The Principle of Legality

The power of the State to punish is not limitless. The criminal law itself should be based in
Legality.Thus, the criminal law should be written to afford the citizen adequate notice of what is
expected of him so as to conform to them This principle is encapsulated in the Latin maxim
nullum crimen, nulla poena sine lege praevia lege poenali shortened to nullum crimen, nulla
poena sine lege - No crime is committed and no punishment can be imposed without the act
having been prohibited and the punishment having been prescribed by a law enacted before the
act was committed
The maxim is divided into two parts:
nullum crimen sine praevia lege
nulla poena sine praevia lege
Nullum crimen sine praevia lege
An act or omission to act is only a crime if before the act or omission was committed, there was
a law declaring the act or omission in question as a punishable offence Article 19(5) of the
Constitution, 1992
A person shall not be charged with or held guilty of a criminal offence which is founded
on an act or omission that did not at the time it took place constitute an offence
What if you engage in a transaction which is not criminal at the time but before you could
conclude the transaction, a law is passed in the interim, not directly prohibiting your further
action, but in terms that criminalizes a manner in which if you act would inculpate you and you
proceed subsequently to act in that manner to conclude the transaction should you be held
criminally liable although your initial act was no crime and your subsequent act was no crime
per se but the manner in which you chose to act is purportedly criminal?
For instance, if you sign a contract on behalf of the State and then before you execute the terms
of the contract, a law is passed in the interim not directly prohibiting the execution of the
contract, but in terms that criminalizes wilfully causing financial loss to the State should you
be held liable if you proceed to execute the contract and it causes loss to the State, if the loss was
caused wilfully?
This question arose in Tsatsu Tsikata Tsatsu signed contract of guarantee in 1991 Law on wilfully
causing financial loss to the State came into force in 1993 Tsatsu made payments in 1996
Two situations arise here:
1. if the signing of the guarantee in 1991 is the criminal act, then a case of retroactive use of
legislation arises;
2. if the payments in 1996 constituted the offence charged, there would be no question of
retroactivity;
3. is it logical or practical to separate the execution of the guarantee agreement and the
payments made in satisfaction of the guarantee obligations?

The majority held:

The genesis of the background to a criminal case may be one thing; the immediate facts and the
criminal provisions upon which the charge is legally founded may be another...although there is
no specific law which makes the execution of the guarantee agreement criminal, there is
something else in the circumstances under which the execution was done that would amount to a
criminal act on the part of a public official, such as a criminally reckless decision to make
payments in the face of credible evidence that the moneys would never be repaid to the guarantor
corporation, or that the transaction in question was entered into recklessly and unprofessionally
The nullum crimen sine praevia lege principle was well honoured in Hassan, where the
appellant was found in the possession of Indian Hemp, and was convicted by the Circuit Court
on a charge of possessing Indian Hemp, contrary to the Pharmacy and Drugs Act, 1961 (Act 64).
The particulars of offence read: Fatayi Hassan on the 20th day of January, 1961, in Accra in the
Eastern Region was in possession of 800 grammes of Indian Hemp However, Act 64 came into
force on 13 June 1961. In allowing the appeal against the conviction of the accused, the Supreme
Court observed that on 20 January 1961 (the date captured on the charge sheet), there was no
offence like possession of Indian Hemp.
Nulla poena sine praevia lege
An act or omission to act is only a crime if a specific penalty has been previously prescribed
for that act or omission In Ghana, this principle is carried further on two
legs:
the offence must be written in a law and defined
a penalty must be prescribed for the offence
Article 19(11) of the Constitution, 1992
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.
The rationale is that it is unfair to punish someone unless he has a chance to know the law and to
conform to it. In line with this principle, English Acts of Attainder (punishing persons for acts
not illegal prior to the Act) fell into disuse in the 18th Century
This rule has been written into international law UNDHR (1948)
In effect, Article 19(11) outlaws unwritten criminal law thus common law crimes and
customary law crimes that have not been reduced into statute have been outlawed Contrast
Article 19(5) & (11) with sec 9(2) of PNDCL 78. The question arises under Article 19(11) as to
whether the law criminalizing a particular conduct should incorporate a definition of the
operative words to put it beyond doubt as to what is being criminalized
This question arose in Tsatsu Tsikata Tsikata contended that the offence of willfully causing
financial loss was unconstitutional since there was no definition in the statute as to what was
meant by willful.
In rejecting this contention, the majority held that:
Article 19(11) requires a written law of crimes, i.e. the creation of crimes in a written form but
not a written law definition of all words used in a criminal provision. Not only would such a task
prove futile or impracticable; it would also ignore the fact that no statute exists in isolation from
the general criminal law of any legal systeminternal definitions of words in a statute is often

done but this cannot be done, and is not expected to be done, for each word or term that is
deployed in creating a crime
But the pressing question is: is it reasonable to insist that a word or phrase upon which or
around which a crime revolves should be expressly defined if its meaning therein is vague?
Related to the principle of legality is the concept of Overbreadth and Vagueness
All persons are entitled to be informed as to what the law commands or forbids. That is, the law
should tell us with reasonable clarity what it expects of us that is, law should be reasonably
precise, predictable and certain. That is to say, a statute is vague and overbroad where it either
forbids or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application - See Tsatsu Tsikata
That is to say, the statute must provide an ascertainable standard of guilt. The statute creating the
offence must use language which will convey to the average mind information as to the act or
fact which is intended to be criminalized Justice Douglas remarked in the US case of
Papachristou v. City of Jacksonville that failing to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by statute is unconstitutional. The principle of
legality is not limited to the requirement that a statute must provide an ascertainable standard of
guilt it has also been extended to the provision of minimum guidelines to govern law
enforcement.
So as Justice OConnor said in the US case of Kolender, Chief of Police of San Diego v. Lawson,
where the legislature fails to provide such minimal guidelines, a criminal statute may permit a
standardless sweep that allows policemen, prosecutors, and juries to pursue their personal
predilections
The Rule against Double Jeopardy
No man should be punished twice for the same offence Once a person has been tried for an
offence, he cannot be tried again for the same offence, whether his trial ended in an acquittal or a
conviction
Autre fois convict
Autre fois acquit
The rationale is that the criminal law seeks to prosecute offenders not to persecute them so
once a person has been tried and sentenced, he cannot be punished again for the same offence
since to do so would amount to undue oppression or persecution - see Article 19(7)
Some guilty persons may slip through to freedom but it is better than being put in double
jeopardy of the same offence
The rule applies where, in his trial, the accused was in peril in respect of the same set of facts
for instance, under a charge of murder, the accused would be in peril of being convicted for
manslaughter so if he is acquitted, a fresh charge cannot be brought for manslaughter
against him
On the other hand, where a person causes harm to another, and the victim is still alive, the
accused is not in jeopardy of being charged for murder at his trial for causing harm if the
victim eventually dies, the accused may then be charged for murder - see sec 115 of Act 30 The

accused must show that the first trial ended in a final verdict of GUILTY or NOT GUILTY. A
discontinuance, hang jury, or the entry of a nolle prosequi is not a final verdict