Introduction
The purpose of this article is simply to educate readers on the effect of a repeal on pending criminal trials. I also consider the effect of a repeal on the prescribed sentence of a repealed criminal offence.
The end of a criminal statute or an offence creating provision in a statute can be by way of a repeal in subsequent legislation or by a Supreme Court declaration that the statute or a provision therein is void because it is inconsistent with the 1992 constitution.[i] The effect of a repeal is trite: the repealed law, whether an Act of Parliament or a provision in an Act, ceases to have effect[ii] except as to matters that had already been dealt with. The interesting thing is this: in criminal law, repeals and savings provisions have different effects, first on offences and second, on actions taken based on the substantive laws i.e., a criminal trial. These will be addressed in turn.
The Effect of Repeals on Offences - The Legality Principle
In criminal practice, fair trial rules are universal. They serve as safeguards to the enforcement of the fundamental rights of accused persons. Key among these fair trial rules is the legality principle which states that an act does not amount to an offence unless it is written down in law. The aim of this principle is to punish people for acts which at the time of their commission, were prohibited. The rationale is simple: perhaps the person accused would not have engaged in that conduct if he had known it was an offence at the time he engaged in that conduct.
The legality principle is in two parts: the first is that the act or omission must be designated as a crime in a written law. In essence, criminal legislation cannot have retrospective effect or be ambiguous. In clear words, the conduct which amounts to a crime must be written in law and defined. This first principle is captured in the Latin maxim nullum crimen sine lege.
The second part of the legality principle is that the punishment for the crime must also be prescribed in a written law. This is to prevent arbitrary and wanton punishment of persons who at the time of committing an offence, may not be aware of the consequences of the prohibited conduct. This second principle is also captured in the Latin maxim nulla poena sine lege.
Articles 19(5) and 19(11) of the 1992 Constitution of Ghana entrench the legality principle. They provide:
19(5) – A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.
19(11) – No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in written law.
Based on the legality principle, the conduct of the accused person must amount to an offence written and defined in law at the time the conduct was carried out. In respect of a repealed offence, there is no doubt that for all breaches of that law which occurred after the law came into effect but before the repeal, the legality principle has been satisfied; in other words, the offence was codified in written law at the time it was committed. However, anything done after the repeal cannot be the subject of a criminal charge as the conduct is no longer an offence in an existing law and enforcing same would amount to the forbidden act of retrospectivity.
Thus, if the same conduct is to remain a crime, the new law must necessarily codify and define it in compliance with the legality principle. A clear example would be the repeal of section 136 of the Electronic Transactions Act, 2008 (Act 772) which criminalized child pornography and the subsequent passage of sections 62 to 66 of the Cybersecurity Act, 2020 (Act 1038) with similar provisions. Note that persons who engage in the prohibited act after the new law comes into force would be charged under the new law.
The question is whether persons who had been charged under the new law can continue to be prosecuted after the repeal. By extension, one may also wonder whether persons who committed the offence before the repeal can be freshly charged at all under the old law. The leeway to prosecute crimes under the repealed law depends on the analysis below.
The Effect of Repeals on Criminal Trials: Saving Provisions
Generally, savings provisions in the subsequent legislations have the power to expressly save actions lawfully taken under repealed laws where the said provision specifically states so. In situations where there are no savings provisions, any trial pending before the courts based on offences that have been repealed are deemed to be obliterated with the repealed law and must necessarily come to an end. Savings provisions are not found in just the new law; the Interpretation Acts of many common law jurisdictions usually have savings provisions of general application to statutes. A savings provision typically saves ongoing investigations (pre-charged criminal cases) and ongoing trials (charged cases).
The criminal jurisprudence of Ghana has seen two Interpretation Acts which are relevant to the analysis here. Each of these Acts has been the subject matter of a judicial pronouncement in respect of its application to criminal trials.
A: The old statement of the law – The Interpretation Act, 1960 (CA 4)
Section 8(1)(e) of CA 4 provided as follows:
(1) The repeal or revocation of an enactment shall not—
(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or
(b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.
In the case of British Airways and Another v The Attorney-General[iii], the Supreme Court held that since under article 19(11) of the 1992 Constitution it was unconstitutional to convict or punish any person unless a written law defined or provided sanctions for the offence, the provision of section 8(1)(e) of CA 4 dealing with the effect of a repeal or revocation of an enactment was unconstitutional in respect of criminal offences contained in a repealed law. Section 8(1)(e) was deemed inapplicable to the criminal case pending against the plaintiffs in that case.
It is re-emphasized that section 8(1)(e) was declared unconstitutional in respect of criminal cases by the apex court; it was not declared to be lacking a savings provision in respect of criminal trials. On page 65 of the judgement, this is what was stated by Bamford Addo, JSC:
“This provision is now inconsistent with article 19(11) of the Constitution, 1992 in respect of criminal offences contained in a repealed law such as PNDCL 150. It would have been a different matter if the plaintiffs had been convicted before the repeal of PNDCL 150 by Act 516 or if Act 516 had saved offences committed before the repeal of PNDCL 150, but Act 516 was silent on this; it merely repealed PNDCL 150, and consequently the provision of article 19( 11) of the Constitution, 1992 came into play in respect of the criminal case pending against the plaintiffs. It should be noted, however, that in respect of civil matters, the consequences of a repeal in section 8 of CA 4 still applies. Article 19(11) of the Constitution, 1992 deals only with criminal cases in which the accused persons are yet to be tried, convicted, and sentenced.” (Emphasis mine)
The court also stated emphatically on page 71 that the article 19(11) formulation in effect requires that at every stage of the investigation and prosecution of an offence, there must be a written law creating the offence and prescribing the punishment for it. The meaning to be derived here is that where there is a repeal of an offence without another provision in existence criminalizing that same conduct, any ongoing prosecution must cease. This presupposes that new charges under the old law cannot be brought against a person who breached the repealed law or who was under investigations before the repeal.
The above legal position has changed in the interpretation and application of the new Interpretation Act. Does Act 792 resolve the issues raised in respect of CA 4 in the British Airways case?
B: The New Statement of the Law
In Edmund Addo v The Republic[iv], a situation similar to the one presented in British Airways case was put before the Supreme Court. The issue raised was whether an accused person standing trial for a criminal offence ought to automatically be discharged and the charge against him struck out once the offence creating section under which he was charged is repealed. Relying on a provision similar to section 8(1)(e) of CA 4, the court concluded that the Interpretation Act saves all pending criminal trials under a repealed law unless the application of the Act is excluded.
Section 32 of the Interpretation Act, 2009 (Act 792) provides that where in an enactment it is declared that the whole or a part of any other enactment is to cease to have effect, that other enactment shall be deemed to have been repealed to the extent to which it is declared to cease to have effect. The question is what happens to actions taken or rights accrued under a repealed law? The answer lies in section 34(1)(d) and (e) of Act 792 which reads:
(1) Where an enactment repeals or revokes an enactment, the repeal or revocation shall not, except as in this section otherwise provided,
(d) affect an offence committed against the enactment that is repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect of that offence; or
(e) affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege, an obligation, a liability, a penalty, a forfeiture or a punishment;
and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.
Do you see the difference in the wording of the two laws? With the wording of the omnibus savings provision, the repealed provision which creates the offence is saved. The pronouncement in the Edmund Addo case was sealed with the following words of Dotse, JSC[v]:
“It must also be emphasized that from the principles of interpretation of statutes dealt with in this opinion, as well as the case law, it is apparent that a repealed statute does not lose all of its effect and operating provisions simply because a new statute had been enacted. General principles of interpretation as well as the effect of the relevant provisions of the Interpretation Act must all be considered and read together, in order to ascertain the effect of the repeal.”
Remember that the constitutional provision and the legality principle do not specify the form of an offence creating enactment or section; the principle is upheld so long as an existing enactment makes it clear that a crime remains triable. Thus, the purpose can be served even with the mechanical use of a savings provision, whether specific or omnibus. Any offence created under this saved provision can be prosecuted whenever the commission is detected. Any investigation that had commenced can continue. Any trial that is ongoing can also continue. In all these cases, the charges will be under the repealed law against which the offences were committed. You will find many cases in court charged under the old narcotics law, the Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL 236) although it has been repealed without a savings provision for criminal cases by the 2020 Narcotics Control Commission Act.
Effect of Repeals on Punishment
There is no difficulty in situations where the punishment is prescribed in a different provision of the enactment. An example is where an offence is declared to be a second-degree felony with nothing more, such as causing harm in section 69 of the Criminal Offences Act, 1960 (Act 29). The punishment for such offences can be found in section 296(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). A repeal of the offence creating section does not affect the separate section that prescribes the punishment. Thus, together with the omnibus or specific savings provision, the legality principle is preserved.
Does a savings provision save only the offence creating section of a repealed law or the prescribed punishment as well? The answer is in section 34(1)(d) of Act 792: a repeal does not affect an offence committed against the enactment that is repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect of that offence. Whatever punishment was prescribed by the repealed law is saved along with the offence itself. This position does not conflict with article 19(6) of the 1992 Constitution which provides: no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed. All crimes charged under a repealed law are those crimes that were committed at the time that repealed law was still operational. By complying with the saved punishment for that crime, the statutory maximum sentence will remain the limit.
In the case of Obeng Gyebi vrs The Republic[vi], an aspect of the above discussion was analysed by the Supreme Court. The issue in that case was “what happens when a person is convicted and sentenced under a provision that is repealed and/or replaced with a reduced sentence while the person appeals the sentence?” Relying on foreign case law and section 35(2)(e), the apex court determined the following:
“In an Appeal, which is by way of rehearing, what was the law (governing the sentencing of a person convicted of an offence of which the Appellant was convicted) at the time when the appeal is heard?” In most cases, the legal sentencing regime — that is, the law governing the sentencing of the offence in question, would not have changed by the time of the appeal and therefore in an appeal against a sentence, the considerations which an Appellate Court has to contemplate in making a decision about the sentencing are the same as the considerations which the Trial Court had to evaluate. In this case however, since the law governing sentencing at the time when the appeal was heard by the Court of Appeal and now by this Court was different from the law at the time of the original sentencing, it is the law at the time that the appeal is heard which ought to be applied since the appeal is by way of a rehearing, therefore the considerations which the Trial Court and the Appellate Courts have to evaluate are different.
If the sentence imposed is written and within the statutory limit at the time of commission of the offence (i.e. in compliance with article 19(6)), why should the sentence at the time of appeal matter? Section 35(2)(e) of Act 792 provides that where a penalty, a forfeiture or a punishment is reduced or mitigated by a provision of the enactment so substituted, the penalty, forfeiture or punishment, if imposed or awarded after the repeal or revocation, shall be reduced or mitigated accordingly.
The position taken by the court raises a question: whether section 35(2)(e) and section 34(2)(d) of Act 792 conflict with each other. To illustrate, consider the situation where a repealed law prescribes a punishment of life imprisonment. Section 34(2)(d) saves this punishment in respect of persons convicted under that old law. A new law is passed which imposes a new maximum penalty of up to 15 years imprisonment after convicts had already been sentenced under the old law. Going by the Obeng Gyebi position and the interpretation given to section 35(2)(e), any convict who appeals against his sentence of life imprisonment must be sentenced to a term of up to 15 years imprisonment. In one breadth, it seems merciful but, in another breadth, it may lead to a legal quagmire and absurdity.
This decision has been the subject of an article[vii] by Kyei Baffuor, JA[viii] in which he expresses his disagreement of the position taken by the court. He strongly argued that “once there is even a mitigation or punishment of the sentence suffered or being suffered; its repeal has no impact on what the repealed law accomplished in the life of the person that suffered the liability.” Considering the purpose of the provisions in sections 32 to 35 of Act 792, and using the title of section 35 as an aid to interpretation, could it be that the intendment of Parliament in respect of section 35(2)(e) was for the provision to apply to cases pending at the time of a repeal? In such a situation, lady justice exercises mercy by replacing the saved punishment with a lesser punishment.
Until this judicial pronouncement is reviewed or overturned, the new legal position remains. The Criminal Offences (Amendment) Act, 2023 is an invitation for all persons sentenced to death in the listed crimes to appeal against the sentence.
[i] See article 1(2) of the 1992 Constitution of Ghana
[ii] See the case of The Republic v High Court (Commercial Division), Accra; Ex Parte Environs Solutions and 3 Others (Dannex Ltd. & 5 Others Interested Parties) [2019-2020] 1 SCGLR 1
[iii] [1997-1998] 1 GLR 55.
[iv] Criminal Appeal No: J3/04/2022 dated 31st May 2023.
[v] Supra at note 2.
[vi] Criminal Appeal NO. J3/02/2021 dated 26th May 2021; [2021] DLSC10691.
[vii] Kyei Baffuor, 2023: “Retrogression in Retrospectivity: A Critique of the Supreme Court Case of Obeng Gyebi”, https://www.dennislawnews.com/view-opinions/retrogression-in-retrospectivity--a-critique-of-the-supreme-court-case-of-obeng-gyebi accessed 22ndOctober 2023.
[viii] Justice of the Court of Appeal, Ghana.