I submit that the President has no such powers to exercise to save a person who has been convicted for contempt of court.
Facts: Our 3 friends were not convicted for contempt under the Criminal offences act. They were convicted based on the Courts inherent powers to punish for Contempt. To punish under the Criminal Code would have meant prosecution by the Attorney General.
Lets look at Article 72 (1):
(1) The President may, acting in consultation with the Council of State-
(a) grant to a person convicted of an offence a pardon either free or subject to lawful conditions; or
(b) grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him for an offence; or
(c) substitute a less severe form of punishment for a punishment imposed on a person for an offence; or
(d) remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account on any offence.
Thus it is quite clear that the President can exercise a prerogative of mercy power when the person’s punishment is for an offence.
Question: What an offence is under the laws of Ghana. The Constitution’s definition clause does not define an offence.
However Section 1 of the Criminal Offences Act (Act 29) defines an “offence" has the same meaning as crime. A crime under our 1992 constitution per Article 19(11) is a conduct that is defined as offence and the punishment given to it.
Contempt of Court is not defined as an offence. In fact Article 19 (2) states as follows:
“(12) Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constitution the contempt is not defined in a written law and the penalty is not so prescribed.”
The Criminal Offences Act further states that:
Section 10—Saving for Contempt of Court. “Nothing in this Code shall affect the power of a Court to punish a person for contempt of Court.”
The interpretation of an offence being that of a “criminal offence” is further affirmed by Section 17 of the Transitional Provision of the Constitution 1992.
“The prerogative of mercy of the President under article 72 of this Constitution may be exercised in respect of any criminal offence committed before the coming into force of this Constitution as it may in respect of a criminal offence committed thereafter.”
My position is not new under the laws of Ghana. For the power of remission of sentence which has come to be known as 1 year in the prison calendar means 9 months is vested in the Prison service and that power cannot be exercised with regards to persons convicted for contempt of court.
Section 34 of the PRISONS SERVICE DECREE, 1972 (NRCD 46) states
“Remission for Good Conduct
(1) Subject to subsection (3), a prisoner serving a sentence of six weeks or more may by steady industry and good conduct earn a remission not exceeding one-third of his sentence.
(2) All or any part of the remission so earned may be forfeited in accordance with regulations for failure by the prisoner to maintain steady industry or good conduct.
(3) This section shall not apply in the case of a prisoner who is—
(a) serving a sentence of imprisonment for life;
(b) detained during the pleasure of the National Redemption Council;
(c) committed to prison for debt; or
(d) committed to prison for contempt of court.
Although contempt of court and I therefore submit that the President cannot invoke his powers under Article 72 to safe any person convicted for contempt of court. Hmm. Maybe I can change my mind with a more superior argument.
Source: Dennis Adjei Dwomoh of Kulendi @ Law
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