The Director of Programs at the Institute for Human Rights and Development in Africa, Edmund Amarkwei Foley, says criminal laws around the world are moving away from their punitive stance to adopt a corrective stance.
According to him, the punitive position of criminal law results from its rooting in religious law which had announced the “eye for an eye” system.
“In criminal law, for example, we would speak of punishment as also being an eye for an eye which for Christian brotherhood comes from the book of Leviticus, what jurists will call in Latin”retaliation lex‘ which is retribution.
“So we come from a system where, according to the criminal law which comes from the Ten Commandments, if you speak in the Christian context, looked at who you had offended and, therefore, you had to be punished,” he said. .
According to him, the gradual shift from retribution to correction is the result of several factors, including the separation of church and state, as well as the realization that crime is not always the result of malevolence, but rather needs and behaviors.
“Today we live in a world where the state covers us all, but this understanding of criminal law still exists in some systems. So the kind of system that Ghana has, the common law system, you always feel like you’re punishing people for what they’ve done.
“And I use the word punish in the sense of making sure they go through some discomfort, whether it’s pain or some kind of restriction to make sure they’d have the mind to not do what they did again. ‘they did,’ he said.
He continued: “But also in our contemporary times, I mean, from the 1990s we started to understand crime better and why people commit crimes. And one of the main results of this new understanding is that people commit crimes not only out of malice or bad intention, but also out of need.
“Poverty, vulnerability, pushes people to commit certain petty crimes such as stealing to eat. Yes, we certainly don’t condone theft as a society, but some people are pushed to the brink. We are beginning to have a better understanding of mental health in our world now.
“People with all sorts of mental issues end up committing crimes: suicides, schizophrenia, depression leading people to drugs and all that. So you start to realize that crime for us isn’t bad anymore , but a social phenomenon that we must tackle.
According to Edmund Foley, in addressing the issue of crime “we must now make a distinction between those who commit crimes for truly malicious purposes and those who are ‘pushed’ into crime.
“And that’s why we’re now balancing the need for retaliation with correction as well. And community sentencing approaches, or sometimes we call them alternative sentencing, provide an opportunity for people who have not committed very serious offences.