A Legislative Reform Brief on Obsolete Offences and Inefficient Punishments in Act 29
Bertha Aniagyei
Introduction
The motivation for this brief reflection was prompted by the invocation of archaic laws by the current U.S. President, Donald Trump. Laws enacted as early as the 1800s, such as the Alien Enemies Act of 1798, which had remained dormant for decades, were unexpectedly revived and given a new lease of life by the Trump administration.
The persistence of these laws, despite their disuse for over a century, underscores a critical issue in governance: the failure to repeal outdated or inappropriate statutes can allow for their revival and potential misuse, sometimes with consequences that far exceed the original intentions of Parliament.
The 29th Enactment
In Ghana, the principal criminal legislation is the Criminal Offences Act, 1960 (Act 29). This statute was enacted by Parliament in the immediate post-independence period and became effective on 1st August 1960.
It is worthy to note that it is the twenty ninth (29th) Act passed by a Parliament that has now passed about one thousand one hundred and thirty (1130) Acts.
Since its enactment, the Act has undergone more than twenty amendments, including significant revisions such as Act 554 (1998), Act 646 (2003), Act 738 (2007), Act 849 (2012), Act 1038 (2020) and Act 1079 (2022).
The most recent notable amendments include the Criminal Offences (Amendment Act, 2023, (Act 1092) which decriminalized attempted suicide and the Criminal Offences (Amendment) Act, 2023 (Act 1101), which has criminalized the accusation of witchcraft, reflecting a societal shift towards human rights-based governance.
Despite these amendments, Ghana has yet to undertake a comprehensive legislative overhaul of Act 29. In a democratic framework governed by the rule of law, Article 19(11) of the Constitution,1992 stipulates that an act constitutes a criminal offence only if it is explicitly defined and the penalty prescribed by law.
Consequently, any statute, even those that are antiquated or unenforced may serve as a basis for criminal prosecution. The mere existence of a provision in the statute book renders it enforceable, irrespective of its obsolescence or lack of relevance to the times.
Statutes in the Shadows – “The Law is the Law.”
The significance of funeral ceremonies to Ghanaians is widely acknowledged. Consider, for instance, the ramifications for the numerous individuals who conduct funeral services on weekends, and occasionally on weekdays, should the Republic choose to enforce Section 293(1) of Act 29, which designates it an offence for an occupier of a residence in a town to permit the assembly and use of drums or similar musical instruments without obtaining a written license from the local Assembly.
Moreover, the many attendees who participate in such funerals, engaging in lively dancing, sharing jokes with friends, and consuming food and drink in a manner that may not be considered reverent or decorous, could face prosecution for the offence of behaving irreverently, indecently, or in an insulting manner at a funeral.
When one extends this consideration to churches, mosques, and other places of worship, it becomes evident that the Ghana Police Service may encounter significant challenges by way of the number of arrests it would effect each weekend. Consider the pallbearers who dance with the coffin en route to the graveyard, can their actions be deemed indecent or irreverent?
Despite the public outcry and disapproval that would likely accompany such arrests and prosecutions, it is important to note that these offences are enforceable. They are clearly defined within the legal framework, with prescribed penalties stipulated in a written law, specifically Act 29. It is the law and would remain so until the lawmaker says otherwise!
The Legislative Economy Argument
Sixty-five years post-enactment, Act 29 continues to include offences punishable by nominal fines, some as low as five (5) penalty units. Given that a penalty unit in Ghana was last assessed at twelve Ghana Cedis (GHS 12) by the Attorney-General, a five (5) penalty unit fine equates to a mere sixty Ghana cedis (GHS 60.) Such a trivial penalty not only fails to serve as an adequate deterrent but also raises questions regarding the economic justification for enforcing these provisions.
From a legislative governance perspective, this introduces a significant efficiency gap. The criminal justice process involves multiple state actors, including police officers, prosecutors, court clerks, legal aid officers and judges, all of whom are salaried public servants.
When one further considers the costs associated with essential resources such as stationery, electricity, water, vehicles, and the maintenance of facilities like courts and police stations, the economic rationale for pursuing such minor offences becomes increasingly problematic.
Prosecutions resulting in a sixty Ghana cedis (GHS 60) fine may incur costs to the State amounting to hundreds or even thousands of Ghana cedis, constituting an unsustainable drain on public resources and a misallocation of administrative focus.
In contrast, serious offences such as rape, robbery, and murder rightly attract more severe penalties or capital punishment. However, numerous minor offences remain codified, untouched, and unexamined, potentially costing more to enforce than they yield in terms of deterrence or public safety.
Do you Know?
It is important to be aware that individuals can be prosecuted, convicted, and sentenced to a fine not exceeding ten penalty units for engaging in activities such as singing a profane, indecent, or obscene song, or for fighting or quarreling in a public place.
Have you ever attended a social event and heard an announcement stating: “Someone’s iPhone 16 Pro Max is missing. Whoever took it is kindly requested to return it in exchange for a reward of GHS 1,000. No questions asked”?
A reference to Section 233(1) of Act 29 indicates that such a public declaration, which constitutes an offer of a reward for the return of stolen property with the assurance of confidentiality, constitutes an offense that is punishable, upon conviction, by a fine not exceeding twenty-five penalty units.
Furthermore, it is a criminal offense punishable by a fine not exceeding twenty-five penalty units if one writes a letter or petition on behalf of an illiterate person without including their full name and address on the face of the document.
Are you familiar with the procedure for sending a telegram? If you lack this knowledge, it may be beneficial, as knowingly sending a false telegram with the intent of aggrieving or annoying the recipient is an offense punishable by a fine not exceeding fifteen penalty units. There is no exemption for doing so even on April Fool’s Day.
Additionally, individuals can be prosecuted, convicted, and sentenced to a fine of ten penalty units for discarding filth, rubbish, or refuse in a public space. Before discarding refuse from a vehicle while on the road, it is advisable to consider this consequence.
While the fine may not be substantial, one should contemplate the accompanying stress and strain associated with navigating the legal process, from the police station to the court, until a verdict is reached. Is this worth the potential hassle? If not, it is prudent to retain waste within the vehicle until it can be disposed of appropriately.
Did you Know?
Did you know that, property owners or occupants in urban areas have a legal obligation to ensure that the perimeter surrounding their residence, including adjacent streets or roads, is free from dirt, weeds, bushes, rubbish, tall grass, and broken bottles.
Failure to uphold this responsibility can result in prosecution, conviction, and sentencing to a fine of twenty-five penalty units, regardless of whether they caused the littering. Notably, liability persists even if the property is unoccupied.
Additionally, individuals are required, under penalty of a fine, to assist any officer from the local Assembly or the Ghana Highway Authority in extinguishing or controlling the spread of a fire.
When present in places of worship, such as churches or mosques, or during funerals, one’s behavior must remain respectful. Engaging in irreverent, indecent, or insulting conduct may lead to prosecution, conviction, and a fine of ten penalty units.
Consider the many times you have experienced traffic congestion due to an individual unlawfully using a portion of public roads for parking or placing construction materials. Instead of merely feeling offended, it may be advisable to report such infractions to law enforcement- if you do not mind the rather “friendly” punishment. If the individual acted without the authority of the Local Assembly or the Ghana Highway Authority, they may face prosecution and a fine not exceeding ten penalty units.
Beasts and the Law
Reflecting on recent public discussions regarding statements made by a municipal Chief Executive concerning stray cattle, it is important to note that peace or health officers have the authority to seize and impound such animals, detaining them until the owner pays a fee not exceeding two penalty units for each day of detention.
For goats, sheep, or swine, the daily fee must not exceed one penalty unit. If the owner fails to pay the incurred expenses after four days of detention, the animals may be sold, provided the owner receives a six-day notice.
This offense applies to residents in various locations, including Aburi, Accra, Agona Swedru, Akim Oda, Axim, Bekwai, Bibiani, Bolgatanga, Cape Coast, Christianborg (now Osu), Dunkwa, Elmina, Ho, Hohoe, Keta, Kibi Koforidua, Kumasi, Mampong-Ashanti, Nsawam, Obuasi, Saltpond, Sekondi-Takoradi, Sunyani, Tamale, Tarkwa, Tema, Wa, Winneba, and Yendi.
When was the last time you encountered a horse, donkey, or mule in a public space? How were they utilized, and were they affected by farcy or glanders? You may find it enlightening to examine the stipulations outlined in Section 301 of Act 29 regarding this matter.
Did you also know that Ghana has long been at the forefront of combating animal cruelty? Any form of cruelty, including acts of kicking, terrifying, or infuriating animals, constitutes an offense punishable by a fine not exceeding twenty-five penalty units upon conviction.
Other Offences Punishable by a Fine not Exceeding Twenty Five Penalty Units.
Many offences outlined in Chapters 8 and 9 of Act 29 are subject to fines not exceeding five, ten, or twenty-five penalty units upon conviction.
1. Section 209 – Discharging firearms in urban areas – five penalty units.
2. Section 282 and 283- affixing or inscribing obscene or indecent material or causing someone to do same in a public place, public urinal or a place visible to the public will attract a fine of not more than twenty five penalty units upon conviction.
3. Section 289 – Engaging in noxious trades or interfering with public rights – fine not exceeding 25 penalty units.
4. Section 292 (6) and (7) – A holder of a license for the sale of intoxicating liquor or for maintaining a public entertainment venue who refuses to present the license for examination when arraigned in court for harboring thieves.
5. Section 293(1) – An occupier of a house in a town who permits assembly and drumming without a written license from the District Assembly – 5 penalty units (this is particularly relevant for the numerous funerals held nationwide each weekend).
6. Section 294 – Drumming or making loud noises within three hundred yards of a court during its proceedings, and refusal to cease after being warned by a police officer – a fine not exceeding twenty-five penalty units.
7. Section 295 – Drumming with the intent to challenge, insult, or provoke another individual – a fine not exceeding twenty-five penalty units.
8. Section 296 – 26 offenses categorized under nuisances and obstructions, including the unlawful disposal of refuse or slaughtering animals outside designated areas – 10 penalty units.
9. Section 298 – Disturbing the peace in public through fighting or singing profane or indecent songs – a fine not exceeding ten penalty units.
10. Section 311 – Bringing liquor aboard a ship owned by the Republic without the commanding officer’s prior consent – an offense punishable by a fine not exceeding five penalty units. Just a thought, does the government of Ghana currently own any ships?
11. Section 313 (b) – Signing a prospectus, petition, or testimonial in another person’s name without authorization – an offense punishable upon conviction by a fine not exceeding fifteen penalty units.
Governance and Reform Imperatives
The Ghana Law Reform Commission, along with the Subsidiary Legislation and Constitutional, Legal, and Parliamentary Affairs Committees of Parliament, may find it prudent to undertake a comprehensive review of Act 29. Such a review should aim to:
1. Decriminalize Low-Level Offenses and Increase Penalties for Public Offenses: Consider substituting minor offenses, such as negligent animal handling or public nuisances, with administrative penalties or local by-laws enforceable by local assemblies. Conversely, penalties for certain pervasive offenses may need to be increased to serve as effective deterrents, accompanied by public awareness initiatives regarding these amendments.
For instance, the existing penalty for permitting filth or refuse in public spaces is ten penalty units. Given the ongoing issue of refuse being discarded from moving vehicles and the limited impact of public education efforts, Parliament may need to implement stricter penalties to deter such behaviors, particularly as these actions contribute to drain blockages which in turn causes floods during the rainy season.
On the other hand, offenses like nighttime drumming in public spaces without a license or allowing one’s premises to be used for such purposes may be best addressed by local assemblies to generate revenue for local initiatives.
2. Harmonize Offences Across Statutes: In 2012, Parliament consolidated various health-related statutes into the Public Health Act. Similarly, it may consider incorporating or repealing outdated laws, such as the Control and Prevention of Bush Fires Act, 1990 (Act 229), to better align with contemporary environmental and health legislation.
3. Introduce Sunset Clauses: Implement expiration mechanisms for specific offenses in modern statutes unless renewed, ensuring laws remain responsive to societal needs.
4. Strengthen Prosecutorial Guidelines: The Attorney General’s office should establish guidelines that discourage the pursuit of cases where a cost-benefit analysis does not favor prosecution.
5. Introduce a Periodic Legislative Audit: Mandate a legislative audit of criminal laws every five years to identify redundant or costly provisions.
Conclusion
Laws reflect the societies they govern. As society evolves, culturally, economically, or technologically, so too must its laws. A modern state must legislate with fiscal prudence, social relevance, and governance foresight.
The persistence and occasional enforcement of trivial or obsolete offenses in Act 29 risks transforming the administration of justice into costly bureaucratic rituals. Moreover, it fosters the potential for arbitrary or vindictive application of the law.
Ghana’s Parliament must adopt a legislative governance posture that prioritizes legal clarity, fiscal prudence, and societal relevance. The time for comprehensive reform of criminal law is not tomorrow; it is now.
P.S. When you have the opportunity, please conduct a brief review of Act 29. You may find yourself unexpectedly dismayed or pleasantly surprised by certain offences that remain on our statute books.
