What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.” Lord Denning in Packer v Packer[1]
INTRODUCTION
Probity and Accountability is not just a cliché introduced in our political lexicon by the then Chairman Flt. Lt. Jerry John Rawlings under the AFRC or PNDC era. It indeed found its way as a core value in the Constitution 1992 which among other things provides in its preamble that
“In the name of the Almighty God, We the People of Ghana, in the exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; in a spirit of friendship and peace with all people of the world, and in solemn declaration and affirmation of our commitment to, Freedom, Justice, Probity and Accountability……….[2].
It is therefore in that light that public office holders who are entrusted with state power and resources in trust for the people of the Republic in whom sovereignty resides[3] must account for their stewardship when called upon so to do, whether during the term or when they have finished their term. That is why it is worrying and not a good sign that the state seems to be struggling to get the former Finance Minister[4] to account for his stewardship to the State as he is facing some charges from the Office of the Special Prosecutor (OSP). Sedina Tamakloe-Attionu, as a former public officer[5] in the previous John Mahama Administration[6] was called upon to face this test in the case of The Republic v Sedina Christine Tamakloe-Attionu and Daniel Axim[7]. She was charged with offences including multiple counts of stealing, conspiracy to steal, willfully causing financial loss to the state, money laundering, causing loss to public property, improper payment of public funds among others. She was arraigned before the Court, given all the constitutional entitlements, tried and sentenced in absentia. It is reported that her passport was withheld as part of her bail conditions but was released to her to seek medical attention outside the Republic and she did not return. The trial proceeded and concluded without her physical presence although she had representation of counsel, she was convicted in absentia and accordingly sentence to imprisonment for 10 years also in absentia on 16th April 2024 by the High Court Accra.[8]
Upon pronouncement of the sentence after trial, legal scholars and academics have sought to discuss ‘when her sentence takes effect’ because by a provision in the Criminal Procedure legislation, a sentence takes effect from, and it includes the day it was pronounced. Criminal law experts like the learned Daniel Korang[9] have suggested a legislative lacuna and posited that her sentence starts from when same was passed and so if she is able to abscond for ten years and her sentence is over, then upon the construction of that section in the Criminal Procedure legislation, she will walk free. Her recent extradition back to the country[10] has ignited this conversation once more, with lawyers arguing about two positions. Some like previously argued by Daniel Korang are of the view that once the sentence was passed in 2024 that’s when the 10 years start, others argue to the contrary that the sentence starts from when she is taken into custody. Since the issue became topical especially with her extradition, public commentary has been rife. It is reported that there is an appeal pending with a process in the public domain filed in February 2026 challenging her sentence and conviction, there are commentary that being a member of the political party presently in government she may be left off the hook. The opposition New Patriotic Party has for instance suggested that there are efforts to help her to evade the 10-year sentence[11], Such proponents take the view having regard to our recent history where the Attorney-General enters nolle prosequi in respect of some cases, like the cases involving Honourable Kwabena Duffour and 7 Others[12], Dr. Johnson Asiamah,[13] Honourable Alhaji Collins Dauda[14] and in other cases agree with the cases of some of the Plaintiffs have brought against the state[15]. Some have suggested that she was under house arrest,[16] although the Minister responsible for Government Communication[17] has debunked that and said she is in the custody of the Ghana Prisons Service,[18] Some have even called for proof of her incarceration after her extradition[19], some like the respected Investigative Journalist Manasseh Azure Awuni did not even trust that she was in custody[20], although he has recently confirmed that she arrived in the Nsawam prisons on 24th June 2026.[21] Indeed, some members of Parliament have even sought to suggest that per their checks, Sedina Tamakloe-Attionu was not in prison custody until June 24, 2026, about fifteen (15) days after her extradition[22].
There seems to be some degree of public interest in this issue. The Author shall refrain and resist the temptation of commenting on the merits of the appeal especially since doing so may not only be sub judice but unethical. The Author does not also intend to comment about the politics of the issue in the public domain. The Author rather offers his contribution to this discussion in this terse piece by arguing that, when a person is tried and sentence in his or her absence, the sentence ought and must commence from when the person is brought back to custody and not otherwise. This is reading the law purposively and as a whole, which lawyers are encouraged to do and not piecemeal reading of the law. In the Author’s view, to argue otherwise will not only lead to legal absurdity but for want of a better word constitutional insanity. The Author provides an analysis of laws and legal principles that form the basis for the view that the sentence of an absconded convict commences when the person is brought physically back into the Republic and this view receives fortification in law.
Constitutional basis for Trials in absentia under Ghanaian law.
Under the law, a person is presumed innocent until proven guilty or until the person pleads guilty, in some cases a person is not even allowed to plead guilty, and a plea of guilt will be entered a not guilty[23]. The law in section 199(5) of Act 30 is that “The Court shall not accept a plea of guilty in the case of an offence punishable by death”. The Constitutional provision is that “a person charged with a criminal offence shall (c) be presumed to be innocent until he is proved or has pleaded guilty.”[24] It is the law that in criminal cases, the accused person must always be present during the trial. Indeed, there are instances where the Courts have had to adjourn cases, not because business cannot be conducted, but simply because the accused person is not present in court or when in custody, has not been brought to the court by the Prison authorities or Police Service as the case may be. There are instances when the business for the day has nothing to do with the physical presence of the accused person, e.g. pretrial disclosures, cross examination of prosecution witnesses etc., yet it is a constitutional imperative that the accused must be present. The Constitution in this regard provides that, “The trial of a person charged with a criminal offence shall take place in his presence unless….”[25] For purposes of this provision ‘his’ implies ‘her’[26]. This provides the basis for insisting on the presence of the accused person in the trial from commencement to the day of sentence and conviction. No proceedings must happen on the blind side of an accused person. The law however anticipates that there may be instances when insisting on the presence of an accused may be challenging and would have the tendency of stultifying the trial.
The law provides the exceptions in two limited instances thus,
“The trial of a person charged with a criminal offence shall take place in his presence unless; - (a) he refused to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or (b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence”. (Emphasis the Author’s).
The Constitution guarantees freedom of movement[27] and so an accused person unless in lawful custody cannot be forced to attend the trial. It therefore means that a person notified of a charge against him or her may elect not to attend the trial in that case unless a bench warrant is issued for his or her arrest, nothing much can be done. The law is that if a person is given an opportunity to be heard and he or she spurns that opportunity, he or she cannot later claim that he or she was not given a hearing. The authorities abound in this regard including the cases of Republic v High Court, Accra, Ex Parte Akita [Egala and Attorney-General Interested Parties][28], Republic v Court of Appeal, Ex Parte Allotey[29] just to mention a few. Therefore, when an accused person has been notified of the charges or the trial and he or she refuses to show up for his trial and the Honourable trial court is convinced that the accused has been duly notified, the trial may proceed, the person’s absence notwithstanding. It is imperative to emphasize that failing to attend may include absconding or jumping bail in breach of the bail conditions, which in itself is a basis for the rescission of the bail or a ground to refuse a subsequent bail application, since whether a person may appear to stand trial or otherwise is one of the considerations for the grant of bail[30]. The other exception is that the accused person is present at the trial, but he or she conducts himself or herself in a manner that makes it impracticable for the trial to proceed in his presence. For example where the accused person during the trial disrupts proceedings by say shouting at the top of his voice during the trial, or has the tendency of moving to assault the trial judge or other court users or any other such behaviour, the court may order the person to be removed and his presence dispensed with. This trial and sentence of Sedina Tamakloe-Attionu in absentia is not the first, neither will it be the last of trials in absentia in this Republic. There are precedents including the case of George Bonsu alias Benjilo v the Republic[31], in which case the first and fifth accused absconded during their trial. The Supreme Court had this to say,
“Since the first and fifth accused persons had been notified of the charges of drug offences against them and their trial started in their presence in the circuit tribunal but they absconded upon the grant of bail to them and they refused thereafter to attend their trial, they had demonstrated by their conduct that they were not prepared to appear for any trial, and the transfer of the case to the Regional Tribunal, a higher court, would not have changed their intention not to attend their trial. Since they had been notified of their trial in accordance with the provisions of article 19(3)(a) of the Constitution, 1992 the mere transfer of their cases to the Regional Tribunal could not be said to have altered the fact that they had earlier been notified of their trial, nor should that be allowed to nullify the earlier notification given to them. Since by their own conduct of leaving the jurisdiction, they had refused to stand trial and had intentionally prevented service of any further documents on them, they could not be allowed to benefit from their misconduct. Accordingly, they would be held to have known of their trial in absentia at the time of their notification. In any case, the trial of the first and the fifth accused in absentia, even if wrong, could not benefit the appellant.”
The Supreme Court therefore affirmed the provision in article 19(3)(a) of the Constitution 1992 that once a person has been notified of a charge against him and fails to make himself available, although the trial ought to have taken place in his presence, the trial would proceed if the person does not make himself available for the trial despite being notified of the charges and trial.
The above stands to reason that the trial and sentence of Sedina Tamakloe-Attionu in absentia was in accordance with law and sanctioned by the Constitution 1992, it is not alien to the criminal law jurisprudence of Ghana and same is therefore ipso facto not open to challenge, especially so when she was notified.
Can a Sentence be retrospective or its effective date be suspended?
The Courts have had the opportunity to pronounce on retrospective sentencing under Ghana law. In the case of the Republic v Uyanwune[32] the court made the following conclusion in that regard,
“Retrospective sentences have serious legal implications. For example, the rights of remand prisoners are different from convicts and remand prisoners who were not convicts and enjoyed all the rights of remand prisoners who were to be convicted as convicts…. An important legal issue in retrospective sentencing is that if a sentence is to take retrospective effect, would the state compensate someone who was on remand for years and was acquitted and discharged after the trial? There is no provision in the law for such a person to get compensation and any sentence which had retrospective effect is bad in law”.
The Author notes the closest the issue of compensation comes is the provision in Article 14(7) of the Constitution 1992 which provides that,
“Where a person who has served the whole or a part of his sentence is acquitted on appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.”
Unless the sentence is prescribed by statute in terms of the minimum and maximum, the length of sentence is in the discretion of the judge, safe that that discretion must be exercised in accordance with law particularly article 296 of the Constitution, 1992. A lot of consideration goes into the sentencing, especially when there is a range (minimum and maximum terms). Judges pass sentences after taking into consideration the facts, the evidence, conduct of the accused among several other circumstances. Recently it was in the news that the learned Chief Justice Paul Baffoe-Boonie had said at his vetting before the Appointment Committee of Parliament, that in the Atta Ayi trial he gave a huge sentence because he wanted the accused to be in prison for a long time so that by the time the accused is released he would have died and gone[33]. A judge once told the Author and his class many years ago that in a trial involving rape, he was compelled to give the accused person upon conviction the maximum sentence of twenty-five (25) years because the victim of the rape was a virgin and that he as a judge at the time had not ‘enjoyed’ a virgin before.
In passing sentences, the courts are guided by the law, the evidence before the court. The law is that a court cannot pass a sentence to take a retrospective effect. The Constitution 1992 however provides that,
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”[34]
This provision only allows a court to consider the number of days or years a person has spent in lawful custody when imposing a sentence upon conviction. If the legislation imposes a minimum sentence, subject to the Constitution 1992, the court cannot, in the Author’s view, reduce the minimum sentence by the period spent in lawful custody. This among others fell for determination of the Court in the case of Ojo and Another v The Republic[35] . In this case, the appellants and two others were tried and convicted on two counts of unlawful importation of narcotic drugs and unlawful possession. They were sentenced to the mandatory term of ten years. They appealed against their sentence to the Court of Appeal on the grounds that since they had been arrested and detained without trial for two years, the two years in lawful custody ought to have been considered in the sentence pursuant to article 14(6) of the Constitution 1992.
At the Court of Appeal, Benin J.A (as he then was) held that,
“Although article 14(6) of the Constitution 1992 enjoined a court before sentencing a convicted person to take into account any period he had spent in lawful custody, since by the provision of section 315(2) of the Criminal Procedure Code, 1960 (Act 30) a sentence of imprisonment should start from the date it was pronounced, a court was not entitled to back-date a sentence. Accordingly, under the law, the judge had to take the period spent in lawful custody into account before imposing the sentence. Thus, when a court imposed a term of imprisonment, it should be presumed to have imposed it in the light of article 14(6) of the Constitution 1992. Accordingly, in the instant case, the tribunal could not have imposed the mandatory ten years imprisonment on the appellants with a direction that it should run from the date the appellants were taken into lawful custody since that would be contrary to the provision of section 315(2) of Act 30. Nor could it have imposed eight years’ imprisonment on them in view of the two years they had spent in lawful custody since such a sentence would be contrary to the mandatory provision of PNDCL 236.”
The Author, although shares the principle above, departs from the view that the imposition of the ten-year minimum sentence can be presumed that same was imposed having taken into consideration of article 14(6) of the Constitution 1992. His Lordship Justice Stephen Allan Brobbey will deliver himself in that regard thus,
“As a general guide, trial courts will be well advised to state expressly in the record of proceedings when they take a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison has been announced publicly by the trial judge.”
In the Ojo and Another case, the decision should not be taken blanketly because a court could actually decide to say pass a sentence of 12 years and decide that because the accused had spent two years in lawful custody, the term will be for 10 years effective the time of passage of the sentence and that would also be in accordance with article 14(6) of the Constitution 1992. Secondly, the Author does not think imposing an eight-year term for the offence will be out of place. The requirement for taking into consideration the time spent in lawful custody is a constitutional provision and therefore on a higher pedestal than an Act of Parliament, and in the hierarchy of laws, the Act of Parliament (which imposes the minimum sentence) must always give way to a constitutional imperative. If for instance the minimum sentence is ten years and the accused had spent ten years in lawful custody, a court can so pronounce.
In the case of Charles Ansah v the Republic, the Court of Appeal said,
“We have noticed that in sentencing the Appellant and his gang, the learned trial judge made the “sentence to take effect from the day they were arrested and placed in lawful custody. The judge, however, does not have jurisdiction to impose a sentence to take retrospective effect from the date of arrest, that is to say 14th day of March 2012. This is in clear breach of section 315(3) of the Criminal and Other Offences Procedure Act, 1960 (Act 30). This section provides that a sentence if imprisonment commenced on and includes the day the judgment was delivered…”
From the above decisions it appears their Lordships take a view that courts luck jurisdictions to impose sentences to take retrospective effect because it sins against section 315(3) of Act 30. The Author however takes the view that that may conflict with the provisions in Article 14(6) of the Constitution 1992.
The Courts, in very limited circumstances, are able to suspend sentences to take effect at a subsequent date or time. Section 313A of the Criminal and Other Offences (Procedure) Act 1960 (Act 30) provides that,
“(1) Where a woman is convicted of a non-capital offence, the Court shall order that the woman be tested for pregnancy unless the Court has reasonable grounds to believe that the woman is post-menopausal. (2) Where the woman tests positive for pregnancy, the Court shall pass on her a non-custodial sentence or may suspend the sentence for a period that it may determine. (3) Where the sentence is suspended, the Court shall explain to the offender in ordinary language that if another offence is committed during the period of the suspension, she will be liable to serve the sentence for the original offence in addition to the sentence for the new offence”. (emphasis the Author’s).
From the above, the law provides that in the event of sentencing a female convict, it ought to ascertain whether she is pregnant or not and if she is pregnant, the court may suspend the sentence or may rather impose a non-custodial sentence. The reason the court would do this may be because a pregnant woman could not serve the imprisonment hence the suspension. The question even arises whether the suspension under section 313A is suspension of the sentence or the effective date of commencement?
The Author suggests that there are instances where a sentence of imprisonment is suspended by operation of law. This could either be at the commencement or during the term of the service of the sentence of imprisonment. There is authority for the position that a sentence is suspended when an accused person is granted bail pending appeal against the sentence or conviction. Section 33 of the Courts Act 1993 (Act 459) provides that,
“The time during which an appellant is released on bail pending the determination of the appeal shall not count as part of a term of imprisonment under the sentence.”[36]
The Controversy?
The seeming legal controversy however is when does Sedina Tamakloe-Attionu’s sentence commence since same was passed in absentia. Stated generally, when does the sentence of a person pronounced in his or her absence from the Republic take effect? Some scholars argue forcefully, which the Author disagrees that, as the law stands currently, the sentence of Sedina Tamakloe-Attionu and the duration started counting from the day it was pronounced. Leading this charge is Daniel Korang who in his paper[37] ignited this discussion and concluded thus, “It is clear that the present sentencing regime in Ghana has a serious lacuna and needs immediate reforms. An offender who is tried in absentia may escape justice if he fails to appear to serve the sentence. The law does not provide for suspended sentences. This makes trial in absentia unnecessary and imprudent in the first place. Why impose a sentence on an absconding offender when you have no power to suspend the sentence to be served in the future? This weakness in the law is an incentive for offenders to choose trial in absentia. Indeed, imposition of a sentence in absentia may be a judicial exercise in futility if the offender fails to submit himself or is not re-arrested. This reality must spark concern for reforms to be made in our sentencing laws in Ghana. It is high time we considered the introduction of suspended sentences, parole system, and community service as sentencing alternatives in our law. I submit that a Sentencing Act should be enacted to provide a broad legal and more effective regime for criminal punishment in Ghana. The sentencing options in our present law are not only limited, they are also archaic and do not produce outcomes consistent with modern notions of fundamental justice.”
In his paper[38], he discusses what in his view is the implication of the ten-year sentencing in absentia thus, “Now, what is the implication of the law on the ten-year sentence imposed on the former CEO of MASLOC in absentia? By the judgment of the Accra High Court, Sedina Christine Tamakloe-Attionu is to serve a jail term of ten years. By law, the jail term took effect from the date of the judgment, i.e. 16th April, 2024. The sentence cannot be suspended to await her extradition to Ghana. If Sedina Christine Tamakloe-Attionu is able to escape for the next ten years, her sentence would elapse and she cannot be punished again to serve another jail term for the same offence. Again, even though she may be extradited to serve her punishment, she would only be liable to serve the remainder of the sentence at the time of her extradition. Thus, if she is extradited or voluntarily submits herself to the authorities after five years, she would only serve the remaining five years. This is a stark absurdity and weakness in our present sentencing regime.”
To the proponents of this view, their anchor legal basis is Section 315 (3) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which provides that, “A sentence of imprisonment commence on and includes the day on which it is pronounced”. They argue that once the sentence is imposed, it takes effect from the date it was given since the court has no power to either suspend or pass a sentence to take a retrospective effect. This is the case in their view whether the accused person is in the jurisdiction to commence the term of imprisonment or not.
In the respectful view of the Author, the view above is unsupported by a wholistic view and interpretation of the law. There are various reasons in the law why this view is not tenable and ought not to be supported as it yields to an avoidable absurdity. The Author transitions into the argument on the other side.
The argument on the other side
The Author suggests that the above view is not and cannot be tenable and proceeding in that manner would amount to legal absurdity and constitutional insanity. The purpose of sentence is among others to punish an offender and in some instances to reform such a person. None of these purposes of sentence would be achieved if the argument above that the sentence of an absconding convict takes effect from the date of sentencing is adopted as the proper position of the law. For purposes of this paper, if the sentence is to punish or reform the offender and the offender for some reason is able to abscond, then the sentence is made nugatory, the purpose is not achieved, and fun is made of the criminal justice system.
For purposes of this paper the Author elects to reproduce the said section 315 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in extenso.
The said section is in these terms,
“315 (1) Where a person is sentenced to a term of imprisonment, the Court which sentenced that person shall issue a warrant of commitment ordering the carrying out of the sentence in a prison in the Republic. (2) The warrant is the authority to the police and prison officers to take, convey, and keep that person and to any other person for carrying into effect the sentence described in the warrant. (3) A sentence of imprisonment commence on and includes the day on which it is pronounced. (4) Where the accused is confined in a prison in pursuance of the warrant, the superintendent in charge of the prison shall have custody of the warrant, and on the release of the prisoner, the Superintendent shall endorse the date of the prisoner’s release on the warrant and shall return the warrant to the Court which issued it.”
A liberal and purposive reading of the whole section 315 exposes the absurdity in the legal thinking that the sentence commences from the date of passage and so a person not in custody, not in the Republic or who has absconded would upon return only serve the remainder of the term. The Author suggests that the presumption from the combined effect of Article 19(3) of the Constitution 1992 and section 315 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) is that at all times, the accused person who will be standing the trial will be in the Republic and the trial would be taking place in his or her presence. Section 315(1) of Act 30 means that upon the sentencing of an accused into prison, the court that pronounced the sentence shall caused to be issued a warrant of commitment ordering the carrying out of the sentence in the Republic. To the Author’s respectful mind, the sentence can only be carried out in the Republic if the accused person is within the jurisdiction and not when the person has absconded, because an absconding accused person cannot be ordered to carry out the sentence in a prison in the Republic unless the person is brought back into the Republic. Subsection 2 of section 315 makes the point clearer, it implies that the warrant issued under subsection 1 of section 315 is the authority or mandate to the police and officials of the prison to take, convey and keep the sentenced person and to any other person for carrying into effect the sentence therein described. It is suggested that without the person being in the country or lawful custody, the person cannot be taken, conveyed or kept in the prison. Under subsection 4, when the accused is in confinement in a prison pursuant to the warrant issued under subsection 1, the superintendent in charge of the prison shall hold custody of the warrant and on the release of the prisoner, the superintendent is required to endorse the date of the prisoner’s release on the warrant and shall return the warrant to the issuing court. It is seen that from these subsections, at all times, the law proceeds on the basis that the accused person is within custody and not when the person has absconded or jumped bail. The intendment of the law maker is that the person once sentenced will serve the full term unless granted pardon under the Constitutionally provided means under the Prerogative of Mercy.[39] That is the reason why subsection 4 provides that upon the release of the prisoner the warrant shall among others be returned to the Court which issued same. Section 315(3) of Act 30, which is the anchor for the contrary view, ought to be construed within the context provided above, any other construction will amount to an avoidable absurdity.
It is the Author’s view humbly that, the above construction would amount to a person benefiting from his or her own illegality. In the case of Beresford v Royal Insurance Co. Ltd[40], the court held that,
“the Courts will not recognize a benefit accruing to a criminal from his crime”[41].
In the case of Gala v Preston[42], the Australian High Court held that it would be
“wholly repugnant to accept standards of the law if one participant in an illegal activity could “ameliorate his position at the expense of the other in that situation”.
The old equitable maxim nemo ex suo delicto meliorem suam conditionem facare potest – no wrongdoer should profit from his own wrongdoing is trite law. A person who absconds after conviction and sentence cannot be heard to argue that he or she should serve a lesser term because part of the sentence had been served while away by virtue of section 315(3) of Act 30, neither should that argument be contemplated upon a true reading of the law.
In Ghana, the apex Court in the Benjilo case said thus,
“Since by their own conduct of leaving the jurisdiction, they had refused to stand trial and had intentionally prevented service of any further documents on them, they could not be allowed to benefit from their misconduct. Accordingly, they would be held to have known of their trial in absentia at the time of their notification. In any case, the trial of the first and the fifth accused in absentia, even if wrong, could not benefit the appellant.”[43]
The Supreme Court in the case of Richmond Boamah Berima v Albert Nanar, Janet Opoku and Pastor Dan Cato,[44] said thus,
“The maxim “He who comes to Equity must come with clean hands” is a maxim founded on morality and common sense. A person seeking to benefit from his own wrongdoing should not be supported by a court to achieve that aim.”
The apex Court found it unconscionable that a person should be supported by a Court of Equity to benefit from his own wrong in that matter. A person who is standing trial must be present in the Republic unless the Honourable Court otherwise directs. When a person decides to jump bail or absconds, that act itself is an act that ought not be encouraged and if such a person stays outside for some time immediately after the sentence, it cannot be said that by virtue of section 315(3) of Act 30, he or she has served part of the sentence so he or she should only serve the remainder. That in itself would mean a person benefiting from his or her own wrong, an act the law must frown upon if not punished.
The Courts Act 1993, (Act 459)
The Author disagrees with the view that a sentence takes effect from the day it was passed even for absconding accused persons and same will be demonstrated with aid of provisions in the Courts Act 1993 (Act 459). It is the Author’s view that in the proper circumstances the Court or Judge can so direct and sentences in some instances can be suspended by the operation of law. The law is that, “Where an appeal is lodged by a person entitled to appeal, the Court to which the appeal is made may, pending the hearing and for reasons to be recorded by it in writing, order that the execution of the sentence or the order appealed against be suspended.”[45] In the Author’s humble view, It is unsupported that a court cannot suspend a sentence once imposed or pronounced. The Courts Act, 1993 (Act 459) in section 33(4) further thus,
“Subject to subsection (3) and to the directions given by the Court, a sentence of imprisonment begins to run as from the day on which the prisoner is received into prison under the sentence” (Emphasis the Author’s).
Subsection 3 of section 33 of the Courts Act is in these terms,
“The time during which an appellant is released on bail pending the determination of the appeal shall not count as part of a term of imprisonment under the sentence.”
This suggests that a sentence can be suspended by operation of law when the accused person is granted bail. Upon being granted bail, he or she is released, and the sentence is suspended from the date of his release and he or she would continue the term when the appeal is unsuccessful. Contrary to the view held by other practitioners anchored on section 315 (3) of Act 30, Section 33(4) of Act 459, which is a subsequent legislation is clear that among others, a sentence of imprisonment does not commence from the day of pronouncement, but rather from the day on which the accused person or prisoner is received into prison custody. This position in the Author’s view displaces the view and the construction placed on section 315(3) of the Criminal and Other Offences (Procedure) Act 1960 (Act 30.) The Author is fortified that, upon a proper construction of the law as a whole, the sentence of a person in absentia commenced from when that person is received into custody and no other. As long as the person is not in custody, the sentence has not commenced, and time will not run until the person is in custody. Based on the above, it can be argued that the sentence of Sedina Tamakloe-Attionu started when she was handed over to the Prison Authority and no other.
Common Sense as an aid to interpretation
In interpreting laws, common sense is one of the approaches resorted to. It is suggested that for people who have absconded from the trial, section 315(3) does not apply to them. Applying that rule to such people would defeat the commonsensical approach to interpretation of statutes. In his paper, Statutory Interpretation: Mostly Common Sense[46],
The Honourable Justice John Middleton, posits that,
“…The principle of statutory construction should not become too prescriptive, and in the main, common sense should prevail in interpreting any statute…”.
On their part D C Pearce and R S Geddes in their book on statutory interpretation[47] would deliver themselves jointly thus,
“Legislation is, at its heart, an instrument of communication. For this reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: ‘What message is the legislature trying to convey in this communication”
The above calls for construing legislation with common sense as a guide and it is suggested that any construction of a statute that sins against common sense must be jettisoned. Indeed, it is trite that if a statute produces two interpretations, the commonsensical construction would be preferred to the one that leads to absurdity.
Purpose of Punishment
The end of criminal proceedings may be an acquittal, discharge, conviction or sentence. An acquittal is when the person after the trial has his or her innocence confirmed, discharge is when the prosecution is discontinued without a trial, either due to want of prosecution, filed a nolle prosequi or any other reason so the accused is let go but a discharge does not bar the prosecution from rearresting the accused. The law is that the discharge of an accused shall not operate as a bar to subsequent proceedings against the accused in respect of the same case.[48] Conviction is when the accused person has been found guilty of an offence after the trial. Upon conviction, the next step is for the court to sentence by imposing a punishment on the accused person for the wrong done. According to the respected, A.N.E Amissah, in his celebrated book, ‘Criminal Procedure in Ghana’,
“A person who has been tried and convicted of an offence may be punished by the trial court. The type of sentence imposed upon him depends on the nature of the offence he has committed and the penalty set by the law for the offence. It also depends on the view that the trial judge or magistrate takes of the conduct of the particular offender and other matters connected with the particular offence. Generally, the trial judge has a wide discretion as to what punishment to impose. But at times, his discretion is fettered by statutes imposing mandatory or minimum penalties…..”
According to the respected jurist and author, Justice Stephen Alan Brobbey[49] in his valuable book, ‘’Practice and Procedure in the Trial Courts and Tribunals of Ghana,[50]
“Punishment, in its literal sense, is the infliction of pain or suffering on a person. From time immemorial, punishment has been considered the logical sequel to the infraction of social and legal norms.”
This seems to be the basis for sentencing even in modern jurisprudence. From the above, it is the view of the Author that it is without a doubt that sentencing as a form of punishment has a purpose. It is inter alia to inflict pain on an offender for the offence committed, it may deny the offender some of his or her rights, prevent the future commission of crime, deter others from committing a crime, it may require the offender to pay a fine or any other such. Indeed, the learned A,N,E. Amissah posits in his book that the criminal Procedure legislation of Ghana recognises six types of punishments, namely death, imprisonment, detention, fine, payment of compensation and liability for police supervision[51]. His Lordship Justice Brobbey in his book argues that,
In prehistoric time punishment took varied forms. It included physical elimination or death by hanging or beheading; public ridicule; public humiliation, corporal punishment such as whipping; and public mutilation like cutting off the hands of thieves or the tongues of liars”
From the above, punishment when meted out to citizens is for a purpose. That purpose will never be served if the person is able to abscond from serving the sentence only for the time to lapse and the person freed on the literal interpretation of section 315 (3) of Act 30 that once the sentence takes effect from the day it was pronounced and the person has been able to abscond for the entire period, the person should be deemed to have served the said sentence in absentia. That will be counterintuitive and an obvious absurdity in legal thinking. When the law is read as a whole with purpose in mind, one will not come to this conclusion.
Purposive Interpretation of Legislation - Section 10(4) of Interpretation Act
There are several interpretation schools. The Literalists, Textualism or Strict Constructionism, Intentionalism, Legal Realism/Pragmatism, Originalism, Purposive and Modern Purposive approach to interpretation. The textualists for instance argue that in interpreting, regard must be had to the text based on its plain, ordinary and literal meaning at the time of enactment. This school focuses strictly on the written word in the law and not the assumed intent of the law maker. According to the intentionalism school, the purpose of interpretation is to discover what the authors intended to achieve when they drafted the law. They look beyond the exact words to explore historical context and other materials, among others.
Interpretation of statutes or legislation is done to find the meaning or reasoning behind provisions when they are not apparent on the face of it. Various courts have applied several approaches in interpretation of statutes to either find the purpose or to cure a mischief or a lacuna. In interpretation, sometimes the courts are even called upon to supply words that the law maker did not provide because without such, the provision would be meaningless or absurd. In the case of Frank Agyei Twum v Attorney-General, Bright Akwetey[52] the apex court had to interpret a provision of the Constitution 1992 and supplied a word to make meaning out of the said provision to avoid absurdity. In construing article 146(6) of the Constitution 1992 on whether in the process for removal of the Chief Justice, a prima facie was required. The express provision of the relevant article did not include the prima facie requirement in the removal of the Chief Justice as it did for the removal of a Justice of a Superior Court of Judicature. The Supreme Court in comparing the two provisions (Article 146(3) and 146(6)) said this,
“When one compares Article 146(3) with Article 146(6), it becomes evident that there is a gap in the logical sequence of action under Article 146(6). According to the literal language of Article 146(6), no one is required to examine a petition brought against the Chief Justice to ascertain whether it establishes a prima facie case, before the President refers it to a Committee established by him. Once any petition no matter how frivolous its content are, is presented to the President, then he had a duty to establish a committee to consider it. A literal reading of the provision, therefore, could lead to the floodgates being opened for frivolous and vexatious petitions being continuously filed against the Chief Justice with Supreme Court judges being perpetually tied down to hearing such petitions, alongside the other members of the committee that the President has to appoint. This is a scenario that would weaken the efficacy of the top echelon of the Judiciary”.
In the case of Appiah v Biani,[53] the Court per Lutterodt J (as she then was)[54] was called upon to construe section 4 of PNDCL 111 whether an uncompleted building under the estate of the deceased can be construed as a house under section 4 of PNDCL 111. The court held that,
“the Intestate Succession Law, 1985 (PNDCL 111) did not define what a “house was”, but on a liberal interpretation, a house meant a building for dwelling in, dwelling place and must therefore have a roof, walls and windows. On a literal interpretation therefore, an uncompleted house would not be a house. But the clear provisions of PNDCL 111 was that on a spouse’s death intestate hos self-acquired house should devolve on the surviving spouse and children. And in order to achieve that legislative purpose a house would be defined to include any building or part thereof which was acquired or intended to be acquired and would include both a residential and commercial house. Accordingly, an uncompleted house was a house within the meaning of section 4 of PLNCL 111. Therefore the uncompleted house of the deceased would devolve on the plaintiff and their children.”
The current approach to interpretation of statutes calls for the use of the Modern Purposive Approach (MOPA) to interpretation. This approach has been used by the courts in several decisions and in Ghana some of the proponents of this school of interpretation has been the respected Prof. Samuel Kofi Date Bah[55] and his Lordship Justice Sir Dennis Dominic Adjei[56] just to mention a few. This approach to interpretation requires the simultaneous reconciliation of the three intents being, (1) the subjective intent, which is the original intent of the author at the time of framing, (2) the Objective intent which is the intent of the hypothetical reasonable man on the street at the time of the interpretation of the law and (3) the Ultimate purpose which is the synthesized constant objective achieved after balancing both subjective and objective intent. It is when these three tests are done that one can say the modern purposive interpretation has been employed.
Ghana’s Interpretation Act, 2009 (Act 792) provides largely on how laws are to be construed in Ghana. In section 10 (4) it provides thus,
“Without prejudice to any other provision of this section, a Court shall construe or interpret a provision of the Constitution or any other law in a manner (a) that promotes the rule of law and values of good governance, (b) that advances human rights and fundamental freedoms, (c) that permits the creative development of provisions of the Constitutions and the laws of Ghana, and (d) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana”. (emphasis the Author’s)
From the Interpretation Act, statutes are to be construed purposively to achieve the purpose for which the legislation was enacted. The law must be construed in a manner that promotes the rule of law and good governance. The question to pose is whether the construction of section 315 (3) of the Criminal Procedure and Other Offences Act 1960 (Act 30) in the manner (that the sentence of a person who has absconded takes effect from the day of pronouncement) promotes the rule of law and values of good governance? The Author is unable to answer this question in the affirmative. Rule of law and good governance require that people who are put in public office and positions of trust render accounts of their stewardship whether during or after leaving office. When the person leaves office and is being called to answer, that’s rule of law and good governance, so when a person absconds and is sentenced in absentia, it is against the rule of law and good governance to argue in the least that by virtue of section 315(3) of Act 30, the sentence takes effect from the day of passage even when the person is not in custody and can in no way serve the sentence from the day the sentence is passed. It is further suggested that the argument that the sentence takes effect from the day it was passed sins against section 10(4)(d) because it does not avoid technicalities and they defeat the purpose and spirit of the Constitution, 1992 and any other laws. The Author suggests that it is against the spirit of the Constitution because section 315 construed purposively will not lead to the conclusion that a person sentenced in absentia will take effect even though the person is not in the custody of the Republic.
Theories of Punishments
Again, the argument defeats all the theories of punishment known to criminal jurisprudence. According to Justice Stephen Allan Brobbey in his book[57],
“In a broad sense of the major theories of punishment which have been evolved in penology over time fall into three main categories, namely, (a) Retributive theories; (b) Utilitarian theories; and (c) Integrative theories”
He continues on the Retributive theory thus,
“Proponents of this theory advocate that crime is justification for its punishment. The underlying principle of the theory is the restoration of moral balance in society. The theory inter alia postulates that justice demands that the offender be made to suffer in proportion to the harm that has been caused to the society. This theory, therefore, considers punishment as an expression of the community’s disapproval of crime and holds that pain or loss is inflicted on an individual because he deserved it.”
For the Utilitarian theory, the learned Brobbey said thus,
“The protagonists of utilitarian theories of punishment hold the view that punishment is justifiable only if the consequences are such as to save society the commission of a similar offence or repetition of similar conduct in the future.”
According to him, this theory has a preventive aspect and deterrent aspect. The preventive is directed at the offender to prevent him from committing that offence later, while the deterrent aspect is to deter the offender and other members of society from committing similar offence. In the Author’s view the above and many others provide theoretical underpinnings for imposing punishment on offenders. None of these theories will be accomplished if an absconding offender’s sentence takes effect on the day same was pronounced with the effect that the sentence can even be served while the offender has absconded, in the Author’s view that will be counterintuitive to say the least.
Presumption in favour of construction most agreeable to reason and justice.
It is a presumption in interpretation that the most preferred construction is one that accords with reason and justice. The Author suggests that any construction that does not conform to reason and justice must be jettisoned without delay. The respected legal writer, Joseph Kobina Essel Edzie in his book, Modern Purposive Approach to Interpretation in Ghana, edited by Albert Adaare,[58]says that,
“It is also presumed under the modern purposive approach that the legislature is, inter alia, rational and moral and only intends consequences that accord with the norms of reason and justice, legal principles, or otherwise consistent with its object in enacting particular legislation or part thereof”.
In Waugh v Pedneault[59], O’Halloran J had this to say,
“The legislature cannot be presumed to act unreasonable or unjustly, for that would be acting against the public interest. The members of the Legislature are elected by the people to protect the public interest, and that means acting fairly and justly in all circumstances. Words used in enactments of the Legislature must be construed upon that premise. That is the real ‘intent’ of the Legislature. That is why words in an Act of the Legislature are not restricted to what are sometimes called their “ordinary” or “literal” meaning, but are to be extended flexibly to include the most reasonable meaning which can be extracted from the purpose and object of what is sought to be accomplished by the statute.”
Section 315(3) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) construed in this light therefore would not lead to the interpretation that the sentence commences even when the convicted person has absconded. This will yield to an obvious absurdity. In his invaluable book referred to supra, Edzie refers to Driedger as follows,
“… avoiding absurdity is a good reason to prefer one interpretation to another where the words of the legislature text allow for more than one interpretation; and even where the words are clear, the ordinary meaning may still be rejected to avoid absurdity.”
It is a cardinal rule of interpretation that, when the construction of statutes produces two meanings, the one that leads to absurdity should be rejected and the one that saves the provision and advances the purpose be adopted.
It is the view of the Author therefore that, the entire section 315 and indeed the entire Act 30 must be read as a whole, together with other laws and when same is done, no one would come to the conclusion that just because of section 315(3) of Act 30, a sentence passed takes effect from the date of sentence, a person sentenced in absentia can evade serving the term by just absconding for the duration of the sentence.
Conclusion
In conclusion it is suggested by the Author that when section 315 (3) is read as a whole with all the legal principles above, one can conclude that the sentence of a person in absentia does not start from when the sentence was passed but when the person is brought into custody to serve the term in the Republic. The contrary interpretation is a product of literal interpretation of a narrow provision in the legislation with the resultant absurdity. The courts have moved away from such approaches to interpretation. The law must be read as a whole with the purpose of the law in mind and as a guide to its construction. The law must also not be read in isolation but read together with other legislation. It is only when that is done that the true and proper construction will be obtained and a construction that yields to an absurdity must be avoided. The sentence of a person in absentia therefore commences from when the person is extradited or brought back to custody of the Republic and that is only when the sentence imposed by the court can commence and not otherwise as is being argued by some. This view is supported by the law.
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[1] [1953] 2 All ER 127
[2] Preamble to the Constitution, 1992
[3] Article 1, Constitution 1992
[4] Honourable Ken Ofori Atta
[5] Former Chief Executive Officer for MASLOC
[6] 2016 - 2020
[7] [2024] DLHC17436
[8] https://www.graphic.com.gh/news/general-news/ghana-news-former-masloc-boss-jailed-10-years-in-absentia.html
[9] Partner Adom Legal Consult and author of several legal texts
[10] https://www.ghanaweb.com/GhanaHomePage/business/Former-MASLOC-CEO-extradited-to-Ghana-2038338
[11] https://www.modernghana.com/news/1502836/there-are-efforts-to-help-sedina-tamakloe-evade.html
[12]https://www.citinewsroom.com/2025/07/ag-discontinues-prosecution-of-kwabena-duffour-7-others/
[13]https://www.graphic.com.gh/news/general-news/ghana-news-a-g-relieves-62-from-criminal-cases.html
[14]https://www.citinewsroom.com/2025/02/saglemi-housing-project-a-g-drops-charges-against-collins-dauda-four-others/
[15]In the case involving the constitutionality of the Office of the Special Prosecutor, https://www.myjoyonline.com/osps-power-to-prosecute-without-ags-authorisation-unconstitutional-ag-files-at-supreme-court/, the suit by three prominent Ghanaians against the Political Parties, https://www.myjoyonline.com/ag-backs-supreme-court-case-seeking-to-open-party-primaries-to-all-members/
[16]https://www.modernghana.com/news/1503402/sedina-tamakloe-unwell-and-currently-under-house.html
[17] Hon Felix Kwakye Ofosu
[18]https://www.myjoyonline.com/sedina-tamakloe-attionu-in-prison-custody-not-under-house-arrest-kwakye-ofosu/
[19]https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Minority-demands-proof-of-Sedina-Tamakloe-Attionu-s-incarceration-after-extradition-2039876
[20]https://www.citinewsroom.com/2026/06/i-dont-trust-that-sedina-tamakloe-is-in-custody-manasseh-azure/
[21] https://www.myjoyonline.com/confirmed-sedina-tamakloe-attionu-arrived-in-nsawam-on-wednesday-june-24/
[22] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Sedina-Tamakloe-was-not-in-prison-custody-until-June-24-Minority-challenges-government-2040695
[23] Section 199(5) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30)
[24] Article 19(2)(c) of the Constitution 1992
[25] Article 19(3) of the Constitution 1992
[26] Article 297 (e) In this Constitution and in any other law, words importing male persons include female persons
[27] Article 21(1)(g) of the Constitution 1992
[28] [2010] SCGLR 374
[29] [2007-2008] 1 SCGLR 371
[30] Section 96 (5) and (6) of the Criminal and Other Offences Procedure Act 1960 (Act 30)
[31] [1999-2000] 1 GLR 199 SC
[32] (2013) 58 GMJ
[33] https://www.citinewsroom.com/2025/11/chief-justice-nominee-baffoe-bonnie-explains-ataa-ayis-70-year-sentence/
[34] Article 14(6) of the 1992 Constitution
[35] [1999-2000] 1 GLR 169
[36] Section 33 (3) of the Courts Act 1993, (Act 459)
[37] https://www.modernghana.com/news/1306888/trial-in-absentia-and-legal-implications-of-senten.html
[38] https://www.modernghana.com/news/1306888/trial-in-absentia-and-legal-implications-of-senten.html
[39] Article 72 of the Constitution 1992
[40] [1938] AC 586
[41] Per Lord Atkin
[42] [1991] 100 ALR 29
[43] George Bonsu alias Benjilo v the Republic [1999-2000] 1 GLR 199 SC
[44] Civil Appeal No. J4/22/2020 decision on 24th March 2021
[45] Section 33(2) of the Courts Act 1993, (Act 459)
[46] Critique and Comment Melbourne University Law Review Annual Lecture
[47] Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 146 [4.1]
[48] Section 54(3) of the Criminal and Other Offences (Procedure) Act 1960 (Act 30)
[49] A Former Justice of the Supreme Court of Ghana and the Gambia
[50] 2nd edition at page 190
[51]A.N.E Amissah Criminal Procedure in Ghana
[52] Writ No. J1/7/2006 SC coram Akuffo JSC (as he then was) Presiding, Wood (Mrs) J.S.C. Dr. Date-Bah, J.S.C, Prof. Ocran J.S.C., Ansah J.S.C, Adinyira J.S.C.
[53] [1991] 1 GLR 155
[54] Lutterodt J rose through the ranks to become Chief Justice Georgina Woode
[55] Former Justice of the Supreme Court of Ghana
[56] Justice of the Supreme Court of Ghana, Justice of the African Court of Justice, Former Dean of the Judicial Service Training Institute
[57] Practice and Procedure in the Trial Courts and Tribunals of Ghana, 2nd Edition
[58] Page 935
[59] [1949] 1 WWR 14 at 15, BCCA