THE LAW ON MURDER: A JUXTAPOSITION BETWEEN THE CRIMINAL JURISPRUDENCE IN THE USA AND GHANA; A CASE STUDY OF THE US-BASED GHANAIAN PASTOR WHO ALLEGEDLY MURDERED HIS WIFE By Abigail Asantewaa Opoku

 

INTRODUCTION

A few weeks ago, the media was abuzz with the news of a US-based Ghanaian pastor who shot his wife Barbara Tommey (now deceased) in cold blood in Florida, United States. According to news reports, it appeared that the threat to kill her was clearly written on the wall after videos and audios of various confrontations of their abusive marriage surfaced on social media prior to the murder. In one of the videos, the accused (Sylvester Ofori) clearly threatened to end the life of the deceased in the presence of her siblings, one of whom was filming the whole incident. The deceased arrived at the Navy Federal Credit Union where she worked the following day but she was gunned down 7 times by her estranged husband. Sylvester Ofori’s heinous crime was, however, captured on a CCTV camera and he was subsequently arrested. He is currently facing a first degree murder charge .

This piece seeks to juxtapose the law on murder in Ghana with that in the US, specifically Florida in relation to the murder of the late Barbara Ofori. Considering the fact that both the deceased and the accused are Ghanaians, would it have played out differently with regard to the accused’s criminal liability had the crime taken place in Ghana?

THE AMERICAN PERSPECTIVE ( FLORIDA)

The United States is made up of a total of 50 states. Generally, the criminal justice system depends on the particular state a person finds himself. Most states separate murder charges into two main categories; first degree murder and second degree murder. According to CNN, however, Minnesota, Florida and Pennsylvania are the only three states in the US to have three degrees of murder; first degree, second degree and third degree murder. These degrees depends on how the crime takes place and they determine the outcome of the sentencing.

According to the criminal statutes in Florida, three elements are necessary to qualify as a first degree murder charge. There ought to be mens rea (intent), actus reus (physical act) and motive. Mens rea simply means to have “a guilty mind.” The rationale behind the rule is that it is wrong for society to punish those who innocently cause harm. Actus reus literally means “prohibited act,” and it generally refers to an overt act done in furtherance of a crime. Actus reus thus consists of the doing of an act or in some cases, the omission to perform an act. With regard to motive, it means there ought to be a moving power which impels a person to commit a crime. In the ordinary conduct of human affairs, when a heinous act is committed by him, there is probably some cause inducing him to do so. Thus, the crime ought to have been premeditated. Motive itself is not a crime. It merely assists a court to connect the accused with the act.

So in relation to first degree murder, there ought to be premeditation, an overt or physical act and an intent to kill(mens rea).  For a charge of first degree murder based on a premeditated killing, the prosecution must establish an advance plan or design formed to carry out the homicide. First degree murder is a capital felony in Florida. For a capital felony, the state may pursue the death penalty. However, if the court finds at the sentencing stage that the defendant should not receive the death penalty, state law requires a sentence of life imprisonment without the possibility of a parole.

Second degree murder has only 2 elements; actus reus and mens rea. Under Florida Statute 782. 04(2)-(3), this degree of murder is committed when a person commits murder with a depraved mind (without premeditated design). Thus in this case, it ought to be an intentional killing that lacks premeditation but must only be intended to cause death. In other words, there must be no prior or advance plan to kill on the part of the accused unlike first degree murder. In Florida, the penalty is life imprisonment, or life on probation and a 10,000 dollar fine.

When it comes to third degree murder, the lines are different. Third degree murder has only one element; actus reus. Thus, the murder must be caused by unintentionally causing someone’s death while committing an unlawful act. Unlike first and second degree murder where intent is generally required, third degree murder talks of no intent. In Florida, the penalty is up to 15 years in prison.

THE GHANAIAN CONTEXT

The Ghanaian position on the law on murder is quite different. Crimes in Ghana are dealt with under the Criminal and Other Offences Act, 1960 (Act 29). Crimes are also graded according to their gravity and seriousness. There are capital offences (offences punishable by death) such as murder, treason and high treason. Under section 304 of Criminal Procedure Act, 1960 (Act 30), the execution may be by hanging, lethal injection or electrocution. The next are felonies. Section 296 of Act 30 states that first degree felonies normally attract a sentence of up to life imprisonment. Examples include causing harm with the use of an offensive weapon. Second degree felonies are considered less in gravity than first degree felonies and attract a term of imprisonment not exceeding 10 years. Examples are abortion, causing harm, and threat of death. Then again, there are misdemeanors. Misdemeanors are less in gravity than felonies. They normally attract a term of imprisonment not exceeding 3 years. Examples are threat of harm, assault.

Moving forward, section 46 of Act 29 criminalizes murder by stating that a person who commits murder is liable to suffer death. This makes murder a capital offence in Ghana. Section 47 of Act 29 further provides for the definition of murder in Ghana. It states that, 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. In clearer words, section 47 of Act 29 defines murder as the intentional killing through unlawful harm. From this definition, four essential elements constitute murder; the death of a person, the death being caused by an unlawful harm, the accused ought to have inflicted the unlawful harm and that, the accused intended killing the deceased. These elements were reiterated in R v Yeboah [1974] 1 GLR 268-271. From this, the actus reus, which is the physical element is the infliction of unlawful harm resulting in death and the mens rea here is the intent to kill.

With regard to the first element, a person ought to have been dead. One cannot be culpable or deemed to be culpable of the murder of another if the latter is still alive. Secondly, the death must be caused by unlawful harm. Causation is provided for in sections 13, 64 and 81 of Act 29 and must be read together. Section 64 of Act 29 deals with causing an event which results in death. It states that the death of a person is caused by harm, if by reason of the harm, death has happened otherwise or sooner, by however short a time, than it would probably have happened but for the harm. Thus if the death is as a result of harm, the harm caused the death by however short a time. In relation to the death being occasioned by unlawful harm, section 1 of Act 29 defines harm as any bodily hurt, disease, or disorder, whether permanent or temporary. Per the definition of murder in section 47, harm alone will not suffice as an essential element of murder. The harm must be unlawful. Unlawful harm is defined in section 76 as harm which is caused intentionally or negligently, and without any lawful justification or excuse. Section 31 of Act 29 provides for the grounds on which the use of force or harm will be justified. So to constitute lawful justification, the harm must be exercised under any of the conditions specified in section 31 of Act 29.

Furthermore, for a crime to be made out, there must be a causal link between the accused’s act and the resulting event. This link tries to determine whether the accused is responsible for causing or bringing about an event. Where there is no causal link, a person cannot be held liable for the particular crime. Under section 13(7), it is a question of fact whether an event is fairly and reasonably to be ascribed to a person’s act as having been caused by the act. So here, it must be proved that, the accused’s act caused or contributed to cause an event. If the event can’t be attributed to the accused’s act as having been caused or brought about as a result of the accused’s act, the accused will be exculpated from liability. A case in point is R v Yeboah where the High Court held, per Justice Osei-Hwere, that the prosecution ought to provide evidence linking the death of the victim to the accused. Since this was not done, the accused’s charge was not maintainable.

The next element is mens rea, which in this case, is the intent to kill. In Ghana, as contrary to US (herein Florida), the prosecution is not interested in the motive of the culprit or accused. It is interested in his intent to kill. The prosecution is not required to prove the reason behind the killing. Rather, it is interested in the intent of the accused to kill the deceased. In Awedam v The Republic (1982-83) GLR 902-912, the appellate court noted that, “The law did not as a rule require proof of motive as an essential element in a crime. The intent to kill must therefore be discovered from the appellant’s acts and conduct during the events that took place at the time the deceased was knocked down.’’ Intent is also a crucial element which distinguishes the offence of murder from manslaughter in Ghana. In the absence of an intent to kill, the prosecution, at best, can only secure a conviction of manslaughter. In section 51 of Act 29, where a person causes the death of another by unlawful harm, it is manslaughter. This was reaffirmed in the case of Serechi v The Republic[1963] 2 GLR 531-536 where Ollenu JSC stated that, the one essential element of manslaughter which distinguishes it from murder is intent. The element of the offence of manslaughter simpliciter is causing death by unlawful harm.

Intent is governed by section 11 of Act 29. It is generally known that, not even the devil knows the mind of a man, and since this is the case, the guilty intent is usually inferred from the act of the accused. Generally, the law presumes that a man intends the natural and probable consequences of his actions. (See section 11(3) of Act 29). The guilty intent can therefore be proved by the prosecution either directly or indirectly taking into consideration the actus reus.  The need for the prosecution to prove intent to kill was emphasized in the case of Sene v the Republic [1977] 1 GLR 434-440   where the court held that the proper consideration of intent was whether from the circumstances, it can be said that the person who killed had the intention to cause death as distinct from a mere intention to fight. The intention of the accused can be deduced from an examination of the circumstances. It can be inferred from the instrument or weapon used in killing or the manner in which the harm was inflicted.So,it must be shown that he realized that death was a probable consequence of his act when he undertook to engage in it.

CONCLUSION

The present author is of the opinion that the first degree murder as we have it in Florida is inapplicable in Ghana. The equivalence of second degree murder in Florida is murder simpliciter in Ghana as provided for in section 46 of Act 29. Third degree murder in Florida is what we have as manslaughter in Ghana which is provided for in section 51 of Act 29. It must be noted that there are two (2) other forms of manslaughter in Ghana which are not discussed in this article as they are inconsequential for our present discussion.  As already discussed, first degree murder in the US consists of 3 elements; physical act (actus reus) and mens rea and motive. In this situation, Sylvester’s act of shooting the deceased would constitute the actus reus. The mens rea which is the intent to kill is clearly demonstrated since he used a loaded pistol to gun her down seven times. With regard to the element of motive, it seems the accused Mr. Ofori had an inclination to murder his wife because in one of the scenes he threatened to kill her. His motive was plainly as a result of the deceased seeking to divorce him. The author therefore believes that, most likely, Mr. Ofori would be found guilty of his first degree murder charge.

In the Ghanaian setting on the other hand, Mr. Ofori would have most likely been charged with murder contrary to section 46 of Act 29 which is the equivalence of second degree murder in Florida. The prosecution would therefore have to prove both the mens rea and actus reus but there will be no need to prove motive. Barbara Tommey is currently late. It appears she died as a result of infliction of harm by Mr. Ofori. His infliction of harm on the deceased is clearly unjustifiable since it does not fall under any of the justifications listed out in section 31 of Act 29. Lastly, the harm resulted in her death. His intent (mens rea) was to kill because looking at the instrument (loaded pistol) he used to gun her down and the circumstances (shooting her seven times), there can be no other reasonable conclusion than that he knew death would be a consequence of his act when he undertook to engage in it.

Relating the case law and provisions listed above, the present author believes that had the event that took place in Florida occurred in Ghana, the accused would most likely be charged with and subsequently held liable for murder in accordance with section 46 and 47 of Act 29 and would have been made to face the capital punishment imposed by law.