Case of the week: Glah and Another v. The Republic

Facts:

The appellants were charged in the District Magistrate Court with conduct conducive to a breach of the peace contrary to section 207 of the Criminal Code, 1960 (Act 29).

The first appellant was accused of having affairs with his mother-in-law and his wife’s sister, bearing two children with each one of them. The second appellant was charged with having an affair with the first appellant. They were found guilty and sentenced.

The prosecution argued that their conduct was insulting and likely to cause a breach of the peace, noting that they had been warned by traditional and local authorities to desist from these acts but had not heeded the warnings.

The appellants, through their counsel, argued that having affairs with a mother-in-law or sister-in-law is not an offence under the law. They also contended that the plea of guilty should not have been accepted and that the sentences were excessive.

Holding:

The High Court allowed the appeal, setting aside the convictions and sentences and acquitted and discharged the accused persons. The court held that the acts committed by the appellants were not done in a public place or at a public meeting, which is a requirement for establishing the offence of breach of peace under section 207 of the Criminal Offences Act, 1960 (Act 29).

The court noted that while customary law might frown upon such conduct, it is not a criminal offence under the relevant statute. The court further stated that the prosecution could not prevent an association not prohibited by section 207 simply because they feared opposition from the family.

Implications of the Decision:

This case underscores nulla crimen, nulla poena sine lege principle, which dictates that no one should be held criminally liable for an act that was not criminalized by law at the time the act was committed, and that no punishment should be imposed unless it is authorized by law.

Significant Quote:

“There is no doubt that customary law frowns upon such a conduct but it is not caught by any section of Act 29 and the family cannot take an easy line of things by pursuing their criminal action. The first appellant has lived with and cohabited with these spouses peacefully for over seventeen years and has two children with each of them. If the opposition from the family is now feared then it is the family who should be restrained.”  – Amua J

Commentary/Insight:

The case underscores the fundamental principle that criminal law should not be wielded as a tool to enforce moral or customary standards unless such norms have been clearly codified in written law and with a prescribed punishment, in accordance with Article 19(11) of the 1992 Constitution of Ghana.

The Court’s decision to overturn a conviction based solely on conduct considered “immoral” by societal standards reaffirms the distinction between legal obligations and social expectations.

This decision remains a touchstone for the protection of individual liberties against the encroachment of uncodified social norms.