The jailing of one Ama Forson for the offence of possessing Narcotic Drug contrary to section section 2(1) of PNDCL 236/90 has sparked debate in the country on the need for the courts to be merciful towards “poor” people who are caught in such cases.
BRIEF facts: jailed Ama Forson is a drinking bar operator and lives at New Bortianor, Accra. On 29/09/2015 the New Weija Police conducted a swoop at Bortianor and in the process arrested the convict in her drinking bar. A search was conducted in her premises and quantities of dried leaves no confirmed to be indian hemp were retrieved from a black ladies bag. The police also retired a wine bottle containing dried leaves now confirmed as Indian hemp soaked in liquid.
I have seen post castigating a Judge for sentencing a woman for dealing in Narcotics. Many believe the judge should have been lenient with her after all she ONLY laced marijuana in a drink for sale.
But here is the hard fact and law. The minimum sentence for possession of Narcotic Drugs under a PNDC law 236 is TEN (10) years. That is the least you get when found guilty.
What this judge did was to add one year to the minimum, making 11 years. We need to read her reason for going beyond the minimum of ten years. Then we can be well informed to either criticize her for adding one more year.
I am sorry as the law stands now, the woman could not have gotten anything below ten years. The law is not about emotions. It’s about facts and what the law says concerning those facts.
Of course there are mitigating factors under section 7 of the law: That relate to offences under sections 5 and 6 of the same act. Under these two sections, the minimum sentence is five years- that is either charged with using the drug such as smoking… or buying the substance. But under these sections, you can plead special mitigating factors:
7. Special mitigating factors. (PNDCL 236)
Where a court, in sentencing a person convicted under section 5 (1) or section 6 (1), finds that having regard to the unaggravated nature of the offence and any special circumstances relating to he offence or the offender, the imposition of the minimum sentence provided in respect of the offence is harsh, it may sentence the accused to a lesser term of imprisonment and in addition to a fine of not less than ¢200,000.
What we need to find out is whether she was charged under section 5 or 6. If that is the case then her lawyer could have pleaded Tia that is even if she had a lawyer. For now I am tempted o believe she was charged under section 3.
We can equally push for amendment of PNDC law 236 if we think ten years as minimum is too harsh for any one who deals in narcotics.
Observation: I share in the emotions that on the face of it, it appears harsh for such a woman with little means and influence. On a second look, the police could have probably charged her under sections 5 or 6 where the punishment is less and then the special mitigating factors could have kicked in.
Some have also suggested the state should have been lenient with Ms Forson just like it did with Hiplife artiste, Kwaw Kese. The rapper was charged with the offence of smoking of weed in public. Remember, the rapper was charged with usage of the banned substance under section 5 which attracts a minimum of 5 years not 10 years as in the case of possession, the charge agiasnt Ama Forson. Also under both sections 5 and 6, there is a special mitigating factor that can covert serving a jail term to simply a fine. The rapper subsequently apologized profusely for his his conduct during and after trial. He continued to show remorse in the media and embarked on a media campaign agisnt smoking of the banned substance. He walked free after serving a day’s jail sentence at the Kumasi prisons. The court ordered him to pay a fine of GHc1,200 or in default serve a three year sentence with hard labour.
This is entirely up to the Ghanaian society to judge whether the law should make such exemptions for the “poor and those who show remorse and apologize.
I still what a copy of the full judgment to find out the judges reason for not given her the minimum of ten years but added one more year on top.
Picture credit: graphiconline.