally shoplifting offenses include two basic elements:
1. Willfully concealing or taking possession of items being offered for sale; and
2. The intent to deprive the items' rightful owner (typically the store) of possession of the
items, without paying the purchase price.
Crucially, this means that in most states, one can break shoplifting laws without attempting to get
out of a store with stolen goods. Simply concealing merchandise, inside or outside the store, will
often be enough. One must have the intent to take the item from the store; however, many states
consider the act of concealing merchandise to be evidence of intent.
In addition to hiding an item to avoid paying for it, shoplifting laws also make it illegal to take
actions to avoid paying the full purchase price for an item. This can include altering price tags,
manipulating merchandise, and putting goods into different containers or packaging to avoid
paying all or part of the purchase price.
The act of stealing can be carried out in more than one way. Ama steals by a physical taking; the
theft is generally a larceny theft. First, Ama gain control over the item. Ama moves the item,
which is called asportation. This can be linked to the case of Britt v. Commonwealth, 667 S.E.2d
763 (2008). Although larceny must be a certain distance in many jurisdictions, the asportation for
larceny can be any distance—even the slightest motion is sufficient.Britt v. Commonwealth, 667

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S.E.2d 763 (2008). Control plus asportation can be accomplished by the defendant’s physical act
or by deceiving the victim into transferring the property with a false representation of fact. This
is called larceny by trick. Because larceny requires a physical taking, it generally only pertains to
personal property.

Another way Ama steal property was to bribe the security man. Conversion generally occurs
when the victim transfers possession of the property to the defendant, and the defendant
thereafter appropriates the property transferred. When the defendant steals by conversion, the
theft is generally an embezzlement theft.Commonwealth v. Mills, 436 Mass. 387 (2002).
Embezzlement could occur when the defendant gains possession of property from a friendship or
a family relationship or from a paid relationship such as employer-employee or attorney-client.
Embezzlement does not require a physical taking, so it can pertain to real or personal property.

When the defendant steals by a false representation of fact, and the subject of the theft is a
service, the theft is generally a false pretenses theft. False pretenses can also be used to steal
personal or real property and is very similar to larceny by trick in this regard. What differentiates
false pretenses from larceny by trick is the status of the property after it is stolen, which is
discussed under the harm element of consolidated theft statutes.
In a related case between ALINCIA MEGAN BROWN as the Appellant against [1] The
appellant was charged with, and pleaded not guilty to common law theft (shoplifting) in the
Grahamstown Magistrates’ Court but was found guilty as charged on 15 June 2016. She was
sentenced to pay a fine of R1,000.00 or serve a prison sentence of four months, wholly
suspended for three years on the usual conditions. This appeal is only against the appellant’s
conviction.
[2] The relevant facts giving rise to the charge, the conviction and the present appeal, were
common cause and are briefly the following:
[3] The appellant and a female friend visited Pick ‘n Pay Liquor, a liquor store in Grahamstown
on Saturday, 21 February 2016. After she entered the store, the appellant walked amongst the
shelves and removed two bottles of liquor from the shelves and concealed them in her overalls.
She then proceeded to the exit of the store, passing the till points where payments for purchases
were made, without paying for the two items. At the exit door of the store, the appellant was

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prevented from leaving the store by a security guard posted at its exit. The security guard, Mr
Makhi Mnqanana (spelt ”Maki Nyanana” in the transcript of the record), was an employee of Hi-
Tec Security in Grahamstown (“Hi-Tec”), the security firm engaged by Pick ‘n Pay for security
purposes. He pointed out to her that she had an item belonging to the store on her person and
demanded a till slip from her, as proof that she had paid for the item in question. She told him
that her friend, who was at that stage still inside the store, had the relevant slip. Mnqanana made
it clear that she could not leave the store without a payment slip and that she should fetch it. She
returned to the shelves and removed the bottle of Russian Bear vodka from her overalls and
replaced it on a shelf. Then she proceeded to the exit of the store, again passing the till points. At
the exit door, Mnqanana once again prevented the appellant from leaving. This time he wanted to
see the till slip for the bottle of Southern Comfort liquor still concealed in her overalls and which
she had not removed and replaced along with the bottle of vodka. She had no till slip as proof of
payment for the bottle of Southern Comfort either. A heated argument between the two of them
followed. Mnqanana testified the appellant then wanted to leave the store “by force”. Mnqanana
had also removed the bottle of Southern Comfort from her person. He said that the appellant
appeared to be inebriated. Security personnel of Hi-Tec followed the appellant when she tried to
leave the store, after her altercation with Mnqanana. They prevented her from getting into her
vehicle and accompanied her back into the store. Mnqanana went to the back of the store to look
at the video footage captured by the close circuit television camera installed inside the
store. There he verified, with a colleague, that the appellant had indeed removed the two bottles
of liquor and tried to leave the store without paying for them.
[4] At the trial, Detective Warrant Officer Daniël Britz presented the evidence of the video
footage of the incident as described above. He was not cross-examined at all. The appellant also
did not testify at the trial. Thus the State’s version of events remained unchallenged.
[5] In her unsuccessful application in terms of section 74 of the Criminal Procedure Act (“the
Act”),[1] during argument at the end of the trial, and in the appeal before us, the appellant relied
on the following two grounds in support of her contention that the State had not proved all the
elements of theft:

(a) The charge sheet and the charge leveled against her was defective in that the
owner(s) of the alleged stolen items, or the complainant, referred to in the charge sheet,

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 did not testify, and the State accordingly failed to prove (i) that the witness Makhi
Mnqanana (the security guard), was an agent of the complainant, Pick ‘n Pay Liquor, (ii)
that he was in direct control of the items alleged to have been stolen, and (iii) that he was
therefore in lawful possession of those items;

(b) The appellant did not complete the theft because the complainant or “rightful
owner”, alternatively “the lawful possessor” of the alleged stolen items never lost control
over those items.

[6] In her notice of appeal the appellant also added a further ground, namely that the trial
magistrate failed to consider whether or not the appellant was guilty of attempted theft.
The Alleged Defective Charge Sheet
[7] The charge sheet reads that the alleged stolen items were the “property of/ or in the lawful
possession of Malutti(sic) Mnqanana and/or Pick ‘n Pay”. The appellant argues that since only
Britz and Mnqanana were called as the only State witnesses by the prosecution, the State failed
to prove that either of these two witnesses were the owner of, or in lawful possession of the two
bottles of liquor.
[8] The State, in support of its case relied on section 95(8) of the Act which provides that: “[i]f it
is uncertain to which of two or more persons property in connection with which an offence has
been committed belonged at the time when the offence was committed, the relevant charge may
describe the property as the property of one or other of those persons, naming each of them but
without specifying which of them, and it shall sufficient at the trial to prove that at the time when
the offence was committed the property belonged to one or other of those persons without
proving which of them.”
It can therefore accepted that the person who gave evidence about the theft of the items in
question, and whose evidence was corroborated by a visual recording of the events, was an
employee of the security company (Hi-Tec), which was engaged by the owner of the items (Pick
‘n Pay) to prevent store theft. As the State advocate pointed out, such a defect is cured by section
88 of the Act, which provides that “where a charge is defective for the want of an averment
which is an essential ingredient of the relevant offence, the defect shall, unless brought to the
notice of the court before judgment, be cured by evidence at the trial proving the matter which
should have been averred”.

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Question 3
Chieftaincy is one of the few resilient institutions that have survived all the three phases of Ghana’s
political history during pre-colonial, colonial and post-colonial eras irrespective of the general
attitude towards chiefs, and the institution. Chieftaincy is therefore the bedrock of Ghanaian
society; and consequently the political leadership cannot undermine its credibility without
aggressive political, social and repercussions. According to the Centre for Indigenous
Knowledge and Organizational Development (CIKOD), a local non-governmental organization
that focuses on the development of indigenous institutions in Ghana, 80% of Ghanaians claim
allegiance to one chief or another. Hence, the people consider chieftaincy as the repository of the history
and tradition of Ghana; and the custodian of indigenous traditions, customs and usage. Furthermore, the
institution is considered as the bond between the dead, the living and the yet unborn that occupies the
vacuum created, by the modern partisan political structures, in terms of customary arbitration and the
enforcement of laws at the communal level.

A unique feature of chieftaincy in Ghana is gender. The responsibilities and positions of male and females
are well defined in the institution in accordance with tradition and custom. In northern Ghana, especially
among the Dagomba three skins, namely, Kukulogu, Kpatuya and Gundogu is purposely reserved for
women, hence, the modes of succession are particularized. For example, among the matrilineal Akans, the
top leadership positions and the responsibilities are divided between males and females; and the heir to
the stool is normally a male, but a female ought to nominate him.

Furthermore, positions on the Traditional Councils in southern Ghana, with the exception of executioners,
have male and female equivalents that complement each other in traditional governance. With this
background, it would be appropriate to explain who is a chief in Ghana. The title “chief” has a long
historical trajectory: various colonial and post-independence constitutions and military regimes have
provided various definitions to suit the exigency of the regime, and the time. These changes and re-
definitions are key elements permeating through in the recognition of the custom and tradition.

The Chieftaincy Act, 2008 Act 759, defines a chief as “a person who hailing from appropriate family and
lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or
queen mother in accordance with the relevant customary law and usage”. The Act further sets minimum
qualification for a chief; the candidate must be a person who has never been convicted of high treason,
treason, and high crime or for an offence dealing with the security of the State, fraud, dishonesty or moral

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turpitude. In addition, section 58 of the Act stipulates a hierarchical structure of chiefs recognized in the
nation as:
• Asantehene and Paramount Chiefs
• Divisional Chiefs
• Sub-Divisional Chiefs
• Adikrofo
• Others Chiefs reorganized by the National House (Chieftaincy Act, 2008)
Hence, any person holding up as a chief must belong to one of these categories outlined by the Act to
ensure that appropriate privileges and responsibilities are accorded him or her in accordance with the
Chieftaincy Act.

Why is chieftaincy still so important in Ghana?

Since independence, chiefs have lost virtually all the formal governmental, judicial and land-
revenue management roles they had under colonialism. Nevertheless the status and autonomy of
chiefs is guaranteed under the 1992 Constitution and chiefs remain a significant force. Their
continuing influence rests upon the following economic, socio-cultural and political factors:
• Control over land. Most land holders in Ghana hold their land through forms of
customary tenure.; access to, and use of, land is still controlled or managed in practice
(even if not legally) by chiefs, family heads or in the northern regions . tindaana. In the
big cities of the south, such as Kumasi and Accra, this has become an especially
important source of chiefly power, and it is also highly significant in peri-urban and
commercial farming areas (e.g. cocoa land).
• Family wealth. The most important chiefs of the larger pre-colonial states became
wealthy neo-traditional elite during the colonial period, creating dynasties of wealth and
influence.
• Cultural leadership. Chiefs and other traditional leaders embody deep cultural values and
practices, e.g. the cult of ancestors, fertility of the land, taboos, festivals etc.
• Political representation of the community and community identity. This role has led to the
frequent involvement of chiefs in party politics, either as brokers for the mobilisation of
support, or as powerful actors in their own right.
• Duty to work for the progress of the community. The material progress of a community,
and the maintenance of its peace and unity, is seen as the principal duties of a chief. This

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 is embodied, where a community is united, in the chief’s role as symbolic leader and
patron of development/youth/ hometown associations.

Why chieftaincy should be protect by the 1992 constitution

Articles 271 to 274 of the 1992 Constitution outline the establishment, functions, and jurisdiction
of the Regional and National Houses of Chiefs. However, Article 276 departs from the previous
Constitutions with legal frameworks on chieftaincy which debars chiefs from “active”
engagement in party politics. Consequently any chief who wishes to participate in “active” party
politics must abdicate his or her stool or skin. The objective of this provision is to uphold the
sanctity of the traditional values inherent in Ghanaian culture and vested in the chieftaincy
institution. This, it is hoped, would absolve the institution from the rancor and wrangling
associated with partisan politics.

The Constitution however makes provision for Chiefs to be involved in the management of the
state on issues that protect the custom and tradition of the people. Hence, mandatory
constitutional provisions have been made for their representation on the following:

• Article 89 (2b) states “The President of the National House of Chiefs to be a member of the
Council of State” this is the singular institutional representation on the Council of State.

• Article 153(m) “A representative of National House of Chiefs to be a member a member of the

Prisons Council”

• Article 233 b (1) “A representative of Regional Houses of Chiefs on the Regional Co-
ordinating Councils”

• Article 256 b (i) “A representative of the National House of Chiefs on the Land Commission”

• Article 261 (b) “A Representative of the Regional House of Chiefs on the Regional Land
Commission”

Consequently, chiefs are appointed to serve on various statutory boards and commissions, such
as, the Forestry Commission, National Aids Commission, Constitutional Review Commission,
Ghana National Petroleum Corporation Board, and many more. Chiefs are also appointed on

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emerging situations to serve as on disasters, planning committees, etc. This makes it very
significant for the chieftaincy should be protected under the 1992 constitution.

Reference

Anderson, Ronald A. Wharton’s Criminal Law and Procedure, vol. I. Rochester,

N.Y.: Lawyers Co-operative Publishing Co., 1957.
Bishop, Joel Prentiss. Bishop on Criminal Law, vol. II, 9th ed. by John M. Zane and Carl
Zollmann. Chicago: T. H. Flood and Co., 1923.
Blackstone, William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon
Press, 1769.
Chieftaincy Act, 2008 Act 756, (Accra: Assembly Press, 2008).
Crankshaw, James. The Criminal Code of Canada and the Canada Evidence Act: With Their
Amendments, Including the Amending Acts of 1900 and 1901, and Extra Appendices, 2nd
ed. Montreal: C. Theoret, 1902.
Frempong, A.K. D. Chieftaincy, Democracy and Human Rights in Pre-Colonial Africa: The
Case of the Akan System in Ghana Chieftaincy in Ghana: Culture, Governance and

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 Development. Ed. Irene K. Odotei and Albert K. Awedoba (Accra: Sub-Sahara Publishers,
2006).
Perri, Frank S., Lichtenwald, Terrance G., and MacKenzie, Paula M. (2009). "Evil Twins: The
Crime-Terror Nexus" (PDF). Forensic Examiner. pp. 16–29.
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)
The Constitution of Republic of Ghana (Accra: Assembly Press, 1992)

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