PUNISHMENT

It would be recalled that one essential element of a crime is the ‘punishment’ element. In the case
of Proprietary Articles Trade Association v A.G for Canada (1931) AC 310, the Supreme
Court in Canada stressed on this fact. In fact, it has been argued that without the criminal
sanctions (punishment), all statutory prohibitions become mere moral codes. It is therefore
impossible to study criminal law without understanding what constitutes ‘punishment’. Why
should we punish people? Are all forms of punishment justified? What are the underlying
principles governing punishment?

1. Meaning of Punishment:
It’s derived from the Latin word, Poene. It can be defined as the act of inflicting suffering, pain
or any unpleasant consequences on another lawfully, by a person or agency in authority, on an
offender, for the commission of a prohibited act. This definition brings to the fore some basic
elements of punishment as generally viewed by society. These are;
a. Infliction of pain, suffering or some very unpleasant result is the ordinary man’s
conception of punishment. This means that when persons are deemed to have committed a
crime, the general expectation of people is that once a person is deemed to have fallen foul of the
law, he should be made to suffer. If he is required to do anything that would not entail suffering,
then it is not punishment.
b. The act of punishment is something that is also intentionally inflicted upon a person for
engaging in the prohibited act. This is to be distinguished from pain which is inflicted on
another accidentally. A common example would be the act of accidentally locking a person in a
room. It is contrasted with a person who has been deliberately confined in a room for engaging in
act that is not allowed. While the latter would be regarded as a punishment, the former may not
be strictly speaking regarded as a punishment.
c. The act of punishment is not self-imposed but rather imposed by another person or
agency. That is why a person who decides to inflict pain on himself for whatever reason is not
regarded as undergoing punishment in the context of criminal law. It is only when the State is the
one inflicting the pain that it would lawfully be regarded as a punishment.
d. The person or agency imposing the punishment is expected to be in a superior position to
the one suffering the punishment. This brings into focus the authority of the state which is seen
as superior to the one suffering the punishment. One’s peers can therefore only punish you only
if they are doing so under the authority of the State.
e. The pain being inflicted or the unpleasant consequences should be as a result of the
offender having engaged in a prohibited act. If the person who suffers the unpleasant
consequences has not engaged in a prohibited act, the pain or the unpleasant consequences
wouldn’t be regarded as a punishment. Probably terms like ‘maltreatment’, ‘torture’ and

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‘brutality’ would better describe the ordeal that such a person may have gone through. The issue
of ‘Punishment’ has been part of society from the days of old. People who were deemed to have
committed acts that were prohibited by society were subjected to various forms of punishment.
This included decapitation, hanging, public humiliation, ridicule, flogging, stoning, mutilation,
chopping of hands or fingers, pillory, branding, and the cutting off the tongues of liars and
perjurers.
Some of these forms of punishment even had biblical verses in justification. Examples were;
(i) Death -Numbers 35:30
(ii) Hanging- 2 Samuel 21:9
(iii) Stoning- Deuteronomy 22:24
(iv) Burning- Leviticus 20:14
(v) Restitution(Compensation) -Numbers 35:32
(vi) Confiscation of Property- Ezra 7:26
(vii) Imprisonment- Judges 16:21; 2 Kings 17:4; Jeremiah 32:2
Punishment is society’s mode of condemning acts that are prohibited. The forms of punishment
vary from society to society. Over the years, many of these forms of punishments have been
abolished. New forms of punishments have also evolved. But punishment as a whole has not
been abolished.

2. Reasons for Punishment

Various reasons are given for the imposition of punishment. The main ones are
a. To uphold the supremacy of the law
b. To encourage citizens to obey the law and deter crime
c. To help the offender to reform
d. To appease the victim of the crime
e. To protect the society.
In reality, there has not been any alternative to ‘punishment’, when considering ways of ensuring
compliance.

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3. Forms of Punishment
Although the forms of punishment would vary from society to society, currently the only
recognized forms of punishment allowed under our law and which are dispensed by our courts
are;
a. Death Penalty:
Offences which attract the death penalty are restricted to very few crimes which are regarded as
very serious and so should equally attract the highest form of punishment. These are high
treason, treason, murder and genocide. As an example, Section 46 of Act 30 reads;
“A person who commits murder is liable to suffer death.”

b. Term of Imprisonment:
Various offences have their own forms of terms of imprisonment explicitly stated in the statute.
But where these are not expressly stated, Section 296 of Act 30 helps to clarify them. First
degree felonies generally attract up to life imprisonment, second degree felonies up to 10 years’
imprisonment, and misdemeanour up to 3 years.

c. Fines:
These are also regulated by statute. The amount of money to be paid as fines are regulated by
statute. A District court cannot impose a fine exceeding GHC 6000.
What is a penalty unit?
This is a system of unit used to compute fines after a person has been found guilty in court and as
his punishment or as part of the punishment, he is ordered to pay a fine. This is done by
multiplying the value of one penalty unit by the number of penalty units prescribed for the
offence. In Ghana, this is regulated by the FINES (PENALTY UNITS) ACT - 2000 (ACT
572).
The Act mandates that all fines are to be expressed in penalty units. The Attorney general by a
Legislative Instrument (L.I), may from time to time amend the value of a penalty unit. Each
penalty unit is currently valued at GHC12. A legislative instrument is a document in writing that
is of a legislative character; and that is made in the exercise of a power delegated by the
Parliament.
Fines can be paid by instalment.
Section 318 (3) of Act 30 reads;
“Where an order for the payment of money is made, on non-recovery of which
imprisonment may be awarded, and the money is not paid forthwith, the Court

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 may require the person ordered to make the payment to enter into a bond as
prescribed under subsection (1), and in default of so doing may at once pass
sentence of imprisonment as if the money has not been recovered.”

d. Detention:
Juveniles who have been convicted of serious offences and ought to be imprisoned are sent over
to detention centers (correctional centers) and not into prisons.
(Section 39 of Juvenile Justice Act, 2003- Act 653)

e. Recognizance for Keeping the Peace:

The court is given a discretion to bond persons to be good behaviour or to keep the peace for a
fixed period.
Section 299(1) of Act 30 reads;
“The Court before which a person is convicted of an offence other than an
offence for which the sentence is fixed by law may, according to the
circumstances of the case, order that person in place of or in addition to any
other punishment, to enter into recognisance, with or without sureties, for
keeping the peace and to be of good behaviour.”
Take note however that under section 23 of Act 30, the District Magistrate is authorized to
order persons suspected of taking steps to commit an offence, by concealing himself to enter into
a bond to be of good behaviour.

f. Absolute or Conditional Discharge

After an accused person, has been convicted, the court may come to the conclusion that
considering the nature of the offence or the character of the convict into consideration, it would
not be prudent to imprison or place him on probation. The court may order him to be discharged
conditionally or not. Sometimes he is discharged with a caution.
Section 353(1) of Act 30 reads;
“Where a Court by or before which a person is convicted of an offence which is
not an offence the sentence for which is fixed by law is of opinion, having
regard to the circumstances including the nature of the offence and the
character of the offender, that it is inexpedient to inflict punishment, and that a
probation order is not appropriate, the Court may make an order discharging
that person absolutely, or where the Court considers it fit, it may make an order
discharging that person subject to the condition that, that person does not

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 commit an offence during a period, not exceeding twelve months from the date
of the order, specified in the order.”

g. Probation
The court may on account of the youth, character or nature of the offence or by the wording of a
statute order that a convict be released and rather placed under the supervision of a probation
officer, instead of being fined or imprisoned. Such a probation officer may be an official of the
Department of Social Welfare or any fit person. The probation period is usually between six
months and eighteen months.
Section 354(1) of Act 30 reads;
“Where a person is charged with an offence before a Court of summary
jurisdiction or on indictment and the Court considers that the charge is proved
but is of opinion that, having regard
(a) to the youth, character, antecedents, home surroundings, health or mental
conditions of the offender, or
(b) to the nature of the offence, or
(c) to any other extenuating circumstances in which the offence was committed,
it is expedient to release the offender on probation; the Court may make a
probation order.”

If while the convict is on probation, he commits another offence, he can be given an alternative
sentence for the original offence.
Although probation orders are usually made in respect of convicts below 18 years (juveniles), the
law allows for convicts above 17 years to also be placed on probation.

Section 354(3) of Act 30 reads;

“The Court shall not make a probation order where the offender is above the
age of seventeen years unless the offender expresses voluntarily the willingness
to comply with the provisions of the order.”

g. Compensation, Reparation / and Restitution

Where a person has been charged with a crime related to economic loss, harm or damage to the
state or any State agency at the High Court or the Regional Tribunal he can make an offer to the

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prosecution to be allowed to make compensation or restitution and reparation to the State. If the
offer is satisfactory to the prosecution and the court, the accused would then plead guilty to the
charge. The court would then desist from passing sentence on accused and rather, order for the
accused to pay compensation or make restitution and reparation. This is a form of ‘plea bargain’.
Section 35 of the Courts Act, 1993 (Act 459) reads;
“(1) Where a person is charged with an offence before the High Court or a
Regional Tribunal, the commission of which has caused economic loss, harm
or damage to the State or a State agency, the accused may inform the
prosecutor whether the accused admits the offence and is willing to offer
compensation or make restitution and reparation for the loss, harm or damage
caused.
(2) Where an accused makes an offer of compensation or restitution and
reparation, the prosecutor shall consider if the offer is acceptable to the
prosecution.
(3) If the offer is not acceptable to the prosecution the case before the Court
shall proceed.
(4) If the offer is acceptable to the prosecution, the prosecutor shall in the
presence of the accused, inform the Court which shall consider if the offer of
compensation or restitution and reparation is satisfactory.”

Punishments should be statute based

The imposition of a sentence by a court is always regulated by law. A court cannot impose
sentences like flogging, community service, banishment, sharia law punishments because they
are not spelt out in any statute in the country.
And where a statute clearly indicates the sort of punishment to be meted out to a convict, the
court cannot impose any punishment not authorized by the statute. In the case of Addo v
Republic [1974] 1GLR 254, the accused was charged before the District Court with the offence
of nuisance under Section 296(2) of Act 29. The punishment for an offender was a fine not
exceeding fifty pounds. In the course of passing sentence, the magistrate made reference to
relatives of the accused who had allegedly been bragging that they had money and so after all
they are in a position to pay the fine. The magistrate then went ahead and imposed a custodial
sentence of 3 months on the appellant. The High Court upheld the appeal. The court, per Wiredu
J. held thus;
“It is apparent from the above that the trial magistrate failed to appreciate his
powers under section 296 of Act 29. It is not clear where he quoted the penalty
prescribed from. Be that as it may the one thing clear is that he allowed
irrelevant outside influences to weigh with him in imposing an otherwise
unauthorised sentence on the appellant who did nothing himself to deserve this

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 deviation from the authorised sanction. It is trite law that where a statute
creating an offence lays down in no uncertain terms the sort of punishment to
be meted out to offenders against that statute it is incumbent on the court called
upon to enforce the law to act within the strict language of that statute”.

THEORIES OF PUNISHMENT
There are theories that have been advanced to explain the complex nature of punishment, its
aims, objectives and justification. There are two main theories, namely the “Retributive”, and
“Utilitarian” theories. Sometimes others point to an amalgam of the two theories as also a
distinct theory, calling it the “Integrative Theory.”

A. RETRIBUTIVE THEORY
This theory is rooted in the firm belief that a person who commits a wrong should be made to
suffer in proportion to the wrong he has committed. Punishment was thus a form of vengeance
by society against the one who committed the wrong. This perception was given a religious
justification in Exodus 21:21-23 which reads;
“An eye for an eye, tooth for tooth, hand for hand, foot for foot,
Burning for burning, wound for wound, stripe for stripe.”
Because of the perception of those who hold the retributive theory that a criminal was a wicked
person who should suffer in proportion for his evil deeds, cruel methods of punishment like
crucifixion, killing by fire, beheading with a blunt axe, and other forms of torture were meted out
in the past without a shred of guilt.
St. Augustine stated that;
“Punishment is justice for the unjust.”
Plato also echoed the same sentiment when he stated that;
“It is as expedient that a wicked man be punished as that a sick man be cured
by a physician.”
This view hold sway in many countries. In England, the House of Lords Committee on Prison
Discipline recommended in 1863 that criminals should undergo severe suffering as a result of
their wicked deeds. They therefore recommended that prison discipline should consist of “hard
labour, hard fare, and hard bed.” “Hard fare” refers to a deliberate monotonous diet.
Adherents of this theory believe that punishment brings about a feeling of pleasure amongst
members of society. This accounts for the applause that follows from the crowd when a sentence
is imposed by the court. The imposition of sentences like the death penalty, imprisonments with
hard labour, and long sentences for serious offences are all a reflection of the retributive theory

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of punishment. Probably the very poor conditions in our prisons are also a reflection of the
theory.
There is now a more accepted view of the retributive theory to fit in with modernity and
civilization. This is that the punishment must be commensurate with the crime. This accounts for
the degrees of punishments to cover various degrees of crime. More serious offences like murder
and robbery get severer sentences than offences like causing harm and stealing.
In place of revenge, society also shifted the emphasis to compensation(restitution). Thus,
whenever the opportunity avails itself, compensation should be paid by the offender to the victim
as part of his punishment.
Victim Vindication Retributivism: By committing an offence, the criminal indirectly sends the
message that his rights should override that of the victim and society. Punishment rectifies this
wrong view and reaffirms the fact that it is the will of the society which should prevail, while
affirming the dignity of the victim.
Since all punishments are imposed in response to the commission of a crime, it is said that all
punishments are to a large extent, retributive.

B. UTILITARIAN THEORY
Jeremy Bentham is credited with highlighting this theory. According to him, laws must seek to
ensure the greatest happiness of the greatest number of people. The individual’s happiness was
not significant. He argued that punishment is justified if the consequences is to prevent society
from such a similar crime in the future and also to benefit the criminal himself. To him,
punishment is justified only when the evil it seeks to redress is greater than the evil of
punishment itself.
The theory has three main versions, namely;
I. Preventive Theory
II. Deterrence Theory
III. Reformative/Rehabilitation theory

I. Preventive Theory:
This theory is that punishment must be directed at the individual offender so as to prevent him
from committing a similar crime at the time of undergoing the punishment. Thus, imprisonment
for a convict for instance would prevent him from committing a similar offence which has
landed him in prison at least for as long as he remains in prison. According to Bentham,
punishment is justified only when the evil it seeks to redress is greater than the evil of
punishment itself.

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II. Deterrence Theory:
This theory can be further classified under;
i. General Deterrence
ii. Individual/Specific Deterrence
Under the General Deterrence theory, punishments must be meted out in respect of an offence so
as to send a clear signal to other members of the society that they should abstain from
committing a similar offence, or else the same fate would await them.
The Individual/Specific Deterrence is to also send a signal to the offender himself that he should
not repeat the offence again, lest the same unpleasant consequences would await him.
For the punishment to act as a deterrent therefore, it should be very grave and send a clear signal
that it is unattractive to commit that crime. The deterrent theory accounts for the nature of
sentences imposed for offences such as murder, robbery, rape, defilement, and narcotic offences.
In the case of Kwashie v Republic (1971)1GLR 488, in collaboration with two other police
officers, the first appellant used his office as a police detective to seize a large quantity of goods
that had been smuggled into the country. Rather than sending the goods to the police station they
were sent to the private house of one of the accomplices for the purpose of selling them for the
benefit of all who participated. The appellants and their accomplices were found guilty of
stealing contrary to section 124 of Act 29 and were each sentenced to seven years’ imprisonment
with hard labour. Counsel for the first appellant argued that the sentence was excessive,
submitting: (1) that the trial judge gave no reasons for the severe sentence that he passed on the
first appellant; (2) that having regard to the value of the goods stolen the sentence was excessive;
(3) that the first appellant was a first offender and ought to have been more leniently dealt with
and (4) that the mere fact that the first appellant was a police officer was not by itself a good
enough reason for imposing an unusually harsh sentence.
The court dismissed the appeal, taking a very serious view of the nature of the offence as well as
the fact that the appellant, as a police officer ought to have known of the gravity of the offence
due to the damage it does to the economy. The court stated in part;
“We cannot but remark that there have been persistent rumours in this country
that some police officers are in collusion with smugglers of contra-band goods
from neighboring countries and elsewhere. Upon these facts, which reveal an
offence of a very grave nature, the sentence must not only be punitive, but it
must also be a deterrent or exemplary. The sentence must mark the disapproval
of our society of such conduct by police officers. Where the court decides to
impose a deterrent sentence, the value of the subject-matter of the charge, and
the good record of the accused become irrelevant.”

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III. Reformative/Rehabilitation theory
Proponents of this theory are of the view that there is something fundamentally wrong with
those who commit crimes. In fact, they do not understand why some people are very law abiding
while others have chosen to be wayward. Supporters of this theory therefore see these
lawbreakers as sick and therefore in need of treatment in order to bring them back to the path of
law abiding citizens. It is believed that such offenders could be replenished with the necessary
deficiencies in curing them. It is also believed that no one is inherently criminal, but that its
society which has made him so. Society should therefore be responsible for their rehabilitation.
The whole essence of the reformative theory is focused on reforming the criminal. It is seen as
the most humane of all the theories on punishment. The treatment of juveniles after conviction,
in which they are placed on probation or sent to rehabilitation centers are all bearing the marks of
the reformative theory. Sometimes the juveniles are sent to institutes which provide vocational
training and discipline. Prison reforms with the availability of psychiatric and counselling
services which include religious advice for those mentally unstable or in need of starting a new
life afresh owe their existence to this theory. The system has come under criticism for pampering
offenders.
In the case of Haruna v Republic (1980) GLR 189, the appellant a young man of 26 years was
convicted and sentenced to 8 years IHL for possession of narcotics. He appealed against the
sentence, on the ground that it was excessive, he being also a first offender. The appellate court
stated thus;
“He is young and this is his first brush with the law. I have said it time and
again that when young men have their first brush with the law, it is essential in
the interest of the reformative element in criminal justice that they be not sent to
prison unless a prison sentence is a mandatory legal requirement. If a prison
sentence is not a mandatory legal requirement, then as a general proposition,
unless there are special circumstances calling for a custodial sentence, the
court must avoid incarcerating young offenders”.

C. INTEGRATIVE THEORIES
This theory combines the good elements in both the retributive and reformative system. On one
hand, it adopts the retributive aspect of being prepared to punish the offender only to the extent
that the utilitarian theory allows, i.e.as long as it would ensure that it would result in benefits to
society. In effect, they adopt the good policies of both theories, while rejecting the undesirable
elements in both.

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Factors taken into consideration when passing sentence
Two main factors are taken into consideration by the court when an accused has been
found guilty and therefore must be sentenced as a punishment. These are;
a. The convict
b. The community

THE CONVICT
i. Age
The court takes into consideration the age of the convict before passing sentence.
Normally, where the convict is young in age or too advanced in age, the court is likely
give a lenient sentence. For a young offender, it is deemed not advisable to give him a
custodial sentence as much as possible. In the same way, a person who is quite advanced
in age may also be spared a long custodial sentence.
In Torto v Rep [1971] 1 GLR 342, @ 347, the court stated;
“Taking into consideration the accused’s extreme youth [mid-twenties], and his
hitherto unblemished character on one side and the gravity of the offence on
the other, we think that the ends of justice will be met if the sentence for
manslaughter is reduced to four years.”

ii. First Offender

Another factor taken into consideration is whether that was the first time that the convict
has had a brush with the law. If that is his first time, the court may take that into
consideration in giving the convict a more lenient sentence.
In the case of Abu v Rep [1980] GLR 294, the appellants all aged between 37 and 42
had been convicted and sentenced by the circuit court to 3 years’ imprisonment for
conspiracy to steal and stealing 30 bags of cement. The Circuit Court sentenced them to 3
years I.H.L. Upon appeal, the high court was of the view that since all the appellants were
first time offenders, the trial court should have taken that into consideration before
passing sentences on them. The court substituted sentences of between 6 months and 18
months for them, depending on each’s role in the commission of the crime.
iii. Previous conviction
Where the convict has previously been convicted for a similar offence, the court would
take it into consideration and may usually increase the sentence. This arises when the
convict after having fully served the previous sentence, has again committed a similar

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offence. Assault and causing harm, stealing and robbery, rape and defilement are all
examples of similar offences.
iv. Unblemished character
If the convict has had a previous good record, the court would take that into
consideration. The convict may also go out of his way to compensate the complainant or
engage in genuine acts of having shown remorse.
v. Physical condition
A convict with a serious physical disability is likely to be given a more lenient sentence
than one without any disability. The exceptions may be where the offence is a serious
one, or where there is a mandatory minimum sentence, set by statute. Thus, the blind,
cripple and the deaf are examples of persons likely to be treated leniently if they are
convicted.
vi. Status
Generally, persons who are regarded to be in responsible positions are expected to live a
life above reproach. If they fall foul of the law, the court would normally give stiffer
sentences to such convicts.
vii. Guilty plea
Persons who plead ‘guilty’ to a charge instead of pleading ‘not guilty’ are generally given
more lenient sentences. This is because they are not deemed to have wasted the court’s
time.
viii. Remorse:
The court would also sometimes deal leniently with an accused who has shown remorse
for his action. This usually boils down to the conduct of the accused from the time he is
alleged to have committed the offence up to the time of his conviction. He may have
made overtures to the complainant to settle the matter or may have even paid up some
form of compensation to the complaint as a way of assuaging the pains of the
complainant. His demeanor in general may be taken into consideration by the court.
Sometimes the accused persons could be seen begging the court to deal leniently with
them.

THE COMMUNITY
i. Protection of the public
The court takes into consideration the need to protect the public from perpetrators of
crimes. Therefore, it needs to do a balancing act and ensure that it sends the right signal
that the community needs protection from criminals. That may account for the imposition
of custodial and deterrent sentences on convicts.
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Should economic necessities be taken into consideration in sentencing?
Sometimes the bad state of the economy may result in persons resorting to crime, in order to
survive. Should that be a factor in giving a lenient sentence to an offender? In the case of Abu v
Republic (supra), the court per Taylor J stated that;
“This argument would seem to urge that the court should take a lenient view
because of the general economic difficulties facing most workers in the country.
I agree that personal difficulties are no excuse for crime but my general
inclination is to turn a sympathetic view to this argument as it reflects my own
uneasy feeling gradually welling up as I watch the pattern of crime in present-
day Ghana. Clearly if the economic situation is not put on an even keel, many
persons will be turned into petty criminals.….”
In the case of Haruna v Rep [1980] GLR 189, Justice Taylor also stated that;
“It is common knowledge that the economic conditions in the country at the
moment have reached a stage where the average person is finding life really
unbearable. The matter is so notorious that I propose to take judicial notice of
it. The cost of living has reached such a high pitch that the average earnings of
the average person would seem to be insufficient for the essentials of life. To
lead a decent life now, the average worker, not self-employed, must either
engage in additional legitimate trade or business outside his normal work or
have recourse to dishonest means to augment his earning. Even those in the top
income bracket and with good employment have not escaped the stranglehold of
these general economic difficulties and so the dilemma of the person who is
finding it difficult to obtain employment or to make ends meet by his own
normal employment or calling must be indeed pitiable.”

READING MATERIALS
H.J.A.N MENSA-BONSU: The General Part of Criminal Law Vol I, pages 106-140
P.K TWUMASI: Criminal Law in Ghana, pages 10-13.
S.A BROBBEY: Practice & Procedure in the Trial Courts & Tribunals of Ghana, 2nd Edition,
pages 190-201.

TUTORIAL QUESTIONS
1. To what extent is the Reformative/ Rehabilitative theory an affront to the definition of
‘punishment,’?
2. Explain in detail the Utilitarian theory of punishment.
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3. “An eye for an eye, will make the whole world blind.” (-Mahatma Ghandi).
In what ways does this statement reflect the weaknesses and strengths of the Retributive form of
punishment?
4. Examine the various forms of punishment authorized under the laws of Ghana for punishing
offenders.
5. Discuss the various factors that are taken into consideration by a trial court before meting out
punishment to a convict.

(G. AYISI ADDO)

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