CRIMINAL LAW

Week 4: Punishment
Kofi Agyena Agyeman, Esq.

Introduction: What Is Punishment?

Punishment sits at the very heart of criminal law. When the State
convicts a person of a crime, it does not simply record a verdict and move
on — it acts. It reaches into the life of the offender and deliberately
makes things worse for them. That deliberate act of making things worse
is what we call punishment.
At its core, punishment has been described as:
"…a phenomenon that entails the infliction of suffering or some other
unpleasant consequence by an agency in a position of authority on an
offender for an offence."
But punishment is not automatic. In Ghanaian law, the authority to
punish is constrained by the Principle of Legality enshrined in Article
19(11) of the 1992 Constitution. This provision mandates that no person
can be convicted — and therefore punished — unless both the offence
and its penalty are already prescribed in a written law. In other words,
there can be no punishment without a pre-existing legal rule.
So what makes something legally recognisable as 'punishment'? Legal
scholars have identified six essential elements that must all be present.

The Six Elements of Punishment

For a consequence to count as legal punishment in the criminal law
sense, it must satisfy all six of the following elements:

1. The Infliction of Suffering

Punishment must involve the infliction of pain or some other form of
unpleasant consequence. This is the defining feature of the concept. If no
suffering or discomfort is caused, the act simply cannot be called
punishment. The whole point is that the offender must experience
something they would not have chosen — something that hurts, burdens,
or disadvantages them as a direct consequence of their wrongdoing.
2. By a Deliberate Act
The suffering must be caused by a deliberate act. Accidental or
unintended consequences — however unpleasant — do not constitute
punishment. It is precisely the intentional nature of the act that gives it
its penal character. When the State deliberately chooses to impose
hardship on a convicted person, it transforms an ordinary act of harm
into a legally sanctioned punishment.

3. Of Another (Other-Imposed)
Punishment must be imposed by one person upon another — it cannot be
self-inflicted. As the saying goes: "punishment is other-imposed." This
reflects a fundamental principle of the criminal law: it is the State, acting
through its courts and agencies, that imposes the consequence, not the
offender themselves. The classical philosopher articulated this with
precision:
"No one undergoes punishment because he has willed to be punished,
but because he has willed a punishable action; for it is in fact no
punishment when anyone experiences what he wills, and it is impossible
for anyone to will to be punished."
— The Right of Punishing and Pardoning (quoted in Criminal Law of
Botswana: Cases and Materials by Prof. Kwame Frimpong)

4. In a Position of Authority
Not just anyone can punish. The person or institution imposing the
punishment must occupy a position of authority over the person being
punished. In the context of criminal law, this means a legitimate organ of
the State — the courts, acting on behalf of the people. A vigilante mob
inflicting suffering on a suspected thief may cause pain, but they are not
"punishing" in the legally recognised sense because they lack the
requisite authority.

5. On an Offender
The target of punishment must be an offender — that is, someone who
has actually breached the criminal law. Unpleasantness inflicted on a
person without any prior act of wrongdoing on their part cannot properly
be described as punishment. This element is intimately connected to the
rule of law: punishment presupposes a prior wrong, a prior finding of
guilt, and a prior lawful conviction.

6. For the Doing of a Prohibited Act

Finally, the punishment must be a response to a prohibited act or
omission. It is the act of prohibition — the law that says "you may not do
this" — that gives the conduct its wrongful character. Without that
prohibition, there is no offence; without an offence, there is no
punishment. A person who drives on the right side of the road in a
country that mandates the left may cause an accident, but they have only
committed a punishable wrong if there is a written rule prohibiting their
conduct.

The Aims of Punishment: Why Do We Punish?

Knowing what punishment is gets us only halfway there. The more
challenging and philosophically rich question is: why do we punish? What
are we actually trying to achieve when we lock someone up, fine them, or
impose community service upon them?
Punishment is not meted out merely for the sake of it. It must serve a
purpose — and legal scholars and jurists have long debated what that
purpose should be. The main functions of punishment can be summarised
as:
• Retributive — paying back the offender for their wrongdoing
• Deterrent — discouraging future criminal conduct
• Reformative — changing the offender into a better person
• Restorative — restoring the victim and repairing harm
• Preventive — physically stopping the offender from committing
further crimes
• Expressive — affirming societal values and denouncing wrongdoing
These aims are generally grouped under two broad theoretical traditions:
Retributive Theories and Utilitarian Theories. Each has its merits, its
critics, and its influence on Ghanaian courts.

Part One: Retributive Theories of Punishment

Retributivism is perhaps the oldest and most instinctive theory of
punishment. At its core, it answers the question "why punish?" with a
simple and morally charged response: because the offender deserves it.
The past wrongful act — not any future benefit — is the sole justification
for punishing. Whether the punishment prevents crime or reforms the
offender is, in the retributivist view, beside the point.
The criminal law recognises two main variants of retributive theory:

A. The Classic Retributive Theory (Lex Talionis)

The classic form of retribution is rooted in the ancient concept of lex
talionis — the law of retaliation. This is the idea captured in the familiar
Mosaic principle of "an eye for an eye." Under this view, the State exists
to avenge the wrong done to the victim by inflicting on the offender
exactly what was inflicted on the victim.
Those who advocate this theory insist that the offender must suffer to the
same extent as the victim. Justice, on this view, is a kind of moral
arithmetic: crime creates an imbalance, and punishment restores it.
Thinkers associated with retributivism include Kant, Hegel, Bradley, J.D.
Mabbott, and Michael Moore.
Critique: Critics of classical retribution argue that it amounts to little
more than legalised revenge. It is also practically unworkable for many
modern offences — how, for instance, do you measure the exact
equivalent of suffering in a case of fraud or blackmail? The 'eye for an
eye' formula collapses when faced with crimes that have no physical
equivalent.

B. The Proportionality Theory

The proportionality theory is the more modern and widely adopted
version of retributivism. Rather than demanding an exact equivalence of
suffering, it holds that punishment must simply be proportional to the
crime committed. The offender should get what they deserve — no more
and no less — with the severity of the punishment calibrated to the
gravity of the offence.
This theory commands broad support in contemporary criminal justice
systems, including Ghana's. It takes into account not just what was done,
but the circumstances in which it was done — including the role played
by the victim. A person who kills in response to prolonged aggression is
not in the same moral position as one who plans a cold-blooded murder,
and the proportionality theory insists that sentencing must reflect this.

Case Authority: Melfa v The Republic [1974] 1 GLR 174

Facts: The appellant was convicted of manslaughter following a bar fight.
The deceased had initiated and escalated the confrontation, and the
appellant had reacted during the struggle by stabbing the deceased with
a broken bottle. The trial court imposed a custodial sentence without
fully accounting for these circumstances.
The Court of Appeal held:
"Each crime of violence should be considered on its own merits when
inflicting penalty on the perpetrator. If the learned trial judge had
considered all the facts in relation to the crime especially the fact that
the totality of the evidence indicated that the deceased was the
aggressor throughout the whole incident and met his death in the fight
which ensued, he would not have imposed such a long sentence which
was harsh and excessive in the circumstances."
Significance: This case is the leading Ghanaian authority on
proportionality in homicide sentencing. It firmly establishes that
sentencing must be individualised and context-sensitive. Provocation and
aggression by the victim reduce the offender's moral culpability, and the
sentence must reflect this. One-size-fits-all sentencing in violent crimes is
impermissible.
Case Authority: The State v Benjamin Machinga & Joshua (1985) Criminal Trial
No. 8
In this case, Murray J offered an instructive example of the
proportionality theory in action:
"I have listened with care to what I have now been told about you. It is to
your credit that you are a person of good character and for that reason I
will be able to partially suspend a sentence that I am about to pass upon
you. Nonetheless your behaviour is most reprehensible… your reaction
was totally disproportionate. It is necessary that you should be punished
for this offence to mark society's disapproval of your conduct."
This passage illustrates how proportionality theory works in practice: the
court acknowledged mitigating factors (good character) while still
insisting that the disproportionate reaction required punishment. The
sentence was calibrated accordingly.

Strengths and Weaknesses of Retributivism

Strengths
• Moral consistency: It treats the offender as a rational, moral agent
who chose to break the law and must face the consequences. This
respect for human agency has a certain dignity to it.
• Vindication of the law: By imposing a penalty, the State reaffirms
societal standards and demonstrates that the law is not a "toothless
bulldog."
• Limits on State power: The principle of negative retribution acts as
a safeguard, ensuring that only the guilty are punished and that
penalties do not exceed a limit related to the gravity of the offence.
• Proportionality: It strives to ensure the punishment fits the crime,
reflecting community values.

Weaknesses
• Barbarism and revenge: Critics argue that classical retribution is
grounded in mere revenge and may result in punishment for the
sake of punishment, contributing nothing to society's wellbeing.
• Measurement difficulties: It is nearly impossible to reach an
objective equivalence of suffering. How many years of
imprisonment equals the anguish caused by blackmail?
• Indifference to future good: Adherents like J.D. Mabbott argue that
utilitarian ends (like reform) are "external to the matter," leading
critics to characterise retributivism as an "exercise in waste" that
does nothing to prevent future crime.

Part Two: Utilitarian Theories of Punishment

(Reductivism)
If retributivism looks backward — to the offence already committed —
utilitarianism looks forward. The utilitarian does not ask "what does the
offender deserve?" but rather "what good will this punishment produce?"
Associated primarily with Jeremy Bentham, the utilitarian tradition holds
that the law must ensure the greatest good for the greatest number of
people. Punishment, on this view, is not an end in itself but a means to an
end — specifically, the reduction of crime.
Because punishment necessarily causes suffering — and suffering is bad
— the utilitarian will only justify punishment where it produces enough
good to outweigh the harm it causes. The relevant measure is: does this
punishment prevent more crime than it creates suffering?
The utilitarian tradition encompasses several distinct aims:

A. General Deterrence
General deterrence aims at society as a whole. The idea is simple: by
imposing a sufficiently severe penalty on one offender, the State sends a
message to everyone else — "do not do this, or the same will happen to
you." The offender is, in effect, made an example of, and fear of similar
consequences is supposed to discourage like-minded individuals from
offending.
Sentences given with this aim in mind tend to be harsher than those
imposed purely for proportionality reasons. Personal circumstances —
including a clean record — may become irrelevant when the court
decides that society needs a stark warning.

Case Authority: Kwashie and Another v The Republic [1971] 1 GLR 488 (CA)
Facts: Two police officers used their official positions to seize smuggled
goods and then diverted them for personal gain rather than handing
them to the proper authorities. They were convicted of stealing and each
sentenced to seven years' imprisonment with hard labour.
The Court of Appeal upheld the sentence and held:
"Since the offence was of a very grave nature, the sentence must not only
have been punitive but it must also have been a deterrent or exemplary
in order to mark the disapproval of society of such conduct by police
officers. When a court decides to impose a deterrent sentence the value
of the subject-matter of the charge and the good record of the accused
become irrelevant."
Significance: This is the leading Ghanaian authority on general
deterrence and public interest sentencing. It establishes that abuse of
public office is a major aggravating factor that justifies exemplary
punishment. Law enforcement officers are held to a higher standard, and
corruption or misconduct by those trusted to uphold the law attracts
sentences that are designed to protect public trust — not just to punish
the individual before the court.
Case Authority: The State v Keatlaretse Julia Moseki (1984) Criminal Trial No.
15
Mr Justice O'Brien Quinn articulated the deterrence principle directly
when sentencing:
"…I also informed her that, despite all that was said on her behalf, she
would have to go to prison both as a punishment for what she had done
and as a deterrent to others who may be tempted to act in a similar
manner."

B. Specific Deterrence
Specific deterrence is narrower in focus. Rather than sending a message
to society at large, it aims at the particular individual before the court.
The goal is to make the experience of punishment so unpleasant that the
offender is personally deterred from reoffending. Unlike general
deterrence, which treats the individual as a vehicle for communicating
with the public, specific deterrence is genuinely concerned with that
individual's future behaviour.

C. Prevention (Incapacitation)
Prevention takes a more pragmatic approach. Rather than trying to
persuade the offender not to reoffend, or to frighten society into
compliance, it simply removes the offender from the community. Through
imprisonment — or in extreme cases, capital punishment — the offender
is rendered physically incapable of committing further crimes against
society. This is sometimes called incapacitation.
The logic is straightforward: a person who is in prison cannot burgle
houses, commit fraud, or assault members of the public. Incapacitation
thus provides immediate, direct protection to the community, even if it
does nothing to address the underlying causes of offending.

D. Reform and Rehabilitation

Of all the utilitarian aims, rehabilitation is perhaps the most optimistic. It
proceeds from the belief that offenders are not inherently wicked but
have, through circumstance, upbringing, or misfortune, strayed from the
right path. The purpose of punishment, on this view, is not to harm the
offender but to help them: to assist them in turning over a new leaf and
returning to society as productive, law-abiding citizens.
This is usually achieved through moral and religious education,
vocational training, and other rehabilitative programmes during
incarceration. The idea is that, by the time the offender is released, they
will have the skills and disposition necessary to live without resorting to
crime.
Case Authority: Abu & Others v Republic [1980] GLR 294
Facts: The appellants, all adult first offenders, were convicted of
conspiracy to steal and stealing 30 bags of cement in a coordinated night
operation. The trial court sentenced several of them to three years for
conspiracy and 18 months for stealing.
Taylor J (as he then was) articulated the rehabilitative principle:
"The rehabilitative principle in sentencing seems to be aimed at
rehabilitating persons who have gone astray and who seem to have
personality deficiencies inclining them to a life of crime but who have
nevertheless revealed tendencies conducive to reformation."
The Court of Appeal also emphasised in this case that sentencing in
group crimes must be individualised — courts should avoid blanket
punishment and must reflect the personal culpability, degree of planning,
and individual circumstances of each accused. Mitigation, including
economic hardship, may be considered but cannot excuse crime.
Significance: Abu v Republic is a dual authority — it affirms the
rehabilitative purpose of sentencing while also establishing the key
proportionality principle that punishment must reflect personal
culpability, not just group liability.

Case Authority: Dakurugu v Republic [1989-90] 1 GLR 308

Facts: The appellant was charged with fraud and deceit of a public
officer. He initially pleaded guilty, but procedural irregularities occurred
— including the magistrate influencing the plea through prejudgment
and failing to properly explain the consequences.
Taylor J held:
"In my view when young men have their first brush with the law, it is
expedient in the interest of the reformative aspect of punishment that
the courts deal leniently with the offenders. If this is not done and young
men on the very first occasion they appear in court are sent into prison,
it will be impossible to obtain reformation. They will come in contact with
hardened criminals and they may be forever lost to decent society."
Significance: This case powerfully illustrates the reformative aim in
action. It recognises that the criminal justice system's response to a first-
time young offender can determine the trajectory of that person's entire
life. The court's judgment is a call for mercy in service of a greater social
good: saving young people from becoming career criminals.

Strengths and Weaknesses of Utilitarianism

Strengths
• General deterrence: Severe sentences can discourage society from
offending by making the risks clearly visible.
• Specific deterrence: Punishment that genuinely discourages
reoffending serves the individual and the community.
 • Reform and rehabilitation: It seeks to transform offenders into
productive citizens, addressing the root causes of criminality.
• Prevention: Incapacitation provides immediate, concrete protection
to the community.

Weaknesses
• Injustice to the individual: In theory, utilitarianism could justify
scapegoating an innocent person if doing so would produce
sufficient social benefit. Retributivists pose the classic challenge: if
a judge could prevent a riot by falsely convicting and severely
punishing an innocent man, would a utilitarian be obligated to do
so?
• Practicality of rehabilitation: Genuine reformation often requires
long sentences and well-resourced prison programmes. Without
adequate support during incarceration and proper aftercare
services upon release, rehabilitative goals are routinely frustrated.
• Effectiveness of deterrence: There remains genuine empirical
uncertainty about whether harsher sentences actually deter people
from crime — particularly impulsive, opportunistic, or addiction-
driven offenders.

Part Three: Other Theories of Punishment

Beyond retributivism and utilitarianism, modern jurisprudence has
developed additional theories that emphasise different dimensions of the
punishment relationship.

A. Atonement and Reparation

This theory requires the offender to make amends — to compensate the
victim for the injury or damage caused. Compensation may be monetary
or take another form ordered by the court. The focus shifts from what the
State does to the offender to what the offender does for the victim.
Statutory Authority: Section 35(1) of the Courts Act, 1993 (Act 459)
gives effect to this theory by allowing an accused person who has caused
economic loss or harm — whether to the State or to another — to offer
compensation, restitution, or reparation. The court may take such an
offer into account in determining the appropriate sentence. Section 73 of
the same Act provides further guidance.
Reparative justice is gaining increasing prominence in modern criminal
law discourse because it addresses something retributivism and
utilitarianism both tend to overlook: the victim. The victim's actual loss —
financial, emotional, physical — is often left unaddressed by a sentence
that merely imprisons the offender.
B. The Expressive (Denunciatory) Theory
Associated with thinker James Fitzjames Stephen, the expressive theory
holds that punishment is a conventional device for society to express its
moral condemnation of a crime. Punishment "speaks in the name of the
people" — it articulates, formally and publicly, that society does not
acquiesce in what was done, and that the law means what it says.
Some scholars take this further and describe sentencing as a kind of
ritual denunciation — a dramatic ceremony that satisfies the public's
need for a formal demonstration of disapproval. This explains why, even
in cases where deterrence and rehabilitation might suggest a lenient
response, the court may nonetheless impose a significant penalty to
vindicate the law and affirm societal values.
The Kwashie case above also illustrates this expressive dimension: the
Court of Appeal's language — "to mark the disapproval of society" — is
explicitly expressive. The punishment communicates a message about
who the police are supposed to be and what society expects of them.

C. Vindication of the Law

A closely related idea is that punishment is necessary to show that the
law "really means what it says." A law that is consistently breached
without enforcement progressively loses its character as law. By
enforcing it — by punishing those who break it — the State demonstrates
that the rule of law is not merely aspirational but carries real
consequences. This is sometimes described as the law's need to be
vindicated through enforcement.

Part Four: Procedural Fairness as a Prerequisite to

Punishment
A critical but sometimes overlooked dimension of punishment in
Ghanaian law is this: before any punishment can lawfully be imposed, the
process by which guilt is established must itself be fair and legally sound.
A conviction built on procedural error or inadmissible evidence cannot
form the foundation for a valid sentence.

Darkurugu v Republic [1989-90] 1 GLR 308

The appellant pleaded guilty but the procedure was fundamentally flawed
— the magistrate had effectively prejudged the matter, and the plea was
not voluntary or properly informed. The Court quashed the conviction for
deceit of a public officer and reduced the punishment for the fraud
charge.
The principle: a sentence built on an invalid plea process is unsafe.
Procedural fairness is not a technicality — it is the bedrock of legitimate
punishment.
Gundaa v Republic [1989-90] 2 GLR 50
The appellant was convicted of threat of death after the magistrate
misclassified his "guilty with explanation" as a straightforward guilty
plea. The court should have entered a not guilty plea and proceeded to
trial. The sentence of two years' imprisonment with hard labour was set
aside.
The principle: a sentence is invalid if based on an improper plea
classification or a misinterpretation of the accused's statement. Strict
procedural safeguards must be followed before punishment can be
imposed.

Apaloo & Others v Republic [1975] 1 GLR 156

The appellants were convicted in a serious violent crime case but the
trial court had wrongly relied on inadmissible hearsay evidence. The
Court of Appeal set aside the conviction.
The principle: a person cannot be lawfully punished unless the conviction
rests on admissible, properly evaluated evidence. A wrong evidential
foundation equals wrongful punishment.

Kwadu v The Republic [1971] 1 GLR 272

The appellant was convicted of possessing forged banknotes. The trial
court sentenced him to seven years, describing him as having "criminal
propensities" based on previous convictions for stealing. The Court of
Appeal reduced the sentence to three years.
The principle: prior convictions may be an aggravating factor, but they
cannot alone justify excessive punishment. Sentencing must still be
proportionate to the offence before the court. Labelling an accused as
having "criminal propensities" does not give courts licence to impose
punishments that exceed what the current offence merits.

Synthesis: The Mixed Approach in Ghanaian Courts

No single theory of punishment is foolproof. Retributivism can become
revenge if untethered from proportionality. Utilitarianism can become
oppressive if it allows the punishment of the innocent for social benefit.
Each theory illuminates something important about why we punish, but
none tells the whole story.
The influential jurisprudential scholar H.L.A. Hart offered a helpful
framework. He distinguished between:
• The General Justifying Aim of punishment — which is utilitarian:
the overall goal is the reduction of crime and the protection of
society.
• The Principles of Distribution — which are retributive: punishment
may only be inflicted on the guilty, and only to the extent their guilt
warrants.
This is, in essence, what Ghanaian courts do in practice. They balance
the theories, seeking sentences that are:
• Harsh enough to be deterrent (utilitarian)
• Short enough to allow for reformation (utilitarian)
• Proportionate to the offence and the offender's culpability
(retributive)
• Expressive of society's condemnation (expressive/denunciatory)
• Built on a procedurally sound foundation (constitutional)

The richness of punishment theory is not a weakness — it is a sign that a

mature legal system recognises that no single value can capture
everything worth caring about when the State deprives a person of their
liberty.

Quick Reference: Summary of Theories and Key

Cases
Retributive Theories
• Classic Retribution (Lex Talionis): Eye for an eye; offender suffers
as victim suffered. Critique: revenge-based, impractical.
• Proportionality: Punishment must fit the crime and circumstances.
Key case: Melfa v Republic [1974].

Utilitarian Theories
• General Deterrence: Severe sentences deter society. Key case:
Kwashie v Republic [1971].
• Specific Deterrence: Punishment discourages reoffending by the
individual.
• Prevention/Incapacitation: Physical removal prevents further
offending.
• Reform & Rehabilitation: Punishment should help the offender turn
their life around. Key cases: Abu v Republic [1980]; Dakurugu v
Republic [1989-90].

Other Theories
• Atonement & Reparation: Offender compensates the victim.
Statutory basis: ss. 35 & 73, Courts Act 1993 (Act 459).
• Expressive/Denunciatory: Punishment as society's formal
condemnation. Associated with: James Fitzjames Stephen.
• Vindication of the Law: Enforcement demonstrates that law means
what it says.

Procedural Principles
• Valid conviction required: Apaloo v Republic [1975] — no
punishment on inadmissible evidence.
• Proper plea procedure: Darkurugu v Republic; Gundaa v Republic
— flawed plea = unsafe conviction and sentence.
 • No punitive exaggeration: Kwadu v Republic — prior convictions
are an aggravating factor, not a blank cheque for excessive
sentencing.

Criminal Law — Week 4 Notes | Kofi Agyena Agyeman, Esq.