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Retrogression in Retrospectivity: A Critique of the Supreme Court case of Obeng Gyebi

Source: Justice Eric Kyei Baffuor

Retrogression in Retrospectivity: A Critique of the Supreme Court case of Obeng Gyebi
MarryRight Ghana

Abstract

The author, Justice Eric Kyei Baffuor, a Court of Appeal Judge in this article discusses the implications of the Supreme Court decision in the case of Obeng Gyebi v The Republic on the interpretation of statutes in criminal convictions in Ghana. This case involved the retrospective application of the Criminal Code (Amendment) Act, 2003, (Act 646) to a sentence that was passed before the Act was enacted, which has provoked debate about the correct approach to legal interpretation, particularly concerning the effect of repeal legislations and retrospective application of new laws.

While a court's interpretation that upholds human rights and promotes the rule of law is commendable, this article argues that it is problematic to dismiss established rules of interpretation to achieve justice. The author argues that the retrospective application of Act 646, justified by section 35(2)(e) of the Interpretation Act, 2009, Act 792, might be an overextension of the provision's intent.

The article also criticizes the reliance on foreign cases from Australia and the United States, deeming them inapplicable to the Ghanaian context and thus weakening the foundation of the Obeng Gyebi decision. It concludes with a critique of the potential burden this decision places on Ghana's legal system and predicts a "legal china syndrome," a potential domino effect of legal complications stemming from this decision.

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