FRIDAY LEGAL CORNER HIS LORDSHIP JUSTICE ALEXANDER OSEI TUTU, JA.
VOL. 6, 2026 EDITION
No, Misdemeanours Do Attract a Prison Term in Ghana, Even 25 Years
(Why small keys still lock big doors and why community service is not automatic)
Introduction
A few weeks ago, a certain wind began to blow through our legal streets, and it appears to be gaining momentum. It carries a seductive but specious dictum that misdemeanours in Ghana attract no custodial sentence, only a fine; that bail in such cases is a matter of right; and that a judge who refuses it deserves to be rusticated to the classroom.
Specious as its momentum may be, and with the greatest respect to its proponents, the statute book tells a more sober story. The law is not swayed by wind. Let us go to the black letter, where the law has built its hospital and labelled its wards.
1. The Nomenclature of Crimes – The Hospital of Section 296, Act 30
Ghana’s criminal jurisprudence is structured like a hospital triage. At the Emergency Ward lie capital offences, at the Intensive Care Unit, first degree felonies, at the General Ward, second degree felonies, and at the Out-Patient Department (OPD) lie misdemeanours. The fact that the OPD is at the entrance does not mean it is not part of the hospital.
But OPD, too, has beds, and those beds have chains.
2. The Three-Year Bed – Section 296(4) Act 30
Section 296(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) is the admission register for the OPD. It states in plain language:
“Where a criminal offence which is not an offence mentioned in subsection (5), is declared by any enactment to be a misdemeanour and the punishment for the offence is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding three years.” (my emphasis).
When our elders build a house, they also measure its shadow. Parliament has measured the shadow of the OPD. Its shadow is three (3) years.
Nulla poena sine lege – but here, the lex has provided the poena.
To say OPD has no beds is to admire the signboard and ignore the ward. Three years is not a slap on the wrist. It is a deprivation of liberty.
As Lutterodt, Karimu and Djarbeng have noted that a review of Act 29 reveals that 25 offences are classified as first-degree felonies, 44 offences are classified as second-degree felonies, and 133 offences are classified as misdemeanours.
Assault simpliciter (Section 84), offensive conduct conducive to a breach of the peace (Section 207), publication of false news under Section 208(1) of Act 29 – all parade under this shadow of incarceration. They enter through the OPD door, but they sleep on beds with chains.
3. The Lion in a Sheep’s Skin – Section 296(5) Act 30 and the Metamorphosis under Act 1034
Even more striking is Section 296(5). Some misdemeanours have the teeth of a lion. Non nomen, sed poena.
Section 296(5) lists fourteen offences with an enhanced ceiling. It provides:
“A person convicted of a criminal offence under any of the following sections of the Criminal Code, 1960 (Act 29), that is to say, sections 124, 128, 131, 138, 140, 145, 151, 152, 154, 158, 165, 239, 252, 253 and 260 shall be liable to imprisonment for a term not exceeding twenty-five years.”
Of these fourteen, the hospital register reveals two curious discoveries:
– Seven are second degree felonies: Sections 124, 128, 131, 138, 151, 152 and 158. Ordinarily, a second-degree felony sleeps on a ten (10)-year bed under Section 296(2). But by reason of Section 296(5) of Act 30, its bed has been elongated. Lex specialis derogate legi generali. By this special provision, they now carry up to twenty-five years. The General Ward patient has been moved to High Dependency.
– Seven are, or were misdemeanours: This is the true lion is a sheep’s skin.
Section 145 (fraud by agents), Section 154 (possession of instruments for unlawful entry) and Section 165 (possession of means of forging) remain misdemeanours today, yet they carry twenty-five (25) years. They enter through the OPD door, but they sleep on the High Dependency beds.
And Section 239 (corruption of and by a public officer or juror), Section 252 (accepting or giving bribe to influence a public officer or juror), Section 253 (corruption promise by a judicial officer or juror) and Section 260 (withholding of a public money by a public officer) were misdemeanours punishable by up to twenty-five (25) years.
As the elders say, “The chick that will grow into a cock can be spotted the very day it hatches.” Parliament spotted the gravity of these chicks.
Indeed, in 2020, Parliament, by the Criminal Offences (Amendment) Act, 2020 (Act 1034), completed the metamorphosis. It amended Sections 239, 252, 253 and 260 of Act 29 to impose a term of not less than twelve (12) years and not more than twenty-five (25) years upon summary conviction.
What does this mean? Mutatis mutandis, the sheep shed its skin. What was once called misdemeanour now carries a mandatory minimum of twelve years. It no longer sleeps in OPD. It has been wheeled by statute, into High Dependency.
Act 1034 did not expressly reclassify them as felonies. It primarily introduced a minimum mandatory term of twelve (12) years and retained the twenty-five (25)-year ceiling. Its long title declares the purpose “to categorise the offence of corruption as a felony”, but the operative provisions say only that the offender “commits an offence”,
Since there was no reclassification by the amending statute, the four misdemeanours in issue do not technically acquire the incidents of felonies in other wards of the law. What Parliament did not expressly reclassify; the courts must not impliedly reclassify. The long title is the signboard; the operative provision is the ward.
But the lesson remains, To say misdemeanours, attract no prison term, therefore, is to ignore that a misdemeanour in Ghana could, until 2020 and even now with offences associated with it, earn you a quarter of a century behind bars. As our elders say, “A child may be small, but his load may be that of an elder.” A small name, a heavy load.
4. Bail is Not for the Asking – But the Courts Should Be Slow to Refuse Bail in Misdemeanours
Bail is not for the asking. Section 96 of Act 30 vests the court with a judicial measuring tape: the likelihood of appearance, the risk of interference with the witnesses or the evidence, the nature and the gravity of the offence, the character and antecedents, and public safety.
It is settled practice that a court should be slow to refuse bail in misdemeanour cases, the presumption being in favour of liberty. Libertas omnibus rebus favorabilior est – liberty is favoured above all things. The OPD patient is ordinarily treated and allowed to go home. He is not kept overnight unless his wound is likely to infect others.
Slow, however, does not mean “powerless.” Discretio est discernere per legem quid sit justum – discretion is to discern through law what is just.
A person charged with a misdemeanour possessing two passports, a one-way ticket to London, and a penchant for intimidating complainants may be justifiably remanded in prison custody. That is not judicial illiteracy. That is judicial fidelity to Section 96. That is the court reading the measuring tape correctly.
The court is not bereft of jurisdiction to remand a person charged with a misdemeanour where the Section 96 of Act 30 factors militate against bail. To construe otherwise is to turn discretion into compulsion and the measuring tape into a handcuff on the judge himself.
5. Community Service Act, 2026 (Act 1175) – Four Gates, Not an Open Door
The current refrain is that Act 1175 makes community service automatic for all misdemeanours. Act 1175 itself says otherwise.
Gate 1 – Discretion and Ceiling – Sections 40 and 41(1)
Section 40: “Where a court convicts an accused person for the commission of misdemeanour or any other offence specified in section 41, the court may, in passing sentence, grant the option of the performance of community service by the convicted person as an alternative punishment.”
Section 41(1): “A community service order made under section 46 applies to an offence punishable by a term of imprisonment of not more than three years with or without the option of a fine.”
Section 41(2) then clarifies that for purposes of Section 41(1), it does not matter whether the creating enactment says (a) a fine only, (b) imprisonment only, (c) a fine with the option of imprisonment or (d) a fine and imprisonment. The form is irrelevant; the ceiling of three (3) years is decisive.
If your offence is one of the Section 296(5) 25-year offences – whether a second degree felony or a misdemeanour under Sections 145, 154, 165, 239, 252, 253, 260 – you cannot pass Gate 1.
The operative word is “may” is permissive, not mandatory. Parliament chose it advisedly.
Gate 2 – Summary Trial Filter – Section 42
Section 42: “Despite any provision in an enactment, a court shall not make a community service order in respect of an offence that is unsuitable for summary determination in accordance with section 179 of Act 30.”
Gate 3 – Structures and 5-Year Rollout – Section 43
Section 43: The Minister shall, on the advice of the Secretariat, notify the Chief Justice in writing of: (a) districts or communities of the country where arrangements have been made; and (b) the structures that have been put in place for enforcement.
“(2) The Minister shall implement community service programmes in all districts in the country within five years of the coming into force of this Act.”
The Act was assented to on 26 August 2026. As at 20 August 2026, the Ministry of Interior was still holding stakeholders consultation on a draft implementation plan. The National Community Service Secretariat, Regional and District organs, District Committees, Supervisors, Rehabilitative Fund, tools and electronic case-tracking system are yet to be established. As at the date of writing, no notification under Section 43 has been issued. Without it, a judge has no station to send the convict to.
As our elders say, “You cannot expect a child to fetch water when you have not given him a pot.” And in law, Lex non cogit ad impossibilia – the law does not compel the impossible.
Ubi jus, ibi remedium must also mean Ubi remedium, ibi structura – where there is a remedy, there must be a structure for the remedy. The OPD may have been told to prescribe the new drug, but the dispensary is empty. Until the Section 43 notification arrives, the court is not left without medicine. A misdemeanour remains punishable by imprisonment or a fine or both, the old faithful prescription of the OPD. What the court cannot do today is to prescribe community service where the pharmacy for it has not been stocked.
Gate 4 – Conditions Must Be Met First – Sections 44, 45 and 46(1)
Even where structures exist, the new drug is not administered like paracetamol. It requires diagnosis.
Section 44 – Social Enquiry Report (mandatory): Where a court determines that a community service order should be made under Section 46, it shall, before making the order, direct a community service officer to conduct enquiry into:
(i) the circumstances of the case;
(ii) the character and antecedents of the convicted person and
(iii) the health status of the person, and report to the court in a prescribed form.
This is clinical. The doctor must examine the file before prescribing. The court does not guess; it shall enquire. Audi alteram partem – and Audi etiam corpus – hear the person, hear the body. Can he sweep? Can he stand? What is his history?
According to an African proverb, “You do not shave a man in his absence.” No community service order without a social enquiry report. To do otherwise is to prescribe spectacles without testing the eyes.
Section 45 – Conditions: The Court shall have regard to:
(a) the need to protect the public;
(b) the prevalence of the offence;
(c) the likelihood of reform;
(d) previous conviction;
(e) understanding of the effect;
(f) reparation to the victim;
(g) the surety;
(h) the conduct during bail, and
(i) capacity to perform service.
These are the vital signs. Before the court writes the prescription for community service, it must take the vital signs of justice.
Is the public safe if this man sweeps the market instead of sleeping in cells? Is this offence a fever in the district – prevalent, contagious, demanding, deterrence? Is this soul likely to reform, or will he treat the broom as a joke? Has he been here before – a habitual patient? Does he understand the wound he caused? Has he repaired the victim, or only repaired his own story? Can a surety hold him? How did he behave when the court, in its mercy, granted him bail – did he honour the prescription or tear it? And finally, can his own body carry the load?
This is not a checklist to be ticked with a red pen. It is a judicial scale – et trutina, non calamus – a weighing, not merely a writing. The OPD doctor does not prescribe the same drug to the asthmatic and the marathon runner. So too, the court must discern.
In the view of our elders, “The one who will be given a load to carry must first be asked whether he has knees.” Capacity to perform service – Section 45 (i) – is the knee of the matter.
Section 46(1) – Power to make order:
“Where a court is satisfied that the conditions for making a community service order have been met that court may make a community service order as set out in the First Schedule directing the convicted person to perform a community service.”
The syntax is telling: “Where… satisfied”, “have been met” “may”. They all connote discretion, not automatic entitlement.
Where the law says “may”, there discretion lives. The law has not said “shall sweep”. It says, “where satisfied … may order sweeping”. The bed must be examined, the vital signs taken, the report read, the conditions weighed, and only when the judicial mind is satisfied – truly satisfied – does the hand reach for the new prescription.
Conclusion
The position is trite: misdemeanour in Ghana has always attracted a prison sentence, a fine or both. Ordinarily, the imprisonment term is up to three (3) years under Section 296(4). For the misdemeanours listed in Section 296(5) – Sections 145, 154, and 165 still, and Sections 239, 252, 253 and 260 until 2020 – the prison term that could be awarded was up to twenty-five (25) years, a ceiling that applies equally to the second-degree felonies listed in the same subsection.
In 2020, Act 1034 introduced a minimum term of imprisonment of twelve (12) years for Sections 239, 252, 253 and 260 to twelve (12) years. They were not expressly reclassified as felonies, which suggests that they retain their beds at the OPD, except that they will now spend more years at the crime hospital.
Act 1175 does not abolish that custodial regime. It introduces a conditional alternative available only in notified districts, only for offences capped at three (3) years, only after a social enquiry, and only if the judge is satisfied under Section 46(1).
A Judge who imposes a custodial sentence for a misdemeanour is therefore not acting contrary to the law. If citizens are discontented, their anger should first be directed at the legal framework. As posited by one writer, “In imposing prison sentences, the Judges are operating within the law. It is the law that needs reform.”
That is the whole homily. A judge who sends a misdemeanant to Nsawam for two years has not invented a law. He applied Section 296. He who imposed a fine has applied the same law. Both are operating within the law.
Act 1175 does not punish the judge for waiting. It commands patience. Until the Minister notifies under Section 43, until the Social Enquiry Report is ordered under Section 44, until the vital signs under Section 45 are taken, and until judicial satisfaction is attained under Section 46(1), the new treatment cannot be administered.
A court should be slow to refuse bail in misdemeanour cases, but it is not bereft of jurisdiction to remand where Section 96 so demands.
Four gates must swing open in sequence. If any remains bolted, the three-year bed in the OPD – and, for Sections 145, 154, 165, 239, 252, 253 and 260, the twenty-five-year bed remains occupied.
Let us educate the public. Let us not undermine the bench.
If the hospital has no bed, you do not beat the nurse. The bench has applied the beds the law has provided. When facilities are fully-installed in the new ward, the bench will gladly admit patients there.
