I WILL NOT GO TO JAIL, AGAIN, FOR MY HUSBAND (DOUBLE JEOPARDY) by Maame Serwaa Tuffour

Facts

A husband faked his death and framed his wife for allegedly murdering him, so he could run away with his mistress. Although the man’s body was never found, the court tried and convicted the woman to life imprisonment. After some years had elapsed, the woman was released on parole. She then hunted her husband down and killed him.

 

Should the woman be tried and convicted for actually killing her husband, this time around?

 

Background

A crime is an act that may be followed by criminal proceeding, which may result in punishment (nulla poena sine lege). According to Article 19(11) of the 1992 Constitution of Ghana, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.

In the case of Brown v. Allweather Mechanical Corouting Co Ltd it was opined that the mere fact the word “offence” is used in a statute does not imply that the provision is to be regarded as creating a criminal offence and that sometimes failure to do something is prescribed as an offence although the lawmaker imposed in respect of it, a pecuniary sanction recoverable as a civil debt and not a criminal offence. An example will be fines imposed for minor offences.

According to Sections 47 and 48 of the Criminal Offences Act 1960 (Act 29), a person who intentionally causes the death of another person by an unlawful harm commits murder, unless the murder is reduced to manslaughter by reason of an extreme provocation, or any other matter of partial excuse, as mentioned in section 52 and a person who commits murder shall be liable to suffer death.

It must be noted that although the death penalty is still in our statute books, it was however last carried out in 1993. The current trend for persons who have been sentenced to death is to imprison them for life instead of actually killing them. Such persons live in imminent fear each day as they do not know when the Sword of Damocles will fall on their heads. Literally speaking. However, this is an issue to be discussed another day.

The issue in contention from the facts given above however, is not if there was a murder but if the woman can be made to escape liability through the rule of double jeopardy.

 

 

Double Jeopardy

Double jeopardy is a procedural defence which prevents the accused from being tried again on the same offence and the same facts after a valid conviction or acquittal by a competent court. It is believed to have originated from Roman law, “non bis in idem “(an issue once decided must not be raised again).

According to Article 19(7) of the 1992 Constitution of Ghana, “no person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for the offence, except on the order of a superior court in course of appeal or review proceeding relating to the conviction or acquittal.” This is supported in Section 113 of Act 30.

In the US Supreme Court case of Ball v. United States, it was held that the prohibition is not against being twice punished, but against being twice put in jeopardy, and the accused, whether convicted or acquitted, is equally put in jeopardy in the first trial.

In common law countries like Ghana, pleading autrefois convict (formerly convicted) or autrefois acquit (formerly acquitted) has the same effect.

The rule of double jeopardy, a positivist will say, is guaranteed by it being enshrined in Chapter 5 of the 1992 Constitution of Ghana. Notwithstanding this, Ghana is also bound by this rule by virtue of it being a party to the International Convention on Civil and Political Rights and the European Convention on Human Rights.

 

Act 30 specifically Sections 114-116 talks about the exception to this rule.

 

Section 114—Retrial on Separate Charge.

A person convicted or acquitted of any offence may be afterwards tried for any offence for which charge might have been made against him on the former trial under subsection (2) of section 109.

Section 115—Consequences Supervening or not Known at Time of Former Trial.

A person convicted or acquitted of an act causing consequences which together with the act constitute a different offence from that for which that person was convicted or acquitted, may be afterwards be tried for that last-mentioned offence, if the consequences had not happened at the time when that person was acquitted or convicted.

Section 116—Where Original Court was not Competent to Try Subsequent Charge.

A person convicted or acquitted of any offence may, notwithstanding the conviction or acquittal, be subsequently charged with and tried for any other offence constituted by the same acts which he may have committed Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

 

Analysis

These hypothetical facts caused quite a stir on the internet with some arguing in favoring of the rule of double jeopardy and others asserting that the rule would not apply.

Those who believe that the rule of double jeopardy would apply say so because they believe the offence for which the woman was tried the first time would be the same offence for which she would be tried a second time because she actually killed her husband, this second time. In the words of my friend, “How many times can one man be killed?” They believe that since she was wrongly convicted of murder the first time, it wouldn’t be fair to convict her of murder again.

If we want to have an emotional debate, I’m sure we could go on and on about how the man is wicked for letting his wife serve the sentence and that he got what he deserved and so on and so forth.

 

However, a critical analysis needs to be done of Article 19(7) of the Constitution and Section 113 of Act 30, both of which would prove that in this case, double jeopardy would not apply.

 

The full effect of Article 19(7) is that one cannot be tried again for an offence which has already been acquitted or convicted of or for any other offence which he could have been convicted at the trial of the offence. The case being made here is that the woman committed the actual murder after the trial of the offence as such making the offence not eligible to fall under Article 19(7). Consequently, she should be tried for this offence.

 

A look at Section 113 of Act 30 also says that:

“A person who has been once tried by a Court of competent jurisdiction for an offence, and convicted of the offence, shall not be liable to be tried again on the same facts for the same offence or any other which he could have lawfully been convicted at the first trial unless a retrial is ordered by a Court have do so.”

 

From the facts, it can be said that the woman was tried by a competent court because the case was tried in the High Court which has jurisdiction to try criminal offences. The facts are very vague, however the likelihood of the facts for both instances of murder being the same is almost zero.

In the case where the first time the woman was convicted of killing her husband, it was said to have happened while they were vacationing on a boat. In the second instance where the wife actually killed her husband, the woman killed him with a knife in his home he shared with his girlfriend. Clearly, the facts of both cases are different and as such would merit a different trial for a different offence. The rule of double jeopardy would not apply because she would not be tried on the same facts for the same offence.

Harvard Professor Alan Dershowitz, shared a similar view when he commented on the 1999 movie, Double Jeopardy which has similar facts. He said, “They are two separate incidents. She was falsely accused the first time. And maybe she can sue for that or get some credit. But then she committed an entirely separate, or at least planned to commit, an entirely senate crime the second time.”

Conclusion

The woman will be tried for actually killing her husband after coming from prison. She can institute an action for various reliefs including mental anguish and the court, in exercising its discretion, may or may not decide to reduce her sentence because she has already served time in prison for the false accusation.

 

So, though the husband is very wicked and heartless for making her spend years in prison for not committing a crime in the eyes of the law, it is inconsequential.

 

The heading says, I will not go to prison for my husband again and to that this noble writer says, “sagaa, sagaa wele”.