Ghana Law Library
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Lots of persons who enter law firms cannot help but wonder at the huge size of the books on the lawyer’s shelf. In Ghana, among the books that may cause such fascination are the Seven Volumes of the Laws of Ghana (Revised Edition). The mandate of the Law Review Commissioner was, amongst other things, to consolidate the existing laws of Ghana and make adaptations to and amendments of Acts in order to bring those Acts into conformity with the Constitution of Ghana, 1992.
However, this task led to subtle amendments to some of the laws of Ghana, since changes in wording, whether by substitution, omission, or the addition of new words, completely altered the substance of the law. For instance, Section 42(g) of the Criminal Offences Act, 1960 (Act 29), before the Law Review Commissioner’s work, read:
“42. The use of force against a person may be justified on the ground of his consent, but –
(g) a person may revoke any consent which he has given to the use of force against him, and his consent when so revoked shall have no effect for justifying force; save that the consent given by a husband or wife at marriage, cannot be revoked until the parties are divorced or separated by a judgment or decree of a competent court.”
Effectively, the old position of the law did not recognise marital rape. A careful reading of the law as stated above leads to the conclusion that a wife’s consent to engage in sexual relations with her husband was practically immaterial, as the existence of the marriage operated to override the effect of the availability or otherwise of that consent. The justification for this amendment, according to the Law Review Commissioner in Revised Laws of Ghana, Volume 3, page 111-1731, was that the negation of consent in such circumstances, by reason only of marriage, was unconstitutional. The new position of the law under section 42(g) of Act 29 thus provides:
“42. The use of force against a person may be justified on the ground of consent, but,
(g) a person may revoke a consent which that party has given to the use of force against that person, and the consent when so revoked shall not have effect or justify force.”
The legal effect of the new position of the law is that marriage cannot become an overriding justification for the use of force. This alteration of the law did not sit well with Martin Kpebu (Esq.). In the case of Martin Kpebu (No. 3) v The Attorney-General [2015-2016] 1 SCGLR 511, the plaintiff, amongst others, sought a declaration that the power granted to the Law Review Commissioner “to make adaptations of and amendments to Acts in order to bring those Acts into conformity with the Constitution of Ghana, 1992 does not include the power to make alterations of substance, and therefore the omission of marital consent as a defence for the use of force in section 42 (g) of the Criminal Offences Act, 1960, (Act 29) is null, void and of no effect for being contrary to article 93 (2) of the Constitution, 1992”.
In essence, the plaintiff contended that upholding the law in this form amounted to usurpation of the powers granted to the Parliament of Ghana by the Constitution, 1992. Akamba JSC, in his valedictory judgment, responded to the plaintiff’s prayer by stating that “the Commissioner’s discretion on the amendment was still subject to Parliamentary consideration. The opportunity came when Parliament, which granted the Commissioner the power to undertake the revision exercise, was presented with the concluded works. Significantly, Parliament did not complain about any of the matters presented to them, (including the amendment to s. 42 (g) of Act 29/1960) albeit en masse, and gleefully approved them pursuant to s.8 of Act 562/1998 and Article 106 of the Constitution, 1992.”
My Lord proceeded: “… Parliament acted within its powers when it duly adopted and passed the seven volumes of the Laws of Ghana (Revised Edition) on 14th December 2006 and thereby assumes responsibility for them. In the result, the fact narrative surrounding the adoption of the seven volumes of the Laws of Ghana (Revised Edition) detracts from it being contrary to article 93 (2) of the Constitution 1992. In other words, there is no factual basis before us, to support the claim that the seven volumes were not the making of Parliament. Thus, the omission or deletion of marital consent as a defence for the use of force in section 42 (g) of the Criminal Offences Act, 1960, (Act 29) having been adopted pursuant to the approval of Parliament, even if considered an alteration or amendment of substance, cannot be attributed to the Commissioner but to Parliament”.
Therefore, even though there may have been alterations to the law, even where such alterations affected the substance of the law, they became the work of Parliament once Parliament adopted and passed the Revised Edition. This did not amount to a usurpation of Parliament’s constitutional mandate by the Law Review Commissioner, as contended by the plaintiff.
Another example of a law that was affected by the Law Review Commissioner’s work is the inchoate offence of conspiracy under section 23(1) of Act 29. The old law, as provided under section 23(1), stated that, “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime…” whereas the current position of section 23(1) of Act 29, as revised, provides thus:
“Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”.
The substantive distinction between the old position of the law and the law’s current position is the substitution of the conjunction “or” with the preposition “to”. This act, altered the meaning of the law. Justice Dennis Dominic Adjei, in Contemporary Criminal Law in Ghana (Third Edition, Black Mask Ltd., p. 114), states: “…the new definition of conspiracy has limited the scope of conspiracy in Ghana. For conspiracy to succeed in Ghana, the prosecution must prove that the persons agreed to act together with common purpose to commit the offence”. It followed naturally that the absence or inability to prove an agreement between the two accused persons was fatal to a charge of conspiracy.
In the case of Republic v Augustine Abu & Ors [2009] DLHC 7832, the High Court gave the revised definition of conspiracy its ordinary meaning, as the rules of interpretation dictate. However, it cannot go unnoticed that prosecutors and some judges alike did not hide their resentment towards the nuances of the current law. For instance, in Agyapong v The Republic (2015), quoted by Prof. H.J.A.N Mensa-Bonsu in (The Annotated Criminal Offences Act of Ghana and Domestic Violence Act, 2007 (Act 732), 6th Edition, Black Mask Ltd 2019, p 59) Korbieh J.A. stated: “Quite frankly, this court must confess that it has a problem with the new law… The problem stems from the wording of section 23(1) itself and the illustration that follows the definition of conspiracy. It is difficult to see how two or more persons can agree to act together without previous concert or deliberation. Would they have reached the agreement by telepathy? This court therefore finds the new formulation of the law on conspiracy so contradictory that it is almost meaningless. In the opinion of the court, it is contradictory to talk of two or more persons agreeing to act together and yet say that they need not have had previous concert or deliberation”. My emphasis.
This interpretation of the new law stood firmly until the holding in Faisal Mohammed Akilu v The Republic (Unreported), 5/07/2017, Criminal Appeal No. J3/8/2013. The facts, reproduced briefly, involved the appellant, who was convicted together with others on charges of conspiracy to commit robbery and robbery, contrary to Sections 23(1) and 149 of Act 29, respectively. The events which led to their conviction were that, the appellant and three other friends chartered a taxi-cab to the Nyaho Clinic area for one of them to collect money from someone. On the way, it was alleged that the appellant and his friends attempted to snatch the taxi-cab in which they were travelling from the driver. In the process, they took an amount of GH¢40.00 from the driver but could not drive away the car. A military officer who ventured onto the scene assisted the driver of the taxi-cab in arresting one of the accused persons, while the others, including the appellant, who was the second defendant at trial, managed to escape. They were later arrested, with the exception of one person who was tried in absentia.
At trial, when the taxi driver was cross-examined about the appellant’s involvement, he averred that the appellant did nothing but was amongst the perpetrators. The appellant was convicted by the High Court, and his appeal to the Court of Appeal was dismissed by a majority of the bench. He thus appealed to the Supreme Court.
Appau JSC, in determining the case, expounded on the meaning of conspiracy as provided under Section 23(1) of Act 29. In his words:
“From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime. In such a situation, the particulars of the charge normally read: ‘he agreed together with another or others with a common purpose for or in committing or abetting the crime’. However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read: ‘he acted together with another or others with a common purpose for or in committing or abetting the crime’. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime.”
Consequently, a person may be charged with conspiracy to commit an offence under Section 23 (1) of Act 29 on two conditions: where the person does not participate in commission of the substantive offence or where the person participates in committing the substantive offence.
Firstly, a person may be guilty of conspiracy to commit an offence where he did not participate in the commission of the substantive offence. In this case, the prosecutor needs to prove an agreement between the co-conspirators. The agreement may exist in a chain or wheel form, as indicated in State v Otchere [1963] 2 GLR 463, or may even be implied from the conduct of the conspirators, as seen in State v Boahene [1963] 2 GLR 554, where the court ruled that the existence of a common design could be inferred from the subsequent overt acts of the conspirators. In all things, the prosecutor must prove beyond reasonable doubt that there was an agreement or some form of common design to commit an offence. Failure to prove this agreement is therefore fatal to the prosecution’s case.
Secondly, a person may be guilty of conspiracy to commit an offence where he participates, or is seen acting together with others, with a common purpose for committing or abetting a criminal offence, with or without any previous concert or deliberation. In this case, failure to prove an agreement between the conspirators is not fatal to the charge of conspiracy against an accused, although the presence of an agreement will advance the prosecutor’s case. However, in order for the prosecutor to succeed, there must be proof beyond reasonable doubt that the accused’s presence at the scene went beyond mere coincidence or observation — John David Logan & Another v The Republic [7/02/2007] Criminal Appeal No. J3/1/2006. The prosecutor must prove that the presence of the accused at the scene was for the purpose of committing or abetting the commission of the crime. Failure to prove the accused’s involvement in the crime, although he was present at the scene, is equally fatal to the charge of conspiracy, as seen in Akilu’s case. The taxi driver’s evidence was that the appellant was there at the scene but did nothing. The prosecutor was therefore unable to discharge the burden of proof in Akilu’s case that the appellant’s presence was beyond mere coincidence or for the purpose of observation. From the evidence adduced, the appellant was at the scene, but all he did was nothing. Presence alone is insufficient. Participation matters.
It is not so far-fetched to observe that the prevailing interpretation of Section 23(1) of Act 29 in Akilu v The Republic is essentially a restatement of what the law used to be before the Law Review Commissioner’s work. This interpretation may therefore be viewed as a practical response to the difficulties created by the revised wording of Section 23(1) of Act 29.
It alleviates what could otherwise become a significant evidential obstacle for prosecutors. Conspiracies are often covert arrangements. Direct evidence of the precise moment at which conspirators reached an agreement may rarely be available. If the law were interpreted to require direct proof of such an agreement in every case, the prosecution of conspiracy could become unduly difficult.
In sum, the evolution of Section 23(1) of Act 29 demonstrates how a seemingly minor alteration in statutory language can have significant consequences for the administration of criminal justice.
The replacement of “or” with “to” transformed the apparent structure of the definition of conspiracy and generated considerable uncertainty. Academic commentary and judicial decisions, particularly Agyapong v The Republic, exposed the difficulty inherent in requiring persons to agree to act together while simultaneously recognising that there may be no previous concert or deliberation.
The Supreme Court’s decision in Faisal Mohammed Akilu v The Republic provides an important response to that difficulty. The decision appears to recognise that conspiracy may be established not only through proof of an agreement reached before the commission of the substantive offence, but also through evidence demonstrating that accused persons acted together with a common purpose in committing or abetting the offence. This does not mean that every person found at the scene of a crime is a conspirator. The prosecution must still prove beyond reasonable doubt that the accused’s presence and conduct were connected with the common criminal purpose.
In that sense, Akilu may be seen as a pragmatic interpretation of Section 23(1) of Act 29; one that prevents the revised wording from frustrating the prosecution of conspiracies that are, by their very nature, often concealed and difficult to prove by direct evidence.
In the humble opinion of this author, this represents a step in the right direction. It alleviates some of the difficulties that the revised wording of Section 23(1) of Act 29 could otherwise impose on the prosecution.
Perhaps what is most deserving of commendation is the resilience of the appellant and his counsel in maintaining the position that the appellant was not guilty and, in the process, contributing to an important clarification of the law on conspiracy in Ghana. The dust may finally have settled, but Section 23(1) of Act 29 remains a fascinating illustration of one fundamental truth in statutory interpretation: Sometimes, a single word can change the law.