UNIVERSITY OF EDUCATION, WINNEBA
CRIMINAL SUSPECTS AND RIGHT TO BAIL IN GHANA: HUMAN RIGHTS
ISSUES AND DIMENSIONS
JOHN KWAME QUAYSON
JULY, 2012
UNIVERSITY OF EDUCATION, WINNEBA
CRIMINAL SUSPECTS AND RIGHT TO BAIL IN GHANA: HUMAN RIGHTS
ISSUES AND DIMENSIONS
JOHN KWAME QUAYSON
A Thesis in the Department of Social Studies, Faculty of Social Science, submitted
to the School of Graduate Studies, University of Education, Winneba in partial
fulfillment of the requirements for award of the Master of Philosophy (Human
Rights) Degree.
JULY, 2012
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DECLARATION
I, JOHN KWAME QUAYSON, declare that this Thesis, with the exception of quotations
and references contained in published works which have all been identified and duly
acknowledged, is entirely my own original work, and it has not been submitted, either in
part or whole, for another degree elsewhere.
SIGNATURE
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DATE:
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SUPERVISOR’S DECLARATION
I hereby declare that the preparation and presentation of this work was supervised in
accordance with the guidelines for supervision of Thesis as laid down by the University
of Education, Winneba.
NAME OF SUPERVISOR: DR. KUMI ANSAH-KOI
SIGNATURE
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DATE:
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DEDICATION
To my mother, Esi Quayson, and to the memory of my father, Albert Kojo Quayson.
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ACKNOWLEDGEMENTS
I am particularly grateful to Dr. Kumi Ansah-Koi for his kind supervision and
constructive comments. I wish to also acknowledge the Lecturers at the Social Studies
Department. I am deeply grateful for your encouragement, helpful suggestions and
upholding me through this work. To all those who gave pieces of advice or help in any
form but whose names are not mentioned, I say a sincere thank you.
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TABLE OF CONTENTS
CONTENT
PAGE
DECLARATION ................................................................................................................................................ ..I
DEDICATION ................................................................................................................................................... ..II
ACKNOWLEDGEMENTS ............................................................................................................................... .III
ABSTRACT ....................................................................................................................................................... VII
ACRONYMS ................................................................................................................................................... .VIII
CHAPTER ONE: INTRODUCTION .................................................................................................................1
1.1 BACKGROUND TO THE STUDY ............................................................................................................. .1
1.2 PROBLEM
STATEMENT…………………………………………………………………...7
1.3 PURPOSE OF THE STUDY ......................................................................................................................... 7
1.4 RESEARCH QUESTIONS ........................................................................................................................... 8
1.5 SIGNIFICANCE OF THE STUDY ............................................................................................................... 9
1.6 SCOPE OF THE STUDY/DELIMITATION .............................................................................................. 10
1.7 DEFINITION OF TERMS .......................................................................................................................... 10
1.8 ORGANISATION OF THE STUDY .......................................................................................................... 12
CHAPTER TWO: LITERATURE
REVIEW……………………………………………………………………12
2.1.1 INTRODUCTION .................................................................................................................................... 12
2.1.2 THEORITICAL FRAMEWORK: POSITIVISM ..................................................................................... 16
2.2 CIRCUMSTANCES SURROUNDING CRIMINAL SUSPECTS AND RIGHT TO BAIL ...................... 21
2.2.1 MODELS OF BAIL
SYSTEM…………………………………………………………………………..23
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2.2.2 THE CASE OF GHANA .......................................................................................................................... 24
2.3.1 WHAT IS BAIL? ...................................................................................................................................... 37
2.3.2 WHEN IS BAIL GRANTED IN GHANA? ............................................................................................. 37
2.3.3 FORFEITURE OF BAIL BOND (Sec. 104 of Act 30) ............................................................................ 43
2.3.4 BAIL PENDING
APPEAL…………………………………………………………………………….45
2.3.5 SECURITY FOR KEEPING THE PEACE OR OF BEING OF GOOD BEHAVIOUR: ........................ 47
2.3.6 WHAT’S THE PROCEDURE? ................................................................................................................ 47
2.3.7 ARREST BY POLICE .............................................................................................................................. 50
2.3.8 PENDING ENQUIRY DETENTION NOT MORE THAN 15 DAYS .................................................... 52
2.3.9 LENGTH OF IMPRISONMENT ............................................................................................................. 52
2.3.10 RELEASE OF PERSON IF NO LONGER POSING THE THREAT ................................................... 53
2.3.11 CANCELLATION OF BOND BY HIGH COURT ............................................................................... 53
2.3.12 SURETY CAN APPLY TO HAVE HIS SURETY CANCELLED ....................................................... 53
2.4 SOME HUMAN RIGHTS ISSUES REGARDING CRIMINAL SUSPECTS
AND BAIL IN GHANA
……………………………………………………………………………………..54
2.4.1 FREEDOM OF LIBERTY AND PRESUMPTION OF INNOCENCE UNTIL PROVEN
GUILTY ....54
2.4.2 IN THE INTEREST OF JUSTICE ........................................................................................................... 61
2.4.3 DIGNITY OF A PERSON........................................................................................................................ 61
2.4.4 LIFE OF A PERSON ................................................................................................................................ 62
2.4.5 FAIR TRIAL ............................................................................................................................................ 63
CHAPTER THREE:
METHODOLOGY…………………………………………………………………………70
3.1 INTRODUCTION ....................................................................................................................................... 70
3.2 AREA OF STUDY ...................................................................................................................................... 71
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3.3 RESEARCH DESIGN ................................................................................................................................. 71
3.4 POPULATION ............................................................................................................................................ 72
3.5 REVIEW OF OFFICIAL RECORDS .......................................................................................................... 73
3.6 SAMPLE AND SAMPLING PROCEDURE .............................................................................................. 74
3.7 DATA COLLECTION TECHNIQUES ...................................................................................................... 74
3.8 DATA ANALYSIS ...................................................................................................................................... 74
CHAPTER FOUR: RESULTS AND
FINDINGS………………………………………………………………...76
4.1 INTRODUCTION ....................................................................................................................................... 76
4.2 REVIEW OF TEN (10) SELECTED COURTCASES AS REPORTED IN GHANA ................................ 76
CHAPTER FIVE:
DISCUSSION .................................................................................................................... 87
CHAPTER SIX:
SUMMARY, CONCLUSION AND RECOMMENDATIONS ......................................... 93
6.1 INTRODUCTION ....................................................................................................................................... 93
6.2 SUMMARY OF KEY FINDINGS AND CONCLUSION .......................................................................... 93
6.3 RECOMMENDATIONS ............................................................................................................................. 97
6.4 LIMITATIONS TO THE STUDY ............................................................................................................ 102
6.5 SUGGESTIONS FOR FURTHER STUDIES ........................................................................................... 103
REFERENCES ................................................................................................................................................. 104
APPENDICES ...................................................................................................................................................... 106
APPENDIX 1........................................................................................................................................................ 106
REPORTED COURT CASES USED.............................................................................................................. 106
(i) The Ten (10) Cases Selected From The Ghana Law Reports For The Case Study. .................................................. 106
(ii) The Foreign Cases Cited In Support Of the Case Study. ......................................................................................... 106
APENDIX 2 .......................................................................................................................................................... 107
HUMAN RIGHTS PROVISIONS USED ....................................................................................................... 107
(i) International Human Rights Provisions ................................................................................................................... 107
(ii) National Legal Documents Cited ............................................................................................................................ 107
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ABSTRACT
Human rights today have received an important credence in democracies all over the
world. Human rights are also a key to sustainable development, peace and security as
embraced globally. One right recognized in human rights jurisprudence as pivotal in the
promotion of a criminal justice system that satisfies international human rights standards
is fair trial, which includes the right to bail. It is generally perceived that some criminal
suspects continue to experience human rights violations including unlawful arrest, instant
assaults, physical brutalities and the denial of their right to bail raising issues especially
during military regimes. The permissive degree of limitation on the liberty of the
individual to be determined by the Legislature and the Judiciary involves balancing of
choices and how these choices impact on the society. The Ghanaian court has since
independence made the effort to promote and protect the rights of criminal suspects as
regards their right to bail, and in lieu of the fact that there have been various military and
constitutional regimes over the period. The purpose of this study was basically to bring to
the fore the legal provisions and conditions that guarantee the right of bail to people
suspected of crime; two, to find out whether or not the court has played a role in ensuring
that they enjoy these rights, and finally to make recommendations in addition to
contributing to available literature in the area of the subject. It is concluded from these
official reported cases that the court has indeed played a major role in promoting and
protecting the rights available to criminal suspects in the area of bail in Ghana.
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ACRONYMS
CHRAJ
–
Commission on Human Rights and Administrative Justice
BNI
–
Bureau of National Investigation
HRC
–
Human Rights Commission
UN
–
United Nations
UDHR
–
Universal Declaration of Human Rights
ICCPR
–
International Convention on Civil and Political Rights
ICESCR
–
International Covenant on Economic and Cultural Rights
ECOSOC
–
Economic and Social Council
UCHR
–
United Nations Commission on Human Rights
NGO
-
Non-Governmental Organization
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CHAPTER ONE
INTRODUCTION
1.1 BACKGROUND TO THE STUDY
The modern concept of human rights is rooted in the experiences of ‘legal lawlessness’
when crimes were committed with the authorization of the law, and when some human
beings were denied their status as such. An answer to these experiences was the
emergence of the international human rights law, Peichowiak (1999). The main aim of
this branch of international law is to prevent broad violations of fundamental rights from
recurring in the future. Appreciating the worth of every human being, the international
community decided to eliminate elements that could destroy the individual person, but
also to create the conditions that would enable him or her to develop and flourish.
Accordingly, the Preambles to the International Bill of Rights provide that the
“foundation of freedom, justice and peace in the world” is the “inherent dignity and of the
equal and inalienable rights of all members of the human family”.
First of all, fundamental rights and freedoms are universal. This means that each and
every human being has these rights by the mere fact of being born human. Universality is
rooted in the inherent dignity of human beings and in the fact that human rights are
inherent. By inherent, it is meant that human rights exist independently of the will of
anyone. They are neither obtained, nor granted through any human action Peichowiak
(1999). Secondly, these rights are also inalienable, in that they cannot be taken away by
anyone, including the state, or that nobody can renounce them by her/himself. Pursuant to
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this approach, legal norms do not establish human rights but only recognize them and
determine the ways of their realization. Thirdly, human rights are indivisible, in that none
of the rights that is considered to be fundamental human right is more important than any
of the others and, more specifically, that they are inter-related. The indivisibility of
human rights was further confirmed during the World Conference on Human Rights in
1993 in Vienna.
The recognition of human rights, which derives from the recognition of dignity, is the
basis of justice and therefore the basis of every legal system, which claims to be just. The
State and the law exist for the individual living in a society. Despite the fact that the
human rights law was created, among other things, to set a limit and a system of check
and balance the powers of the state against individual persons, the State increasingly
becomes regarded as a guardian of human rights.
The Universal Declaration of Human Rights (UDHR) proclaims a common standard of
achievement for all peoples. The two covenants that followed on Civil and Political
Rights and, Economic, Social and Cultural Rights further made these human rights
standards legally binding. Most countries also recognize most of these rights and
incorporate them in their constitution, national legislation and laws.
Today people everywhere are increasingly demanding and gaining respect for their rights
and freedoms. The performance of governments, and even their legitimacy, is being
measured against the standards of the International Bill of Rights. No government can
afford to ignore these standards, and all governments are bound to feel their impact at
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home and in external relations (Alfredsson & Eide, 1999) . With this regards, art.8 of
UDHR provides that everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by the constitution
or by law. For this to concretize, adequate mechanisms should be established for human
rights to be implemented in national courts. Human rights jurisprudence is
interdisciplinary and its advocacy is a universal phenomenon.
States’ Obligations To Respect, Protect And Fulfill Human Rights
According to art.2 (1) of the ICCPR each State Party undertakes to respect and to ensure
that all individuals within its territory and subject to its jurisdiction the rights recognized
in the covenant, without discrimination of any kind. Furthermore, States parties have
under the ICESCR the duty to respect, protect and fulfill the incorporated rights. This
description of state duty propagated originally by Henry Shue has received wide support
and is frequently used in the analysis of human rights, in general, and socio-economic
rights, in particular.
At the primary level, States must refrain from directly infringing human rights. This
corresponds more closely to the traditional conservative view, which argues that the
obligation of the State is to abstain from arbitrary intervention on the freedom and
autonomy of the individual. This level provides a shield for citizens from unjust
interferences by political authorities. Both categories of rights have this negative
dimension in a sense that they require the State to respect the autonomy of the individual
in the exercise of his/her rights. At a secondary level, the State is required to protect or
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ensure citizens’ rights from unjust interferences from others. Here the State is required to
take positive steps towards the effective enjoyment of rights. This includes the obligation
to enact legislation and create the framework to prevent violations of rights and enable
citizens enjoy their protected rights without the interference from others. Thus
governments have to enact a set of minimum standards for the working conditions in
order to prevent third parties from violating human rights.
At a tertiary level, the State has the obligation to fulfill by positively intervening and
assisting, especially those who are in a vulnerable position to make better use of their
rights. For instance, to fulfill the right to housing, the State should at this level regulate
the economy and land market, subsidize housing, monitor rent levels and other housing
costs, and provide public housing. The State should also consider society’s unmet
housing needs when allocating budget. At this level, the duty involves active measures by
the political authority necessary for guaranteeing for each individual to access the
entitlements of his/her rights, which cannot be secured through exclusively personal
efforts. On the other hand, the right to vote requires the State to provide for voting
facilities such as election stations, booths, safety and security for fair and free election, as
well as to provide for mobile voting stations for people who are sick, in prison.
This delineation of obligations makes it clear that both categories of rights require both
negative and positive action from the State depending on the circumstances of the case.
The argument that alleges that there is a conceptual difference between civil and political
rights and socio-economic rights is thus tenable in as far as we are referring to the duty of
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the State toward socio-economic rights at the tertiary level as opposed to the duty toward
civil and political rights at the primary level. The provisions of economic, social and
cultural rights are also formulated in the form of obligations of result rather than
obligations of conduct in order to respond to different situations. The obligation of
conduct requires action reasonably calculated to realize the enjoyment of a particular
right. For instance, in the case of the right to housing, the obligation of conduct will
require the State to design and implement a sensitive plan of action to reduce the number
of homeless people in the country within a certain period of time. The obligation of
result, on the other hand, requires the State to achieve certain targets to satisfy a detailed
substantive standard. In the above example, this obligation will thus require the reduction
of homelessness within the anticipated period of time.
However, though the ways of their implementation may differ, both types of obligations
are legally binding on States. Moreover, many argue that, for instance, the right to food,
to housing, to health care and adequate standard of living is too broad and general to
enforce but contend that the right to life, to fair trial, freedom of expression and freedom
from torture is absolute and directly enforceable. This seems dubious because it is the
same socio-economic conditions cited above that make the protection of civil and
political rights difficult and at times impossible. For instance, when people die of hunger
or disaster, the right of life of these people is violated because the State and the
international community failed to protect and fulfill their right to food and to the highest
attainable standard of health.
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The argument that contends that socio-economic rights are programmatic and can only be
realized progressively while civil and political right can immediately be realized is
disputable as the full realization of all fundamental rights is invariably progressive. For
instance, the full realization of the right to freedom from torture is a progressive
undertaking as it requires the training of the political authority, the establishment of
evaluating and monitoring system and a change in the whole attitude towards accused
people which will not happen overnight. In addition, the fact that the full realization of a
right is progressive does not mean that there is nothing that can be done immediately.
In 2010 human rights watch report, Ghana was among the countries praised for
contributing to the promotion and protection of human rights in the world. This research
strives to look into the human rights associated with suspects and their rights to bail in
criminal matters in Ghana. For this purpose, it will assess whether the Ghanaian legal
system incorporates laws that enable the redress of these human rights issues and
violations and as to whether these laws, if any, are being implemented using decided
court cases.
The scope of the Research being general and broad, it was not possible to exhaustively
identify and elaborate on each and every decided court case that are inconsistent with
constitutional and international human rights principles and propose recommendations.
Thus, only illustrative examples were used to indicate areas of the law that require indepth analysis and revision pursuant to international and national human rights standards.
For this, the chapter four of the thesis uses court cases as case studies where relevant
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issues related to human rights of criminal suspects and bail were raised. Finally
recommendations and ways forward are suggested to ensure the protection, respect and
promotion of human rights in Ghana.
1.2 PROBLEM STATEMENT
It is a fact that democratic states and governments automatically embrace human rights as
enshrined in their constitutions, hence the call for democracy by Ghanaians to have their
fundamental Human Rights promoted and protected. Ghanaians were tired of the various
military regimes coupled with their arbitrariness in ruling their leaders and were therefore
ready to put behind them those negative acts that took place. However, much peace
loving Ghanaians after entering into constitutional governance still continue to
experience systematic human rights violations of which the right to bail of suspected
criminals is of no exception. This as a matter of fact, poses a great threat to the survival
of our infant democracy and therefore has become a problem worth researching; the
research therefore seeks to come out with the salient human rights abuses and concerns
that have come to associate with criminal suspects and their right to bail in Ghana.
1.3 PURPOSE OF THE STUDY
The enjoyment of the fundamental rights of every individual globally thrives well on
democracy and good governance. Ghana has practiced democracy since the first
Republican government in 1960, though saddled with few military regimes in-between
the periods. However, the fact that there has been no other coup d’état since the coming
into force of the 1992 constitution is a major plus for Ghana and as regards the protection
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and promotion of human rights as enjoined by the UN to do so . This democratic qualities
of Ghana has placed it above it peers in the sub-region, thus being tagged as an oasis of
peace in the sub-region where its neighbours still grapple with civil wars. To maintain
and improve on our current democratic and human rights credentials, there is the need to
also take stock of our past human rights instances that have impeded our democratic
governance, and use it as a base of strengthening our democracy in order to avoid future
recurrences of such violations. Hence, the purpose of the study is as follows; to
1. Find out the circumstances that surround criminal suspects and their right to bail in
Ghana.
2. Find out whether or not the courts have assisted in any way in the promotion and
protection of criminal suspects and their right to bail in Ghana since the attainment of
independence.
3.
Make suggestions and recommendations as to how the promotion and protection
of human rights issues could be strengthened in Ghana.
1.4 RESEARCH QUESTIONS
1. What are the circumstances surrounding criminal suspects and their right to bail in
Ghana?
2. What are some of the human right issues, as pertains to criminal suspects and their
right to bail in Ghana?
3. Has the court ensured that criminal suspects and their right to bail are protected and
promoted in Ghana?
4. Are there alternative suggestions which can be proposed to ensure that the right of
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criminal suspects as to bail are effectively protected and promoted in Ghana?
1.5 SIGNIFICANCE OF THE STUDY
The significance of the study can be viewed along three strands: research, practice and
policy. Concerning the research significance, this study goes beyond common research
on human rights and human rights instruments in Ghana by identifying some important
human rights issues and dimensions regarding criminal suspects and their right to bail in
Ghana. It will also serve as an educational document for future research studies.
Concerning significance to practice, the study will provide guidelines to other
stakeholders on how effectively and efficiently we can protect and equally promote the
rights of suspects as regards to bail in criminal cases in the country.
Finally, and as to its significance to policy, the study will provide feedback on policies
regarding the general implementation of Human Rights at the National Level in Ghana
which is critical to the UN, INGOs and the rest of the international community. It will
also benefit Ghana and other donors who have interest in the protection, promotion and
enforcement of human rights at all levels.
1.6 SCOPE OF THE STUDY/DELIMITATION
There have been human rights violations and accompanied abuses in Ghana after
independence and there are still prevailing ones today. But the scope of the study was
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rather to mirror those that had to do with criminal suspects and their right to bail as
directed by international human rights provisions and further guaranteed by the
constitution of Ghana. This was to allow the researcher concentrate more on the topic
under study.
1.7 DEFINITION OF TERMS
A right is “that to which a person has a just or lawful claim”, or an interest which will be
recognized and protected by a rule of law, respect for which is a legal duty, violation to
which is a legal wrong” in this context a right can be taken away by a law ones it has
been abused by the holder. However human rights are those fundamental, inalienable
rights a person has simply because he or she is a human being? They are “those basic
standards without which people cannot live in dignity”.
Criminal Suspect
In the criminal parlance of criminal justice, a suspect is a known person suspected of
committing crime.
Criminal Perpetrator
This refers to the actual robber, assailant, counterfeiter, etc or the person who actually
committed the crime.
Bail
To bail a person means to procure his release from lawful or legal custody by giving an
undertaking that this person shall be available at a time and place indicated to stand trial.
This promise is usually backed by a certain amount of money that will have to be paid if
the accused doesn’t do what he/she is supposed to, like not appearing in the police station
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when he has to and so on. Bail is also given by the police or the court when a bail bond is
made. A bond is a promise, which has legal backing. A bail bond may be a Personal
Bond or a Surety Bond.
Generally, one has the right to be released on bail depending on whether the offence that
one has been arrested for is listed as bailable or non-bailable in the Constitution or the
Criminal Procedure Code. With the exception of murder, treason, robbery, hijacking,
piracy, escape from lawful custody, rape, defilement shall be granted in almost all cases.
Bail shall also not be granted in the matter of extradition.
Coup d’état
Also known as coup and translated as, ‘strike against the state’, is the sudden, illegal
deposition of a government, usually by a small group of the existing state establishment
(typically the military) to depose the extant government and replace it with another body,
civil or military.
Ex parte application
This means a legal proceeding brought by one person in the absence of and without
representation or notification of other parties; usually refers to an improper unilateral
contact with a court, arbitrator or represented party without notice to the other party or
counsel for that party.
Nolle prosequi
This is a statement made by the Attorney-General stating that the government is no
longer interested in a particular court case. Sec 54 of Act 30.
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1.8 ORGANISATION OF THE STUDY
The study comprises six chapters; Chapter one deals with background to the study, the
problem, purpose of study and research questions. Others are the significance of the
study, limitations, scope/delimitations of the study and the definition of terms. Chapter
Two focuses on the review of related literature while Chapter Three touches on the
methodology of the study, the research design, the population sample and sampling
procedures, data collection instruments and data collection procedures and finally data
analysis. In Chapter Four is results/ findings and Chapter five bothers on the discussion
of the findings as presented. Finally, the summary of findings, conclusions,
recommendations and suggestions for future research form the concluding Chapter six of
the study.
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CHAPTER TWO
LITERATURE REVIEW
2.1.1 INTRODUCTION
This chapter seeks to provide the relevant human rights and legal provisions that give
backing to the subject under discussion .It must be emphasized, however, that not much
study have been done in this area, thus making it a difficult area for one to pick it as a
topic in Ghana.
According to Amoo (2008), topics such as bail and as relates to criminal suspects more
often than not conjure up emotions of security concerns about the “bad guy that must
kept off the streets”. Most often, we tend to forget about the cardinal principle of the
presumption of innocence in criminal justice. Contemporary international policies and
measures taken by some powers to combat international terrorism testify to the dangers
of actual pre-trial punishment. The root cause of this, it is submitted, is the concentration
of excessive powers over security matters in the Executive. Refusal of right to bail
assumes a position that our criminal justice systems are perfect and that individuals
detained for allegedly committing serious offences will be charged and tried in
accordance with the precepts of the due process of the law. Yet empirical evidence
proves the contrary; there are cases in certain jurisdictions of torture at detention camps
and the inability of the State to bring detained persons for trial within reasonable time.
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Security concerns traditionally come under the jurisdiction of both the Legislature and
Executive but the determination of bail application forms part of the due process of the
law which belongs to the domain of the Judiciary. The question as to which organ of state
has the final say in bail applications is a question of choices. Bail jurisprudence involves
the balancing of the values relating to the rights of the individual and the security of the
state; it involves the balancing of the dictates of positivism and rationality and how these
choices”, Amoo (2008).
“The basic purpose of bail, from the society’s point of view, has always been and still is
to ensure the accused’s reappearance for trial. But pre-trial release serves other purpose
as well, purposes recognized over the last decade as often dispositive of the fairness of
the entire criminal proceedings. Pretrial release allows a man accused of crime to keep
the fabric of his life intact, to maintain employment and family ties in the event he is
acquitted or given a suspended sentence or probation. It spares the family the hardship
and indignity of welfare and enforced separation. It permits the accused to take an active
part in planning his defense with his counsel, locating witnesses, proving his capability of
staying free in the community without getting into trouble.”
In criminal justice jurisprudence, the right to bail has often times been discussed in the
context of the presumption of innocence and the right to liberty.
As stated by Mahomed J in S v Acheson:
An accused person cannot be kept in detention pending his
trial as a form of anticipatory punishment. The presumption
of the law is that he is innocent until his guilt has been
established in Court. The Court will therefore ordinarily
grant bail to an accused person unless this is likely to
prejudice the ends of justice.
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But it is submitted that the better approach to the jurisprudence of bail is a holistic one;
an approach that must look at bail as part of the rights of the accused to the due process
of the law and therefore forms part of the human rights discourse. Due process of the law
in human rights jurisprudence under both international and municipal laws is an all
embracing concept and in the context of bail, as indicated earlier, includes the right to
liberty, fair trial and the presumption of innocence.
As stated by Hiemstra CJ in the case of Smith v Attorney-General, Bophuthatswana,
“Every man is entitled to „due process of the law. This principle is so ancient that it can
be traced back to the Magna Carta”.
Bail may be defined as security to procure the release of a person from legal custody
together with an undertaking that he/she shall appear at the time and place designated and
submit him/herself to the jurisdiction and judgment of the court. Bail application
proceedings are normally pre-trial proceedings and it is one of the reasons why
discussion of the right to bail as a human rights issue should be in the general context of
due process of the law rather than the limited confines of the presumption of innocence.
Furthermore, the issue of guilt or criminal liability is not determined in the course of a
bail application (this statement is made subject to the proviso that prima facie evidence of
the guilt of the accused adduced at this stage may determine the refusal to grant bail). The
presumption in criminal trial proceedings is a factor that determines and allocates the
burden of proof, but put in the context of the due process of the law, the cumulative
impact of the presumption of innocence and the right to freedom before conviction,
15
permits the unhampered preparation of defense and serves to prevent the infliction of
punishment prior to conviction.
There are no specific international human rights standards on the right to bail; there are
only generic provisions on the right to liberty and due process of the law which are
incorporated in the constitutions, which include the 48 hour rule. The detailed provisions
relating to the procedure and the guidelines (both mandatory and discretionary) to be
followed by the Courts in the judicial process fall under the Legislature, within the ambit
of state sovereignty.
Legislative intervention almost invariably has taken the form of criminal procedure
legislation the contents of which are motivated by concerns of security, the right of the
accused person or the arrestee and due process of the law. But, it is submitted that in
jurisdictions where automatic right to bail is denied on grounds of the nature of the
offence, the legislative intervention is motivated more by security concerns than the
protection of the rights of the individual.
2.1.2 THEORITICAL FRAMEWORK: POSITIVISM
Many voices can be heard in the dispute about the consequences of either to give bail to
criminal suspects or not. The available empirical evidence on this issue remains mixed,
with inconclusive results, and plausible counter‐claims to each argument. The popular
debate consists largely of theoretical speculation about the possible consequences of the
widely‐observed structural and economic changes in the arrest and detention of criminal
16
suspects, rather than from careful empirical examination of how public opinion actually
is changing, in the light of survey evidence. The theoretical framework here is based on
the positivists’ views. In wise, laws are made to represent the truth in real life situations.
For instance, there should be laws stating that a criminal suspect must be detained or
given bail. Thus, it is just not enough for society or the enforcement agencies to assume
that someone has committed a crime; and whether or not the person has any rights to bail.
Positivism is the belief that knowledge can be organized in clear and generally accepted
ways. A positivist tends to believe there is "one best way" to do things and to answer
questions like those found in science or politics. Positivism is a philosophical and
ontological (what exists) position in which there can be something which is 'positive',
'truthful' or 'known'. It often espouses that there is an external reality which can be
objectively studied. An example of a positivist statement might be, 'trees have leaves'; or
better still, ‘criminal suspects have rights to bail’.
Most of the discussion originates with "logical positivism." That was a branch of
analytical philosophy in the first part of the 20th century. Where it begins and ends is an
open question, but the term is still used to mean anyone devoted to a modernist sense that
answers exist to questions and that we can find best ways of doing things. Positivism is
the belief that knowledge can be organized in clear and generally accepted ways. A
positivist tends to believe there is "one best way" to do things and to answer questions
like those found in science or politics.
17
Positivism is a philosophy of science based on the view that in the social as well as
natural sciences, data derived from sensory experience, and logical and mathematical
treatments of such data, are together the exclusive source of all authoritative knowledge.
Obtaining and verifying data that can be received from the senses is known as empirical
evidence. This view holds that society operates according to laws like the physical world.
Introspective and intuitional attempts to gain knowledge are rejected. Though the
positivist approach has been a recurrent theme in the history of Western thought, the
concept was developed in the modern sense in the early 19th century by the philosopher
and founding sociologist, Auguste Comte. Comte argued that society operates according
to its own laws, much as the physical world operates according to gravity and other laws
of nature. Marxism and predictive dialectics is a highly positivist system of theory.
However Marxism rejects positivism and views it as subjective idealism, because it limits
itself only to facts and does not examine the underlying causes of things.
In the original Comtean usage, the term "positivism" roughly meant the use of scientific
methods to uncover the laws according to which both physical and human events occur,
while "sociology" was the overarching science that would synthesize all such knowledge
for the betterment of society. "Positivism is a way of understanding based on science";
people don't rely on the faith of God but instead of the science behind humanity.
Invariably, in contemporary social science, strong accounts of positivism have long since
fallen out of favour. Practitioners of positivism today acknowledge in far greater detail
observer bias and structural limitations. Modern positivists generally eschew
metaphysical concerns in favor of methodological debates concerning clarity,
replicability, reliability and validity. This positivism is generally equated with
18
"quantitative research" and thus carries no explicit theoretical or philosophical
commitments. In jurisprudence, "legal positivism" essentially refers to the rejection of
natural law, thus its common meaning with philosophical positivism is somewhat
attenuated and in recent generations generally emphasizes the authority of human
political structures as opposed to a "scientific" view of law.
19
Focus
-
Assumptions
-
-
Major
concepts/terms
used
Contributing
scholars
(include
dates of works)
-
Methodologies
specific
framework
Methods
-
Critique
Research questions
to
-
Theoretical Frame work: Positivism
Unambiguous and accurate knowledge of the world
Explanation/prediction and control
Finding Truth (and proving it through empirical means)
Investigator and investigated object are assumed to be
independent entities.
Scientists will keep the distinction between objective
empirically verifiable knowledge and subjective,
unverifiable knowledge very much in mind
Knowledge is factual ; Truth and meaning reside in
objects
No statement is meaningful unless it is capable of being
verified
Scientific knowledge is both accurate & certain (as
opposed to opinions and feelings)
Replicable findings are 'true'
Closely linked to empirical science
Logical empiricism
Objectivist, Mathematised world
Primarily interested in synthetic statements
Verification principle: no statement is meaningful unless
it is verified
Auguste Comte (1848) natural scientific methods applied
to social sciences
Henri de Saint-Simon (1817-1824)
Francis Bacon (1561-1626)
Vienna Circle (1920s-30s) applied mathematical
principles to philosophy - Wittgenstein
Survey research
Chiefly qualitative methods
-
Case study
Document analysis
Positivists are claimed to make excessive assumptions
and claims to the validity and accuracy of scientific
knowledge
- How can we say what is true with any certitude?
- Doesn't take into account how people make
meaning/culturally influenced interpretations
What are the circumstances surrounding criminal suspects and
their right to bail in Ghana? What are some of the human right
issues, as pertains to criminal suspects and their right to bail in
Ghana? Has the court ensured that criminal suspects and their
right to bail are protected and promoted in Ghana?
20
2.2 CIRCUMSTANCES SURROUNDING CRIMINAL SUSPECTS AND RIGHT TO
BAIL
According to Mensah-Bonsu (2008), the conditions under which a suspect would be
granted bail in Ghana are set out in the 1992 Constitution of Ghana and supported by the
Criminal Procedure
It is provided for in Art.9 (3) of ICCPR that, it shall not be the general rule that persons
awaiting trial shall be detained in custody, and release may be subject to guarantees to
appear for trial, at any other stage of the judicial proceedings, and, should occasion arise,
for execution of the judgment.
In Article 14 (3) and (4) of the 1992 Constitution and Section 96(7) of the Criminal
Procedure Act, 1960 Act 30 of Ghana, it is provided that it is only the High Court and not
any of the lower Courts that can admit an accused person to bail in non-bailable offences
if the accused person is not tried within a reasonable time. Enforcement of fundamental
human rights and freedoms is enforced by the High Courts. Moreover, the Court of
Appeal and the Supreme Court could grant bail on appeal in respect of non bailable
offences as provided for in Article 33(3) of the Constitution. Art.(33) of the Constitution
also states, that all persons have an inalienable right to petition the court to order their
physical release where the arresting police officer or the law enforcer fails to bring them
before a court within the prescribed time and to provide reasons for their arrest. Where
21
the interest of justice requires, the court may order the arrested person to remain in
custody or, when requested, remand him for a time strictly required to carry out the
necessary investigation. In determining the additional time necessary for investigation,
the court shall ensure that the responsible law enforcement authorities carry out the
investigation respecting the arrested person’s right to a speedy trial. Persons arrested have
the right to be released on bail also. In exceptional circumstances prescribed by law, the
court may deny bail or demand adequate guarantee for the conditional release of the
arrested person.
Art. 19(1)(c), also provides that during proceedings, accused persons have the right to be
presumed innocent until proved guilty according to law.
Section 96 of Act 30 (Amended by Sec 7 of Act 633)
Sec 96 (1): Subject to this section, a court may grant bail to a person who appears or is
brought before it on a process or after being arrested without warrant, and who
(a) Is prepared at any time or at any stage of the proceedings or after conviction
pending an appeal to give bail, and ….
(b) Enters into a bond in the prescribed manner with or without sureties, conditioned
for that person’s appearance before that court or any other court at the time and
place mentioned in the bond.
Code, Act 30, 1963. This however does not exclude the other constitutions and decrees
that were in force before it. Haynes (1993) also implored the court system to do their
best towards sustaining the democratic dispensation of Ghana.
22
2.2.1 MODELS OF BAIL SYSTEM
There are three models / approaches to the right to bail as a human right balancing the
right of the individual to liberty and the security of the community.
The first model is based on a policy and a constitutional position that makes the
Legislature the repository of the determination of the right to bail and leaves the Judiciary
with the implementation of broad legislative directives. The legislative directive
invariably includes mandatory refusal of bail in certain offences and the Judiciary is left
with the discretion to determine the grant or refusal of bail in other cases with the primary
objectives of promoting the due process of law and securing the presence of the accused
or arrestee before the jurisdiction and judgment of the court. The second model or
approach is premised on the constitutional position that grants the sole determination of
the right to bail to the Judiciary, subject to a minimum degree of Forum on Public Policy
legislative intervention. This approach does not prescribe for bailable and non-bailable
offences. The accused or arrestee has the prima facie constitutional right to apply for bail,
irrespective of the seriousness of the alleged offence. The first model/approach is adopted
by countries such as Zambia, Ghana, India and certain states in the United States and the
second model/approach by countries such as Namibia. The third model/approach may be
described as an amalgam or hybrid of the first two models/approaches. The power over
determination of matters relating to bail is generally vested in the Judiciary. There is no
legislative mandatory refusal of bail; the law does not draw a distinction between bailable
and nonbailable offences. However, there is a legislative intervention in the form of
23
legislative guidelines that the Courts must follow in the exercise of their discretion to
grant or refuse bail in serious or scheduled offences. This is the South African model.
2.2.2 THE CASE OF GHANA
As stated earlier, bail jurisprudence aims at achieving a balance between personal liberty
and social security or interests of the society. Consequently, the first model/approach is
premised on three tenets; security concerns emanating from state sovereignty, protection
of the rights of the individual, and the promotion of due process of the law. Under this
model/approach legislative intervention is exercised by means of the promulgation of
legislation dealing with procedural and substantive principles relating to bail. The
justification for legislative intervention has been based on security concerns and therefore
the Legislature has been recognized as the legitimate organ of state to be vested with the
jurisdiction to make broad pronouncements on matters relating to bail. In the interest of
state security and securing the presence of the accused before the jurisdiction of the
courts, the Legislature has thought it prudent to draw a distinction between bailable and
non-bailable offences. The former consist of less serious non scheduled offences over
which the Courts have unfettered discretion to make pronouncements on whether or not
bail must be granted. This notwithstanding, the Courts exercise this discretion guided by
certain imperatives and values developed through case law.
The latter consists of serious or scheduled offences in which the Courts are mandated to
refuse bail. This approach is adopted by Ghana and Zambia. But in order to temper the
injustices that this approach may cause to the accused person, under both Ghanaian and
24
Zambian constitutional provisions supported by relevant case law, the Courts have the
power to grant bail to the accused if s/he is not tried within a reasonable time in cases of
statutory non-bailable offences. But this approach tends to confuse release on bail and the
accused’s right to be brought to trial within a reasonable time. The fact is that release on
bail is not a substitute for an accused’s right to be brought to trial within a reasonable
period. In all such cases the fundamental issue is the constitutionality of these legislative
interventions in terms of their consistency and compliance with international human
rights standards. Under this head we shall discuss the Zambian and Ghanaian
models/approaches.
This model/approach traces its legitimacy to the fact that the power to determine the
general policy, principles and rules of law governing the grant or refusal of bail is vested
in the Legislature. But in human rights bail jurisprudence the protection of the liberty of
the accused potentially stands compromised if this power is vested in the Legislature.
This is a human rights issue which is traditionally recognized as falling under the
jurisdiction of the Courts and therefore the approach that will be regarded as consistent
with the precepts of international norms and standards will be that of automatic legal
right to appeal the determination of which will rest within the discretion of the Courts.
This approach will adequately cater for all the concerns mentioned earlier that determine
the content of bail jurisprudence. In the case of Smith v Attorney General, Bophutswana,
Hemstra stated as follows:
25
“In America there is a lively controversy between those who would award the Court a
constitutional policymaking function and those who want to limit its constitutional
interpretation. Before a Court has established itself as an unchallenged third force in a
country it would be wiser to limit itself to interpretation, which nevertheless is
imaginative and designed to keep open the horizon of individual liberty. There will be an
ongoing debate in the courts about definitions and priorities, all the time aiming, not at
freedom from law, but at freedom through the law.
The universal method of safeguarding individual liberty is to entrust it to an independent
judiciary operating in public and compelled to give reasons. Every man is entitled to due
“process of the law”. This principle is so ancient that it can be traced back to the Magna
Carta (1225). In s61A the judicial process is eliminated. The order refusing bail to a
suspect is still made in open court by a judicial officer, but it is a pantomime of a court.
The magistrate is not only compelled to accept the Attorney-General‟s ex parte
statements of fact, not supported by any evidence, but the statute also tells him what
order to give, namely a refusal of bail. A statute which eliminates the judicial process in
matters of personal liberty is plainly unconstitutional. I do not refer to the internal
security laws. Other considerations apply there, brought about by s 12
(3) (g) of the Declaration of Fundamental Rights.
Due process of law does not necessarily imply court proceedings in every context, but in
regard to bail it certainly does because bail is part of trial proceedings. The expression
appears nowhere in the Bill of Rights, as it does in the Fifth and the Fourteenth
Amendments of the American Constitution, but the wording of para (3) (b) quoted above
26
– “shall be entitled to trial within a reasonable time or to release pending trial-clearly
relates to a judicial process. It means trial within a reasonable time, or, if not tried within
a reasonable time, then release pending trial subject to suitable guarantees imposed by a
court of law.”
This encapsulates the basic tenets of bail jurisprudence, namely, firstly, that bail
application falls within the judicial process and therefore within the jurisdiction of the
Courts; secondly that the accused has the right to trial within a reasonable time failure to
which s/he is entitled to release. This latter position, however, falls short of automatic
right to apply for bail. As stated earlier, release on bail is not a substitute for an accused‟s
right to be brought to trial within a reasonable period. Release on bail on account of
failure to prosecute the case within a reasonable time is not a proactive provision as it
only seeks to address the issue after the fact. The automatic right to apply for bail is not
specifically provided for by the Constitution (in the case of Ghana or Zambia). This is
subject to the interpretation of the relevant provisions of the Constitution and the Courts
in both Ghana and Zambia in their interpretations of these provisions have taken a
holistic approach by relying on legislation that denies the accused the right to apply for
bail in offences statutorily classified as non-bailable. This mandatory denial of bail
coupled with the fact that the constitutional right to release addresses the issue after the
fact, means that the right to liberty of the accused stands 1984 (1) SA196 tremendously
compromised since the accused is subjected to punitive conditions before trial.
27
In order to remove these uncertainties, it is submitted that the jurisdiction to determine
bail be granted to the Judiciary and that appropriate provisions incorporated in the
Constitutions. It is submitted therefore that the correct jurisprudential approach to bail
applications is that the
Courts of law should adjudicate these matters and that as a matter of principle there
should be no legislative or executive attempts to curtail or oust the jurisdiction of the
Courts10.
The Ghanaian model/approach was exhaustively discussed by Prof. Ocran JSC in the
case of
Kevin Dinsdale Gorman v The Republic of Ghana and because of the relevance and
importance of the case, I have found it necessary to refer to the relevant parts of the case
in their entirety. The Court exhaustively stated the bail jurisprudence of Ghana as
follows:
“In this manner, we expect to clarify and enunciate the general policy, principles and
rules of law governing the grant or refusal of bail in our legal system, spelling out the
interface between and among relevant rules of criminal procedure, case law, and the1992
Constitution.
Undergirding our principles for decision on applications for bail is the effective
enforcement of our criminal law guided by due process considerations, which constitute
the procedural aspects of our commitment to liberty of the individual.
28
A true system of justice must indeed reflect both aspects of criminal jurisprudence. If not,
one of two consequences will follow: either the law enforcement agencies of the state
ride roughshod over the rights of the accused: or criminals would have had a field day in
the system as they roam the streets in full liberty and with contempt for the efficacy of
our criminal enactments. A good starting point of analysis is the Ghana Constitution of
1992; for, in the final analysis, all our laws and procedures, whether predating or
postdating this document, and whether embodied in statutes or case law, must be
consistent with the Constitution. Counsel for the 1st Accused / Appellant is right in
asserting that the Criminal Procedure Code of 1960, as amended, continues to be valid
only in so far as it is consistent with the Constitution of 1992.
The 1992 Constitution contains unequivocal protection for accused persons in the pretrial and trial stages of the criminal process. Article 19(2)(c ) enunciates the age-old
common law presumption of innocence of the accused. It has been argued by the Counsel
for some of the Appellants in this case that this provision implies a further presumption in
favour of the grant of bail; and that the denial of bail for their clients thus flies in the face
of Article 19(2)(c). In this connection, Counsel referred to The Republic v. Court of
Appeal: Ex Parte Attorney General ---better known as the Benneh Case. It is however
important to point out that Article 19(2)( c) of the Constitution is meant to be enjoyed
equally by the accused held in pre-trial detention as well as the accused granted bail. For,
as Coleridge said in R. v. Scaife17
“I conceive that the principle on which the parties are committed to prison by
magistrate‟s previous trial is for the purpose of ensuring the certainty of their appearing
29
to take the trial….it is not a question as to the guilt or innocence of the person….”.Since
the presumption holds for both the Accused in custody and his counterpart on bail, there
is no self-contained criterion for sifting between the two categories of accused persons. In
that sense, the presumption of innocence is necessary but not a sufficient ground for the
grant of bail. This is not surprising. The issue of bail primarily addresses freedom, or lack
thereof, of the accused “to walk in the streets” after being charged with an offence; it is
principally associated with the pre-trial phase, although it has obvious consequences for
the liberty of the accused during the trial as well. By contrast, the presumption of
innocence primarily addresses the due processes issue of burden of proof or of persuasion
once the trial commences. Thus the strong derivation of a presumption of the grant of bail
from a presumption of innocence appears too sanguine.
While one might attempt to derive a presumption of grant of bail from the constitutional
presumption of innocence, as Wiredu J.S.C. (as he then was) sought to do in the Benneh
case as above, a stronger basis for a presumption of grant of bail under our Constitution
might be found in Article 14. Indeed, Art 14(4) embodies a direct duty to grant bail in a
specific situation, i.e. when a person is not tried within a reasonable time. But this
provision does not exhaust the grounds upon which bail is granted. We must also
consider the cumulative effect of Art. 14(1) and 14(3), which work on the premise that
every person is generally entitled to his liberty. Basing ourselves on Art. 14(1), 14(3), and
to some extent on Art. 19(2)(c ), of the 1992 Constitution, we hold that there is a
derivative constitutional presumption of grant of bail in the areas falling outside the
courts‟ direct duty to grant bail under Art 14(4). However, this by itself is not dispositive
30
of the legal problem of bails, for it seems clear that this presumption is rebuttable. Any
other reading of the Constitution would lead to the untenable conclusion that every
accused person has an automatic right to bail under our Constitution. This presumption is,
for example, rebutted in cases where a statute specifically disallows bail based on the
nature of the offence, such as the situations outlined in s.96(7) of the Criminal Procedure
Code.
Outside Article 14(4) of the Constitution and s. 96(7) of the Criminal Procedure Code
(Act30), the presumption of the grant of bail retains judicial discretion in the matter of
bails. However, the exercise of this discretion remains fettered by other relevant
provisions of our law. This is where the other provisions of s. 96(1) of the Code fall into
place. They serve the purpose of clarifying the manner in which this discretion may be
exercised, including the factors that should be taken into account in granting or rejecting
a plea for bail. Because of 17 [1841] 5. J. P. 406, at p.406: our rejection of the notion that
the constitutional presumption of innocence calls for an automatic enjoyment of bail, we
hold further that there is no prima facie inconsistency between the general provision of
S.96 of the Criminal Procedure Code and the Constitution of 1992. Thus Section 96 of
the Code provides for judicial discretion in the matter of bail, but should always be read
in light of the constitutional duty to grant bail. This section embodies both a positive right
and a negative duty for the courts. In the exercise of their judicial discretion as
constitutionally circumscribed, courts are accorded under s.96(1) the general right to
grant bail as long as the accused person is prepared to give bail or enter into a bond. The
section impliedly grants the right to refuse bail as well. It should be noted that this
31
provision does not list any specific grounds for the grant of bail; and one would surmise
that any reasonable ground, such as the
deterioration of the health of the accused while in detention, would suffice as a proper
ground for the grant of bail. But it is made subject to other provisions of the section. The
second aspect, embodied in s.96 (5), states a general duty to refuse bail in certain
situations, including the likelihood that the defendant may not appear to stand trial. This
is followed by S.96 (6), which lists the factors the courts should take into account in
assessing the likelihood of the defendant‟s
non-appearance for trial. These Code provisions dovetail neatly into Articles 14 and 19 of
the 1992 Constitution.
Drawing on our general analysis of the law above, we summarize our holdings as
follows:
The constitutional presumption of innocence embedded in Art. 19(2)(c) of the 1992
Constitution does not import an automatic right to bail. The constitutional duty of the
court under Art.14(4) of the Constitution, to grant bail to the accused if he is not tried
within a reasonable time, is applicable irrespective of the nature of the accusation or the
severity of the punishment upon conviction. In the cases falling outside the direct duty to
grant bail under 14(4), there is a constitutional presumption of grant of bail drawn from
the spirit of the language of Art 14(1) & (3), and 19(2)(c ), in further protection of
persons charged with offences in situations which do not mandate the grant of bail.
32
The said constitutional presumption of the grant of bail is rebuttable; and it is in fact
rebutted by a statutory provision that expressly disallows bail, such as the circumstances
outlined in s.96(7) of the Criminal Procedure Code. Outside the strictures of s. 96(7) of
the Code and Article 14(4) of the Constitution, the presumption of the grant of bail is still
extant, and is exercised under judicial discretion which is itself fettered by other
provisions of s.96. There is no prima facie inconsistency between the relevant provisions
of the Code and the 1992 Constitution.
Considerations of the nature of an accusation and the severity of punishment upon
conviction, as part of the decision not to grant bail under s.96(5)& (6), are constitutional ;
and that the gravity of an offence may be viewed as an aid in understanding and
categorizing the nature of an accusation. The Court of Appeal in arriving at its judgment
of 3rd March, 2004 to rescind bail in this matter, at variance with the judgment with the
judgment in the Benneh case to grant bail, did not violate the constitutional provision on
stare decisis; and The Supreme Court is not bound by the specific result of the Benneh
case since the factual contexts are distinguishable.”
However, Aboagye (2012), in his feature article on what we must know about bail, says
“the police and other security agencies constantly violate these provisions of the 1992
Constitution. It is a fact in Ghana that suspects are scarcely taken to court within 48 hours
after arrest. The granting of a police enquiry bail is done at the discretion of the police
subject to the Criminal Procedure Code. A police enquiry bail is granted to an accused
person within 48 hours after arrest to enable the police conduct further investigations into
a case for prosecution or otherwise. A suspect must be granted a police enquiry bail and
33
subsequently made to produce a surety before his or her release from police custody and
not vice-versa. Some police investigators request suspects to produce sureties before they
are granted bail which is not right. Furthermore, bail whether granted by the court or the
police is free. The practice by some police officers to demand money from suspects
before granting them bail is not right”.
Again, he went on to say that, “In recent times, the arrest of DSP Gifty MawueyegaTehoda by the BNI for alleged crimes committed in the “cocaine -turned -baking soda”
saga reiterate the earlier point made that the right to bail by suspects is constantly abused
by the police and other security agencies. The BNI failed to follow the right procedure.
Knowing the law and knowing they would keep her for that long, the right thing for them
to have done was to arraign her before court within 48 hours after arrest for her to be
formally charged and remanded. It must be noted that the BNI refused to release or
arraign her before court until her lawyer filed a habeas corpus at the Human Rights Court
after twelve days in detention. A bail application was subsequently made at the court by
her lawyer and she was granted bail with two sureties in a sum of GH ¢50, 000.
In a democratic country like ours, the police and other security agencies especially the
BNI must respect the rights of suspects to bail and all other rights of suspects whilst in
their custody. The law must be allowed to work and the 1992 Constitution must be
allowed to reign supreme”, Aboagye (2012). These views as put forward by Aboagye go
to support what has already been guaranteed by both international human rights
instruments and the local laws of Ghana.
34
Also and until the last decades of the twentieth century, judges or magistrates determined
whether a defendant would be confined while awaiting trial with little statutory guidance.
Moreover, this all-important liberty decision to release or confine the accused person
through the device of cash bail was most often made by the lowest ranking local judicial
official—sometimes a misdemeanor court judge, but often a quasi-judicial officer,
magistrate, commissioner, or justice not trained in law. When guidance for that decision
was provided, state and federal law concerned itself more with how (procedure) to decide
bail than with why, and did not refer to a community protection goal. The language of the
Eighth Amendment of the U.S. Constitution—"excessive bail shall not be required"—
offered no guidance as to the purpose of bail.
In the 1960s, early proponents of bail reform argued that the only constitutionally
acceptable purpose of bail was to ensure a defendant's appearance in court (Goldkamp,
1979). Reformers were critical of the then-existing bad system that they believed
operated sub rosa to confine defendants perceived to be dangerous, an unconstitutional
agenda in their view.
This is a unique section because the people have not been charged with any offence but
still executing a bond to be of good behaviour. The law also says that if you execute a
bond to keep the peace or to be of good behavior, it amounts to a conviction yet he has
not been charged with any offence. Thus the evidence upon which the he must make the
order must be very substantial. This is because, if they execute the bond it amounts to a
conviction. The execution of the bond can be for six months or for any period which the
magistrates deems fit.
35
Unfettered judicial discretion in bail proceedings results in outcomes described by critics
as random and arbitrary. The likelihood of detention has varied among judges in the same
court and across courts, and even by a single judge over time. Studies of bail decisions
have found at least as much disparity—unequal treatment of similar individuals—as was
found in studies of sentencing and parole that sparked major reforms of those justice
decisions (Goldkamp, 1979).
Bail is the temporary release of an accused person awaiting trial. The appearance of the
accused at trial is usually guaranteed by a sum of money that the court holds as security.
Many factors go into deciding whether to allow for release on bail, and it should be
considered on a case-by-case basis.
Obstacles to applying for bail include the lack of bail advocacy skills; a lawyer's not
receiving a case until the trial stage, at which point it may be too late; and the expectation
that a bail application will be denied, which dissuades lawyers from what they see as
wasted time and effort. The time required to prepare and process criminal cases often
culminates in a delay between the time of first appearance at the court and finalising the
young person’s case. While some delays may be considered a necessary feature of fair
and equitable justice, the youth justice system has come under criticism for the slow pace
at which cases are finalised (Kilkelly, 2005). It is clear that the length of time currently
involved in processing the cases of young people serves to dilute the impact and
seriousness of the court process and the consequences arising from their offending
behaviour. Furthermore, and most seriously, it places young people at greater risk of
detention on remand as a result of re-offending or breach of bail.
36
In one study, Freeman (2008), raised another important point to the effect that
compliance with the conditions of bail may be challenging for young people by virtue of
the demands and limitations placed on them. He further stated that a dearth of official
statistical data about the numbers of young people on bail and the extent to which they
comply with the conditions of bail makes it difficult to quantify the remand situation in
Ireland. Nonetheless, empirical data report bail non-compliance as a factor in the risk of
detention on remand for young people
2.3.1 WHAT IS BAIL?
According to Wikipedia (2012), bail is the temporary release of an accused person
awaiting trial. The appearance of the accused at trial is usually guaranteed by a sum of
money that the court holds as security. Many factors go into deciding whether to allow
for release on bail, and it should be considered on a case-by-case basis. A
To bail a person therefore means to procure his release from lawful or legal custody by
giving an undertaking that this person shall be available at a time and place indicated to
stand trial. And with the exception of murder, treason, robbery, hijacking, piracy, escape
from lawful custody, rape, defilement shall be granted in almost all cases. Bail shall also
not be granted in the matter of extradition.
2.3.2 WHEN IS BAIL GRANTED IN GHANA?

It is granted during investigations;
37

It is also to be granted during the trial;
It can also be granted after conviction (but that is on exceptional circumstances). Another
situation where a person is required to be of good behaviour is that, he will be requested
to keep the peace to be of good behaviour.
There are certain circumstances where the court will grant bail on the charge of murder.
Thus, when the facts of the case as given by the prosecution do not constitute murder, the
court will grant bail. The statutes say that bail shall not be given on the charge of murder
but there are situations when bail is granted even though the charge is murder. For
instance, if a person is charged with murder for hitting somebody on the head with a book
and the accused is charged with murder. This will be weird, so the court will still go
ahead in granting bail. Another instance that had to do with a charge of treason, still had
the accused Hon. Ken Adjepong being granted bail since the court said, the facts did not
support the offence meted out to him.
In all other cases the courts may grant bail, however even though the courts have
discretion to grant bail in all other cases, but there are other factors that the courts must
take into consideration when the courts will grant bail. On all cases the court must be
assured that the accused who is being released will come back to stand trial.
Notwithstanding the fact that bail shall not be granted on murder, rape, etc charges article
14 (3) of the 1992 constitution requires that a person who has been arrested, restricted,
detained shall be brought to the court within 48 after such detention or arrest. Therefore
the police have no authority to hold anyone beyond 48 hrs.
38
What remains as a gap and therefore needs to be filled as a matter of grave concern is the
fact that most of the suspects are often kept in custody or detention beyond the legally
stipulated time period. The most serious is when they are kept in custody or detention to
exceed the period, and often with the excuse that the court which hitherto has the power
to grant bail does not sit on weekends, and therefore innocent persons are occasionally
kept for close to 96 hours (i.e addition of two more days) before their release on the
following Monday. But the question still remains
whether or not the constitution is
violated if a person is detained over 48 hours if that time falls over the weekend when the
courts are not in session?
In considering whether or not to grant bail, the court may consider whether the accused
person may:
a) interfere with the witnesses
b) interfere with the evidence
c) hamper the police in any way in their investigations
d) whether the accused person may commit a further offence when released on bail.
e) consider whether the accused person is alleged to have committed the offence at a
time when he was on bail in another case.
In all these instances the court will refuse to grant bail even though the offence is a
second degree felony or even a misdemeanor.
Other Circumstances under which the court will grant bail include the following;
39
Foremost, the court will grant bail if satisfied that the accused will come back to stand
trial. In deciding whether the accused will stand trial or not the statutes have set out
certain matters for the courts to consider and Sec. 96 (6) of Act 30 provides such
instances. In considering whether the defendant may not appear to stand trial the court
may take into account the following considerations.
a) The nature of the accusation: if the accused is charged with a minor offence such
as careless driving.
b) The nature of the evidence in support of the accusation; is the evidence
overwhelming or was the accused caught in the act so that the conviction will be
sustained? Where the evidence is overwhelming it is likely that the accused will
not show up to stand the trial.
c) The severity of the punishment which conviction will entail; if it is an offence that
carries a fine it is likely that the accused person will not abscond, but if it’s an
offence that carries a minimum sentence such as in a defilement case which
carries a minimum of 7 years, or a severe punishment such as a 10years
imprisonment it is likely the accused will abscond.
d) Whether the defendant having been released on bail on any previous occasion has
willfully failed to comply with the conditions of any recognizance entered into by
him on that occasion. (the court will look at previous conduct of the accused if it
comes out that he has jumped bail before then the accused will not granted bail
e) Whether or not the defendant has a fixed place of abode in Ghana and is gainfully
employed. (if even on a charge of stealing if no fixed place of abode or gainfully
employed the accused may be granted bail)
40
f) Whether the sureties are independent of good character and of sufficient means.
(the court may need to find out whether the surety is independent and whether the
money is his own money).
This is the situation so that even when a suspect is on second degree bail and bail
shall be granted, the court will refuse if some of the above are not fulfilled by the
accused. But in every case, however, the court will have to address itself to the
issues before it first. The most important is that the accused should come back and
stand trial, and in doing this the court might have to consider all the above in
determining that.
The accused person is always the principal party and the person who bails him out is the
surety and the two of them will sign the bail bond. The surety guarantees that the accused
person will come back to stand trial on the date and the time indicated in the bail bond.
The bail bond will indicate the time and place where the surety should bring the principal
party, failing which the surety will pay a certain amount .The bail bond is always fixed in
relation to the offence which has been committed. The amount of the bond is always
fixed in amount. The law says the bail bond should not be excessive. For example, if a
person is charged with 2 million cedis, the court must also not fix the bond at 100 million
cedis. The surety will undertake to pay the amount in the event that the principal party
fails to show up at the court as stated in the bail bond.
The court will also ask the surety to justify that he will be able to pay the amount stated
in the bond. Thus, we have:
41

surety in the amount and

surety to justify
The court in setting the amount of the bail must have regard to the matter before it. Sec.
96 (3) of Act 30 provides that the amount and conditions of bail shall be fixed with due
regard to the circumstances of the case and shall not be excessive or harsh. In other
words, the court should not set conditions that make it impossible for the conditions to be
met to grant the bail
S. 96 (4) of Act 30 provides that the court shall not withhold or withdraw bail merely as a
punishment. Sometimes also, the court will grant bail and ask the accused to report to the
police on every Monday or once a month. The case of Daswani v COP [1964] GLR 54
also held that a bond was a contract between the parties involved.
It shows that the bail bond is a contract and the surety undertakes to produce the accused
the principal party on the time and date indicated on the bail bond. It means that if you
have to bring the accused on a particular date and you fail to do that then the bond is
forfeited and the surety has to pay the amount on the bail bond.
Therefore when a bail bond is executed and it states that the principal party should be
brought on the date stated on the bail bond it means exactly what it says and this is on the
authority of Daswani. In that case the contract did not state when the party should be
brought to the court and the court held that the bond had been discharged.
42
That is, if they are not able to produce the principal party or he fails to appear, the bail
bond will be estreated. In other words the police will take steps to collect the amount
stated on the bond.
2.3.3 FORFEITURE OF BAIL BOND (Sec. 104 of Act 30)
When the bail bond is forfeited or principal party (PP) fails to appear the bail bond would
be estreated (that is, the amount will be collected). The bail bond is forfeited if one was
not able to produce the principal party on the date on which they were asked to bring him
to the court. (Daswani v COP). And if person had been sick, they could go ahead in
showing to the court the medical report or advice. Also, if they fail to show up on the
date, the court would ask them why they should not be made to pay the amount.
The
position is that, either they pay the full amount, part of the amount or any reasonable
amount the court may ask them to pay. This is according to Sec. 104 of Act 30. Again,

If they don’t have money to pay the amount involved the law says their movable
property will be sold first. A distress warrant will be brought against the surety to
pay.

If no movable then immovable property will be sold instead.
But if they had neither, then they would be committed to prison for four months. And if
unable to produce the man, the surety will have to serve his sentence even if the accused
was later found. This is how the court decided in the case of Daswani v COP.
Further, if a person is granted bail and he commits another offence, he may not be
granted bail again. The courts may also after sureties have executed the bond, say that
they are not suitable. And where the court finds out that the sureties are not suitable, the
43
court may issue a warrant for the principal party to appear before it and upon appearance
will ask him to execute a fresh bond with new surety or sureties. If he fails to do that, the
court may commit him to a prison for a term not exceeding the maximum term for which
he would have been committed to prison had he failed to produce a surety in the first
instance.
In other words the court always has the right to determine whether the sureties are
independent or sufficient if not the court has power to ask Principal Party to execute a
fresh bond with new sureties.
Under Sec. 101 of Act 30, a surety for an accused person may at any time apply to the
court to be released from the bond. And when such an application is made, the court shall
issue a warrant for the arrest of the principal party to be brought before the court. On his
appearance to the court, the surety will be discharged and the Principal Party will be
asked to produce a new surety. Failure to do that, the Principal Party will be committed to
prison. In other words you cannot go to court and ask to be discharged if you have to
bring the Principal Party to court and ask the court that you no longer want to be a surety.
The principal party will be asked to find other sureties to be remanded to court.
Where principal party is a minor, the court shall require that the bond be executed by a
parent, guardian or other fit person with or without sureties conditioned that the child do
what is required under the courts order.
When bail is forfeited, the bond has to be estreated and the police or whoever granted the
bail will now take steps to have the amount stated to be paid.
44
If the bond is forfeited before the death of the surety, his estate will be attached for the
payment of the amount. He is only released if he dies before the bond was forfeited.
Where the surety dies or becomes insolvent the court will ask the principal party to
provide new sureties, that is where the surety dies during proceedings.
2.3.4 BAIL PENDING APPEAL
In the question of bail pending appeal, the rule is that the applicant will have to apply to
the court for bail pending appeal. Bail pending appeal is an exceptional circumstance and
the court requires that the appeal is likely to succeed that is why he is granted bail. The
applicant must go before the court and show the court that his appeal will be successful.
In the case of Fynn v R [1971] 2 GLR 433 the High Court presided by Taylor J. set out
the conditions for granting bail. The conditions are that:
a) You must demonstrate that the appeal is likely to succeed. You must show that
there is an error on the face of the record that the appeal is likely to succeed. This
could arise in a situation where the court has convicted the accused person on the
evidence of an accomplice without warning itself of the dangers of convicting on
the evidence of an accomplice. It is the law that before the court convicts on the
evidence of the accomplice, first, the court must warn itself of the dangers of
convicting on the evidence of an accomplice or there must be corroboration so in
the absence of this there is a likelihood that the appeal may succeed.
45
b) Where the sentence is so short and the records of proceedings are not available
and it will take some time before the records are available and that the accused
person will have spent a substantial time then the court will grant bail.
The law does not allow ex parte application for bail. It is only when the Regional
Tribunal convicts a party and the chairman is not a party to the conviction; in that
situation the court itself can grant bail.
Bail is always on notice application and the AG will be informed and he will indicate as
to whether he agrees or disagrees. Bail is never granted ex parte in tribunals.
The appellant will then have to come to court and state his case.
Other authorities seem to suggest that if the appellant must confer with his counsel during
his appeal then he may be granted bail. In other words if the case involved is very
technical and counsel needs the assistance of his client, bail can also be granted on
appeal.
When he is granted bail pending appeal, the procedure is the same. The appellant is the
Principal Party and the court will grant him bail with surety or sureties. The surety
undertakes to make the appellant available for the hearing at the appeal for the time and
place to be indicated failing which he will have to pay the amount indicated on the bail
bond.
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2.3.5 SECURITY FOR KEEPING THE PEACE OR OF BEING OF GOOD
BEHAVIOUR:
Sec. 22 of Act 30
The police have power under this section if they have information that some people are
planning to cause a breach of the peace to bring them before the court for the court to ask
them to keep the peace or to be of good behaviour.
Section 22 of Act 30 provides that:
Whenever a magistrate is informed on oath (affidavit) that there is within the jurisdiction
of the court a person likely to commit a breach of the peace or to disturb the peace or to
do any wrongful act that may probably occasion a breach of the peace or to disturb the
public peace, the Magistrate may require that person to execute a bond with or without
sureties for keeping the peace such period as the magistrate may deem fit.
2.3.6 WHAT’S THE PROCEDURE?
First a complaint must be made to the Magistrate and it must be on oath and it must be
within the jurisdiction of the district court that a person is likely to commit a breach of
the peace or disturb the public peace. The magistrate has power to require that person to
be brought before him to execute a bond with or without sureties for keeping the peace
for such period as the magistrate may deem fit.
47
Section 23 further provides that: Whenever a District Magistrate is informed on oath that
any person is taking precautions to conceal his presence within the local limits of the
Magistrate's jurisdiction, and that there is reason to believe that the person is taking such
precautions with a view to committing any offence, the Magistrate may, require the
person to show cause why he should not be ordered to execute a bond, with sureties, for
his good behaviour for such period as the Magistrate thinks fit.
This gives the police the power to apprehend anyone within the jurisdiction if they have
evidence that they are planning to commit a breach or planning to commit an offence.
This power is been used in situations where a festival is going to be held in a community
and there are factions which are planning to disturb the ceremony. The police can only
bring people before the court if they have real evidence.
The court must be satisfied that those people were really planning to commit a breach of
the peace or they were planning to commit an offence?
Where the magistrate is informed on oath that are persons within the jurisdiction:
a) who are planning to breach or disturb the public peace, the court will ask them to
show cause why they should not execute the bond to keep the peace.
b) planning to commit an offence, the court will ask them to execute the bond to
show cause why they should not execute a bond to be of good behaviour.
When these complaints are made before the Magistrate, he makes an order that the people
concerned should be brought before him. In making the order that he should:
48
a) indicate the substance of the information which was made before him
b) He would have to indicate whether the complaint was in respect of a breach of the
peace (execute the bond to keep the peace) or the people were planning to commit
an offence in which case they would execute a bond to be of good behaviour.
c) He would indicate the amount of the bond to be executed depending on the
information he has received. Depending on the information he has received, he
sets the amount of the bail bond, If the allegation is that they were planning to
rob, kill etc then the bail bond will be high.
d) The Magistrate will indicate whether the bail will have to be in place and for how
long. The period of time will be dependent on the matter that has been brought
before the court. In the case of festival the court will determine for how long the
festival will be in place and…
e) The court will indicate the number of sureties and this also will be dependent on
the matter that was brought before the court. If is a serious matter it will be two
sureties and it is a very serious matter the court will ask the sureties should justify
the bail bond.
The court will make an order that they will execute a bond to be of good behaviour.
When the M makes this order, he will order that the person shall be arrested and brought
before the court. It is important to note that during these proceedings the persons are not
accused persons and they have not been charged with any offence, it is only been alleged
by the police that they are planning to commit an offence or breach the peace in the form
of an affidavit.
49
When the Magistrate has drawn up the order he will then request that the persons to be
brought before him to show cause why they should not executed the bond.
When he has drawn up the order, they will be brought before the court to show cause why
the bond should not be executed.
2.3.7 ARREST BY POLICE
Sometimes the police may arrest these persons and bring them before the court together
with the complaint. They have two methods:
a) They will come before the court in the form of an affidavit for the court to issue
the order to show cause why they should not executed the bond to be of good
behaviour or keep the peace.
b) They may arrest these persons and bring them to the court together with the
complaint. When these persons are brought before the magistrate, the magistrate
shall proceed to enquire into the matter whether the information given is correct
or false.
The courts will then go into the matter and the police will be called upon to give evidence
that these persons were planning to commit an offence or planning to cause a breach of
the peace. They will have to go into the witness box and give evidence that these people
were planning to commit an offence or breach the peace. They will give the evidence in
chief and the accused are permitted to have counsel. The persons alleged to want to
50
breach of the peace or commit an offence will also be allowed to give evidence and will
also be cross examined.
The court shall enquire into the matter and as practicable as it can, be the proceedings
shall be similar to that of a case. The police will thus have to adduce evidence to show
that they were planning to cause a breach of the peace or were planning to commit an
offence and the evidence must be sufficient for the court to make that order. At the end
of the day the magistrate will have to make a decision.
The law says if the Magistrate considers that immediate measures are necessary for the
prevention of a breach of the peace or disturbance of the public peace or the commission
of any offence or for the public safety, may direct the person in respect of whom the
order under section 24 has been made to execute a bond, with or without sureties, for
keeping the peace or maintaining good behaviour until the conclusion of the enquiry, and
may detain him in custody until the bond is executed or, in default of execution, until the
enquiry is concluded.
When the court makes this order, if the persons execute the bond then they will be
released on bail. If they refuse to execute the bond, the court shall detain them until the
enquiry is completed. This section is to preempt the commission of an offence if it is for
the maintenance of peace and order in the community.
If it is a minor: the minor must have the court executed by his sureties. If the court finds
that the evidence is not sufficient to cause of breach of the peace of that they were
planning to commit an offence the court will discharge them.
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2.3.8 PENDING ENQUIRY DETENTION NOT MORE THAN 15 DAYS
Pending the determination of the case, the law says the Magistrate may detain them if
they refuse to execute a bond to keep the peace or to be of good behaviour; however that
detention should not be more than fifteen days. In other words, the law is saying that the
Magistrate must be able to complete the enquiry within 15 days and after 15 days the
Magistrate must make a decision. If he finds that the allegation has not been proved, he
has to discharge them. On the other hand, if he finds the allegation has been proved, he
may order that they make an order to keep the peace or to be of good behaviour.
If the Magistrate is not satisfied, he must discharge them. If he asks them to execute a
bond they can file an appeal against it to the High Court. If the evidence adduced him
does not show conclusively that they were planning to commit a breach of the peace, they
must be discharged, otherwise be satisfied that these people were planning to commit a
breach of the peace.
2.3.9 LENGTH OF IMPRISONMENT
Where the bond is to keep the peace and the person refuses to execute the bond he could
be detained for a term of imprisonment not exceeding six months. Where the period of
the bond exceeds one year and the persons refuse to execute the bond the Magistrate has
power to issue a warrant to detain the persons in prisons and then send the order to the
high court or Circuit Court. The High Court or Circuit Court after examining the matter
may make such orders as he deems fit. Failure to execute the bond to keep the peace
52
attracts a term of imprisonment not exceeding six months and it shall be without hard
labour, whereas imprisonment for failure to execute the bond to be of good behaviour;
may be with or without hard labour.
2.3.10 RELEASE OF PERSON IF NO LONGER POSING THE THREAT
Where the magistrate is of the opinion that the threat posed by the person is no longer
there and the person imprisoned does not pose any threat, he shall make a report the High
Court and the High Court shall order the release of the person, that is, after the bond has
been executed.
2.3.11 CANCELLATION OF BOND BY HIGH COURT
The High Court may at any time cancel any bond for keeping peace or be of good
behavior, but must give reasons which must be reported. The High Court has supervisory
jurisdiction over the District Court.
2.3.12 SURETY CAN APPLY TO HAVE HIS SURETY CANCELLED
Any surety can apply to have his surety cancelled. When this is done the principal party
shall be summoned to appear before the court to provide fresh security. So the bail bond
which is executed under Section 22 is the same as that in Section 96 of Act 30, 1960.
In the case of executing the bond to be of good behaviour if one was in beach of these
conditions during the period when the bond was in force, and assaults somebody, that
would be a breach of the peace and it means they have forfeited that bond which they
executed to keep the peace.
53
Thus, when a person had executed the bond to keep the peace, they could also not engage
in any conduct that amounts to a breach of the peace.
2.4. SOME HUMAN RIGHTS ISSUES REGARDING CRIMINAL SUSPECTS
AND BAIL IN GHANA.
2.4.1 FREEDOM OF LIBERTY AND PRESUMPTION OF INNOCENCE UNTIL
PROVEN GUILTY
An individual suspected with a criminal offence faces grave social and personal
consequences, including potential loss of physical liberty, subjection to social stigma and
ostracism from the community, as well as other social, psychological and economic
harms.
In light of the gravity of these consequences, the presumption of innocence is crucial. It
ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or
she is innocent. This is essential in a society committed to fairness and social justice. The
presumption of innocence confirms our faith in humankind; it reflects our belief that
individuals are decent and law-abiding members of the community until proven
otherwise.
ARTICLE 14 of the 1992 Constitution provides that,
(1) Every person shall be entitled to his personal liberty and no person shall be deprived
of his personal liberty except in the following cases and in accordance with procedure
permitted by law54
(a) in execution of a sentence or order of a court in respect of a criminal offence of which
he has been convicted; or
(b) in execution of an order of a court punishing him for contempt of court; or
(c ) for the purpose of bringing him before a court in execution of an order of a court; or
(d) in the case of a person suffering from an infectious or contagious disease, a person of
unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his
care or treatment or the protection of the community; or
(e) for the purpose of the education or welfare of a person who has not attained the age of
eighteen years; or
(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of
effecting the expulsion, extradition or other lawful removal of that person from Ghana or
for the purpose of restricting that person while he is being lawfully conveyed through
Ghana in the course of his
extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about to commit a
criminal
offence under the laws of Ghana.
(2) A person who is arrested, restricted or detained shall be informed immediately; in a
language that he understands, of the reasons for his arrest, restriction or detention and of
his right to a lawyer of his choice.
(3) A person who is arrested, restricted or detained(a) for the purpose of bringing him before a court in execution of an order of a court; or
55
(b) upon reasonable suspicion of his having committed or being about to commit a
criminal
offence under the laws of Ghana, and who is not released, shall be brought before a court
within forty-eight hours after the arrest, restriction or detention.
(4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3)
of this article is not tried within a reasonable time, then without prejudice to any further
proceedings that may be brought against him, he shall be released, either unconditionally
or upon reasonable conditions, including in particular, conditions reasonably necessary to
ensure that he appears at a later date for trial or for proceedings preliminary to trial.
(5) A person who is unlawfully arrested, restricted or detained by any other person shall
be entitled to compensation from that order person.
ARTICLE 12 (1) also provides that;
(1) The fundamental human rights and freedoms enshrined in this Chapter shall be
respected and upheld by the Executive, Legislature and Judiciary and all other organs of
government and its agencies and, where applicable to them, by all natural and legal
persons in Ghana, and shall be enforceable by the Courts as provided for in this
Constitution.
In two Chinese cases, the South China Morning Post (2012) reported that, China's state
security agency on 5th July, 2012 had detained Rio Tinto representative Stern Hu on
suspicion of espionage and bribery. On July 29, the country's ordinary police detained
human rights activist Xu Zhiyong on suspicion of tax evasion. Xu was released on
56
China's equivalent of bail after less than three weeks of investigation. Although the major
charge against Hu has been reduced from espionage to theft of business secrets, he is still
in detention after nine weeks and may be there for many more months before
investigation and expected trial proceedings are concluded.
Every country needs a pre-trial detention system. But pre-trial detention infringes upon
the presumption of innocence, since it punishes before conviction. It also tempts police to
torture suspects in order to extract confessions and restricts suspects' opportunities to
prepare a defense. That is why the International Covenant on Civil and Political Rights,
mandates a presumption in favour of pre-trial release.
Yet in what circumstances should suspects be released pending completion of
investigation and, if necessary, trial? Who should make that decision and when? After
what procedures? And what, if any, conditions should be attached to pre-trial release?
Xu's release was a surprise, since on the Mainland most accused remain detained
throughout the trial and appellate process. Bail applications are seldom granted, even in
cases where a long prison sentence is not possible.
In China, bail is not an individual right designed to minimize restraints on freedom but an
alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative
and for the convenience of the police. Is the detainee gravely ill, pregnant or unlikely to
confess further? Are detention facilities overcrowded? Are there personal or political
pressures to release the detainee? Are the generous time limits for pre-trial detention
about to expire, but investigation is not completed?
57
Some suspects cannot receive bail because they are likely to commit harm if free, and
migrants are usually not eligible because authorities fear their disappearance. Yet Chinese
investigators often deny bail because nothing stimulates confession like detention, where
conditions can be awful even without torture.
If evidence of guilt is insufficient, but police or prosecutors want to save face and reduce
the risk of being sued for false imprisonment, instead of simply releasing the suspect,
they may resort to bail. This enables them to keep the released person, who may not leave
the area without permission and can be subjected to other restrictions, on a short leash for
up to a year. Thus they punish someone they cannot convict and hope to deter similar
conduct.
In China, whether bail decisions are made by police or prosecutors, no hearing gives
suspects or lawyers an opportunity to present arguments favoring bail. No written reasons
for denial are required, and there is no outside review.
Sometimes investigators and detainees negotiate the terms of release. Will the suspect
sign a "confession" that protects his captors against a lawsuit? Will he promise to
abandon the conduct that got him locked up? The police can always cancel the release if
the suspect repudiates any statement or promise extracted as its price. Thus, although not
convicted or even indicted, the released person is subject to monitoring like a criminal on
probation or parole.
In another Sudanese case involving human rights defender Mr Bushra Gamar Hussein,
a publication by the Frontline Defenders (2012), gave the account as follows;
58
On 19 June 2012, Bushra Gamar Hussein declared an open ended hunger strike in protest
against his arbitrary detention despite a judge's dismissal of a call for his remand in
custody.
Bushra Gamar Hussein is a member of the Nuba ethnic group in South Kordofan. He
founded and currently chairs the South Kordofan Human Rights and Development
Organisation (HUDO). He is the former director of the South Darfur branch of the Sudan
Social Development Organisation, which works on development and human rights issues
in Sudan.
On 17 June, a judge dismissed a call for the defender's remand in custody under the 1991
Sudan Penal Procedure Code. However, Bushra Gamar Hussein remains detained in the
custody of the National Intelligence and Security Service (NISS) at the State Security
Prosecutor's Detention Centre in Khartoum for allegedly “working with international
organisations hostile to Sudan”.
As a result of his hunger strike, the health of Bushra Gamar Hussein has seriously
deteriorated. He is reported to not be fully conscious and is unable to take medication. On
24 June, the defender was taken to the Police Hospital under guard, where it is feared that
he is being forcibly fed. On the same day, members of his family staged a protest in front
of the State Security Prosecutor's office calling for his immediate release and denouncing
his treatment in detention. The predominently women protesters were holding banners
critical of the discriminatory manner he was being treated and the lack of equality before
the law.
59
There were public concerns about the deteriorating health of human rights defender
Bushra Gamar Hussein as a result of reported torture and ill-treatment during his arbitrary
detention. They therefore, urged the Sudanese authorities to carry out an independent,
impartial and thorough investigation into the arbitrary detention of Bushra Gamar
Hussein and reports of his torture and ill-treatment in detention with a view to bringing
perpetrators to justice.
In Europe, it has also been reported as follows; Murder suspects will continue to be
granted bail after Government lawyers ruled that a blanket ban would breach their human
rights.
The astonishing conclusion of a review ordered by Gordon Brown will be made public
later today.
The Ministry of Justice was asked by Number 10 to consider whether the law should be
changed to prevent suspected killers being released back on to the streets.
But Whitehall lawyers have concluded that any 'presumption' that a suspect should be
denied bail would flout the European Convention on Human Rights.
The Convention - which Labour enshrined into British law via the Human Rights Act states that all criminal suspects have the right to have their cases considered on their
individual merits.
As a result, the courts will continue to grant bail to many of those accused of murder and
manslaughter.
60
Earlier this year, it emerged that there were 60 murder suspects walking the streets while
awaiting trial. This is one in every eight - or 13 per cent - of those currently charged with
the offence.
The number let out in manslaughter cases is even more dramatic. Some 85 per cent of
suspects studied in a Government 'snapshot' survey were on bail.
The Prime Minister ordered the review after policeman Garry Weddell was granted bail
over the death of his wife. Months later, he shot dead his mother-in-law and then killed
himself. In the wake of the case, Mr Brown declared: 'If there are changes in the law
necessary, we will make them.' But the review only tinkers at the edges of the bail
regime, for example by allowing more appeals in cases where the Crown opposed bail,
but it was granted by the courts. There will also be a technical change which means that
those who breach bail handed to them by a crown court judge will return to the same
court.
2.4.2 IN THE INTEREST OF JUSTICE
It is usually in the interest of individuals and society at large that adjudication be based
on the principles of fairness and natural justice. The overriding consideration should
remain in the evaluation of all interests involved. Most of the interests at stake, both those
in favour and against the granting of bail are listed in both the Constitution and in the
Ghanaian Criminal Procedural Code. According to these provisions, the question of the
interests of justice mainly entails securing the attendance of the accused at trial and
protecting the investigation and prosecution of the case against hindrance. The danger
61
that a bail applicant may pose to society may also be taken into account. There must,
however, be a likelihood that such a risk will materialize. This has been provided in;
Article 12 (2) of the 1992 Constitution that,
Every person in Ghana, whatever his race, place of origin, political opinion, colour,
religion, creed or gender shall be entitled to the fundamental human rights and freedoms
of the individual contained in this Chapter but subject to respect for the rights and
freedoms of others and for the public interest.
2.4.3 DIGNITY OF A PERSON
It is rather unfortunate that in certain circumstances, people suspected of committing
crime are put in circumstances that denigrate their dignity as human persons. These are
people who have not even been tried by any court of competent jurisdiction, let alone
pronounced as convicted offenders. However, the state machinery still detain or place
them in custody, thus denying them of their fundamental freedom of movement and their
right to be presumed innocent until proven guilty. The above has been supported by the
1992 constitution. Thus,
ARTICLE 15 says,
(1) The dignity of all persons shall be inviolable.
(2) No person shall, whether or not he is arrested, restricted or detained, be subjected to (a) torture or other cruel, inhuman or degrading treatment or punishment;
(b) any other condition that detracts or is likely to detract from his dignity and worth as a
human being.
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2.4.4 LIFE OF A PERSON
The life of a person is very important and crucial to the survival or all persons. Causing
the death of another as a result they being denied their right to bail, thus resulting in death
is therefore against their fundamental human rights. The issue is even more serious when
the suspect further has other health related issues that needed the constant attention of
their Doctors or close relations.
ARTICLE 13 of the 1992 constitution states that;
(1) No person shall be deprived of his life intentionally except in the exercise of the
execution of a sentence of a court in respect of a criminal offence under the laws of
Ghana of which he has been convicted. Unfortunately, there are instances, particularly
during periods of military regime where mere suspects of crime were denied bail and
often brutalized severely leading to their untimely deaths.
General Comment No. 8 of the Human Rights Committee has further reaffirmed that pretrial detention should be an exception rather than the rule and should be as short as
possible. And if preventive detention is opted for reasons of public security, it must be
controlled by these same provisions; i.e. it must not be arbitrary, and must be based on
grounds and procedures established by law (art.9 (1)), the information of the reasons
must be given (art.9 (2)) and court control of the detention must be available (art.9 (4)) as
well as compensation in the case of a breach (art.9 (5)).
63
However, in some of the cases it would be realized that the courts dealt with the bail
application as an issue of guilt and not of interests of justice. The courts, instead of
rendering their judgment on the basis of grounds and procedures established by law
merely considered the level of graveness of the alleged offence to deny bail and the
impact of the offence on the society. This further goes against the principle of
presumption of innocence as the arguments by some of the courts are based on the
assumption of guilt of the accused persons before judgment of guilt is rendered. All of the
above raise serious human rights issues and concerns that must be attended to by the
state.
2.4.5 FAIR TRIAL
ARTICLE 19 of the constitution of Ghana provides that,
(1) A person charged with a criminal offence shall be given a fair hearing within a
reasonable time by a court.
(2) A person charged with a criminal offence shall(a) in the case of an offence other than high treason or treason, the punishment for which
is death or imprisonment for life, be tried by a judge and jury and (i) where the punishment is death, the verdict of the jury shall be by such majority as
Parliament may by law prescribe.
(ii) in case of life imprisonment, the verdict of the jury shall be by such majority as
Parliament may by law prescribe;
(b) in the case of an offence triable by a Regional Tribunal the penalty for which is death,
the
decision of the Chairman and the other panel members shall be unanimous;
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(c) be presumed to be innocent until he is proved or has pleaded guilty;
(d) be informed immediately in a language he understands, and in detail; of the nature of
the
offence charged;
(e) be given adequate time and facilities for the preparation of his defence;
(f) be permitted to defend himself before the court in person by a lawyer of his choice;
(g) be afforded facilities to examine, in person or by his lawyer, the witnesses called by
the prosecution before the court, and to obtain the attendance and carry out the
examination of witnesses to testify on the same conditions as those applicable to
witnesses called by the prosecution.
(h) be permitted to have, without payment by him, the assistance of an interpreter where
he cannot understand the language used at the trial; and
(i) in the case of the offence of high treason or treason, be tried by the High Court duly
constituted by three Justices of that Court and the decision of the Justices shall be
unanimous.
(3) The trial of a person charged with a criminal offence shall take place in his presence
unless(a) he refuses 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 order him to be removed for the trial to
proceed in his
absence.
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(4) Whenever a person is tried for a criminal offence the accused person or a person
authorized by him shall, if he so requires, be given, within a reasonable time not
exceeding six months after
judgement, a copy of any record of the accused person.
(5) A person shall not be charged with or held to be 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.
(6) No penalty shall be imposed for a criminal offence that is severer in degree or
description than the maximum penalty that could have been imposed for that offence at
the time when it was
committed.
(7) No person who shows that he has been tried by a competent court for a criminal
offence and either convicted or acquitted, shall again be tried for that offence or for any
other criminal offence of which he could have been convicted at the trial for the offence,
except on the order of a superior court in court in the course of appeal or review
proceedings relating to the conviction o acquittal.
(8) Notwithstanding clause (7) of this article, an acquittal of a person on a trial for high
treason shall not be a bar to the institution of proceedings for any other offence against
that person.
(9) Paragraphs (a) and (b) of clause (2) of this article shall not apply in the case of a trial
by a court martial or other military tribunal.
(10) No person who is tried for a criminal offence shall be compelled to give evidence at
the trial.
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(11) No person shall be convicted of a criminal offence unless the defined and the penalty
for it is prescribed in a written law.
(12) Clause (11) of this article shall not prevent a Superior court from punishing a person
for contempt of itself notwithstanding that the act or omission constituting the contempt
is not defined in a written law and the penalty is not so prescribed.
(13) An adjudicating authority for the determination of the existence or extent of a civil
right or obligation shall, subject to the provisions of this Constitution, be established by
law and shall be independent and impartial; and where proceedings for determination re
instituted by a person before such as adjudicating authority, the case shall be given a fair
hearing within a reasonable time.
(14) Except as may be otherwise ordered by the adjudicating authority in the interest of
public morality, public safety, or public order the proceedings of any such adjudicating
authority shall be in public.
(15) Nothing in this article shall prevent an adjudicating authority from excluding from
the proceedings persons, other than the parties to the proceedings and their lawyers, such
as extent as the authority(a) may consider necessary or expedient in circumstances where publicity would
prejudice the interest of justice; or
(b) may be empowered by law to do in the interest of defence, public safety, public order,
public morality, the welfare of persons under the age of eighteen or the protection of the
private lives of persons concerned in the proceedings.
(16) Nothing in, or done under the authority of , any law shall be held to be inconsistent
with or in contravention of, the following provisions(
67
a) paragraph (c) of clause (2) of this article, to the extent that the law in question imposes
upon a person charged with a criminal offence, the burden of providing particular facts;
or
(b) clause (7) of this article, to the extent that the law in question authorizes a court to try
a member of disciplined force for a criminal offence notwithstanding any trial and
conviction or acquittal of that member under the disciplinary law of the force, except that
any court which tries that member and convicts him shall, in sentencing him to any
punishment, take into account any punishment imposed on him under that disciplinary
law.
(17) Subject to clause (18) of this article, treason shall consist only(a) in levying war against Ghana or assisting any state or person or inciting or conspiring
with any person to levy war against Ghana; or
(b) in attempting by force of arms or other violent means to overthrow the organs of
government established by or under this Constitution; or
(c) in taking part or being concerned in or inciting or conspiring with any person to make
or take part or be concerned in, any such attempt.
(18) An act which aims at procuring by constitutional means an alteration of the law or of
the policies of the Government shall not be considered as an act calculated to overthrow
the organs of government.
(19) Notwithstanding any other provision of this article, but subject to clause (20) of this
article,
Parliament may, by or under an Act of Parliament, established military courts or tribunals
for the trial of offences against military law committed by persons subject to military law.
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(20) Where a person subject to military law, who is not in active service, commits an
offence which is within the jurisdiction of a civil court, he shall not be tried by a courtmartial or military of a court-martial or other military tribunal under any law for the
enforcement of military discipline.
(21) For the purposes of this article, “criminal offence” means a criminal offence under
the laws of Ghana.
Despite the above, most suspects are often denied these rights guaranteed by the dictates
of human rights principles and as enshrined in the supreme law of Ghana also. But unlike
the Police as an institution of the Executive arm of government, the court in many
instances steps in to ensure that persons who are suspected of crimes or standing trials are
accorded the necessary respect to their right to bail.
In an episode as reported in Hong Kong, January 27, 2012 the AHRC comments on the
inequality before the law and the lack of protection to poor villagers charged for offenses
as a result of poverty.
In that report, a villager named Giovani Maceda of Mayorga, Leyte is being detained
after he was arrested for allegedly stealing coconut fruits. The value of coconut fruits that
he and three of his co-accused were alleged to have stolen is USD25; however, a local
court which issued the arrest warrant imposed Php40,000 (USD933) bail for their
temporary release. Here, what Maceda had experience is no different to many other
detainees who are congesting the country's prisons. There are many prisoners who have
to endure lengthy trials and detention because they could not simply afford to pay the
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bail.
The purpose of imposing bail is supposedly to ensure that the person subject of the
criminal trial appears for trial. Also, the more serious the offense and the capacity of the
person accused to evade the law, like travelling outside the country, the more excessive
the bail that would imposed should have been. However, none of this principle applies on
Maceda's case. In fact, the offense he and his co-accused were alleged to committed were
due to poverty; nevertheless, the court had completely disregarded fundamental
principles of equality before the law and equal protection of the law by imposing
excessive bail.
Also, apart from imposing excessive bail and bail disproportionate to the nature of the
criminal offense, in most cases the rich and influential abuse legal process against the
village poor. The filing of these types of cases in court is common in the places where
there is conflict in land ownership.
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CHAPTER THREE
METHODOLOGY
3.1 INTRODUCTION
The approach adopted to undertake this Research is a qualitative one. This enabled me to
provide an interpretive measurement of human right issues involving suspects and bail as
enforced at the courts in Ghana. Due to the fact that the issue of human rights is sensitive
and the lack of adequate data system of the legal system, a multi-methodology approach
was adopted and that includes:
1. Literature review to compile in a form of an overview of what is currently known, and
critically assess the practices experienced to date. This enabled me to point out which of
the practices in implementing human rights correspond to wider patterns, and which are
specific to the Ghanaian context.
2. Document analysis to draw together existing data on human right issues surrounding
suspects and bail; thus enabling me to assess the weaknesses and gaps in the enforcement
of human rights in Ghana and to determine how different people, especially judges,
understand the concept of human rights and its application to suspected criminals and
their right to bail.
3. Review of cases dealing directly with issues of human rights with respect to criminal
suspects and their right to bail in Ghana. Ten (10) decided court cases from the Ghana
71
Law Reports were identified and collected from the courts. The ten (10) were purposively
chosen owing to the fact that not many cases have been reported on the subject. Also is
the reason that just a few but illustrative analyses was needed to prove a case on as to
whether or not the Ghanaian courts have done their bit since independence as the period
for consideration. Again, is to give a sense of the human rights issues and mechanism
available in terms of what can be learnt from a single case on the topic. The case studies
are further used for additional conceptual and theoretical analysis of human rights
provisions with reference to the Constitution and other International human rights
standards.
3.2 AREA OF STUDY
The area of the study was strictly restricted to the courts in Ghana. The choice also took
into consideration the specific nature of the topic and the total number of reported
Ghanaian court cases which were available and relevant to the issues at stake. Thus, cases
were selected to cover all ten (10) regions of Ghana, as reported in the official Ghana
Law Reports.
3.3 RESEARCH DESIGN
The research design used was a descriptive study method. This design was chosen
because of the historical nature of the study. It is meant to collect the historical data of
how the courts, in particular have fared with implementing human rights laws and
principles in Ghana. Documents were used in the research to trace study and compare
past events in order to clarify current practices. This may consist of public or private or
72
both records that researchers obtain about a site or participant in a study and they can
include newspapers, minutes of meetings, personal journal, letters and examination
results. This record however could be extended to include those of decided court cases. In
this wise, the researcher was able to have a fair knowledge of the situation. Vierria,
Pollock and Golez (1998) stipulate that records evaluate the evidence they gather by
assessing the validity of their sources. They also examined the authenticity of their
sources. Sarantakos (1998), mentions that the use of documents gives quick and
accessible information.
Data was extracted from both the Constitution and the Criminal Procedure Code in order
to get a broad national representative picture of human rights issues involving suspected
criminals and their right to bail in Ghana under the courts. The data was also meant to test
the wealth of knowledge regarding the court as an institution tasked to ensure human
rights and its principles are observed and implemented, especially under the fourth
republic in Ghana.
3.4 POPULATION
The target population of the study was made up of Judges in Ghana. The views of the
above category of people were sampled from the Ghana Law Reports. The selected cases
were carefully chosen to have detailed historical facts of the human rights issues as
pertain to criminal suspects and their right to bail in Ghana. This has allowed the
researcher to review the records of the courts in order to give greater depth to the
qualitative information provided by the Ghana Law Reports.
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3.5 REVIEW OF OFFICIAL RECORDS
This researcher undertook a six month-period for taking records of relevant cases from
the Ghana Law Reports from January to June 2012. This time was selected to allow the
researcher cover the relevant court cases in respect of the needed records concerning the
topic and the human rights issues as applied to criminal suspects and their right to bail in
Ghana.
The time duration was also meant to allow the researcher meet the bureaucracy involved
in releasing information in our public and private institutions. The following areas were
where the information was gathered from.
1
Legon Balme Library
2
Legon Faculty of Law Library
3
The researcher also made use of the internet
It is however enriching to note that all the documents and reports sampled from the
various sources indicated that Ghana has observed and is practicing human rights
principles and tenets now and since becoming a member of the United Nations at an
appreciable level. As far back as in the 1st Republic of this country, the courts were
credited for ensuring that justice was done to every citizen of Ghana, as captured in the
celebrated case of Re Akoto .
What tainted the image of Ghana were perhaps within the eras of military regimes.
Unfortunately, most of the cases and instances either did not see the light of being taken
to court, or were not reported, thus fallen outside the scope of this research.
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3.6 SAMPLE AND SAMPLING PROCEDURE
Due to the nature of the research and the target population involved, the researcher had to
use purposive sampling technique to settle mainly on the ten (10) cases chosen from the
Ghana Law Reports.
3.7 DATA COLLECTION TECHNIQUES
The researcher was a former student at the Faculty of Law, University of Ghana. So it
was very easy for him to get access to both the Faculty Library and the Balme library
whereupon access to all the necessary Ghana Law Reports and other supporting
documents did not become an issue.
The technique used by the researcher in colleting the data, was to sieve through all the
reported cases in the Ghanaian courts and carefully select those that capture human rights
issues and dimensions as may be relevant to criminal suspects and their right to bail. All
these cases were collected personally. The researcher also made use of note jotting during
the collections and reading. The above technique used was meant to simplify the data in
order to make room for content analysis.
3.8 DATA ANALYSIS
The data was collected taken into account the activities of the courts and the role played
in terms of their human rights record under the following themes.
1
Obedience to the rights of freedom and presumption of innocence of suspected
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criminals
2
Interests of Justice
The data was collected by personally going though the Ghana Law Reports since
inception to date whilst taking down notes in order to come out with the relevant cases
for analysis. The cases were then read thoroughly in order to come out with case briefs
involving the facts, the issue (s) that needed to be resolved by court as well as the final
holdings. However, the various dicta, comments, judicial reviews and other opinions
shared by the courts in arriving at their final decisions were equally considered. The
information was analyzed based on contents and later broken into sub-themes for analysis
according to
1. The circumstances that surround suspected criminals and their right to bail in Ghana.
2. The human rights issues, their promotion and protection as linked to suspected
criminals and their right to bail and the role played by the courts in Ghana.
The full citations to the samples of the reported cases selected from the Ghana Law
Reports have been captured at the appendix to the thesis.
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CHAPTER FOUR
RESULTS AND FINDINGS
4.1 INTRODUCTION
The chapter seeks among others to present the views of the court and regarding bail cases
and instances whereupon suspects were granted or denied these rights in accordance to
the laws of Ghana. Thus, a Case Study of Selected Decided Court Cases and their Human
Rights implications as applied to criminal suspects and bail in Ghana have been reviewed
as follows:
4.2 REVIEW OF TEN (10) SELECTED COURTCASES AS REPORTED IN
GHANA
Foremost is the case of FYNN & ANOR. V. THE REPUBLIC [1971] 2 G.L.R 433. In
this case, the two applicants were convicted on various counts of stealing and sentenced
to twelve months and two years imprisonment respectively. They appealed the following
day and applied for bail pending the hearing and determination of the appeal. They
argued that they were to be granted bail since the judgment was wrong in law and the
sentences were so short that they might have finished serving them before the
determination of the appeal.
The issue for the court was whether on those facts they ought to be granted bail. The
court held that although one had to proceed with caution when granting bail after a court
of competent jurisdiction had convicted the person, there were circumstances justifying
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such a grant in the instant case. In view of the delays in the court registry, the applicants
were unlikely to get the record of proceedings before the expiration of twelve months, by
which time they might have served either the whole or a substantial part of the sentences.
The court set down the circumstances in which bail after conviction could be
appropriately granted as follows:

If there are exceptional or unusual grounds for the application

If there is a likelihood of the appeal succeeding

If it is a case of such a nature where it would be of assistance for the preparing of
a real case for appeal that the appellant should be free to confer with his counsel
and prepare his appeal

If having regard to the sentence there is going to be a considerable delay either in
preparing the record of appeal or because of the long vacation and in consequence
the hearing of the appeal is likely to be unduly delayed resulting in the appellant
serving the whole or substantial portion of his sentence.
The court therefore used its discretion and granted them bail.
It could be argued based on this case that the Ghanaian court as a matter of fact did well
by ensuring that the right thing was done by exercising its discretion in laying down
certain parameters within which bail may be granted, though the existing laws for bail did
not cater for such circumstances at the time in Ghana.
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Second, is the bail case of BAIDEN V. THE REPUBLIC [1972] 2 G.L.R. 174
Here, the applicants were convicted by a High Court for perjury and sentenced to a term
of imprisonment. The trial judge indicated that he was minded to grant bail pending
appeal if such an application were made. The applicants therefore filed an appeal against
the decision and brought the instant application. The court held that it would be farcical
for a court that had convicted a person to grant bail pending appeal against its own
judgment. Therefore a convicted person ought not to apply for bail pending appeal to the
same court which made the conviction.
In this particular case also, the court was of the view that, natural justice would not
permit them to be judges in their own cause. Thus should not have a voice in a case that
they had first hand interest in. They therefore directed that the appropriate thing be done
by appealing to a different court, usually with a higher authority and jurisdiction to
handle the case as stipulated by the nemo judex in causa sua principle of natural justice.
Also in OKOE v. THE REPUBLIC [1976] 1 G.L.R. 80, the applicant was charged with
forcibly entering onto land with violence. His application for bail before trial was refused
by the trial judge. He therefore applied for bail at the High Court pending his trial at the
Circuit Court. His application was opposed by the prosecution. The issue was whether or
not the applicant could be released on bail pending trial.
The court however held that, an applicant could be granted bail upon such conditions as
were reasonable to secure his attendance at the trial if there is an issue of delay. Under the
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laws of Ghana, Section 96 of Act 30 as amended by N.R.C.D 309 is the governing law on
the grant of bail when there is no question of delay, but where there are questions of
unreasonable delay in prosecuting the case, then the relevant law is article 15(3)(h) & (4)
of the Constitution, 1969 [now Article 14(3)(b) & (4) of the Constitution, 1992]. On the
facts, the applicants were prima facie entitled to bail under section 96 (1) of Act 30.
However, in Sec 96 of Act 30, sub-section (3), it is provided that the amount and
conditions of bail shall be fixed with due regard to the circumstances of the case and shall
not be excessive or harsh. Sub-section (4), also grants that, a court shall not withhold or
withdraw bail merely as a punishment. Also in sub-section (5), it stated that, a court shall
refuse to grant bail if it is satisfied that the defendant may not appear to stand trial, or
may interfere with a witness or the evidence, or in any way hamper police investigations;
or may commit a further offence when on bail; or is charged with an offence punishable
by imprisonment exceeding six months which is alleged to have been committed while
the defendant was on bail.
However, in sub-section (6) and in considering whether it is likely that the defendant may
not appear to stand trial, the law says the court shall take into account
(a) the nature of the accusation,
(b) the nature of the evidence in support of the accusation,
(c) the severity of the punishment which conviction will entail;
(d) whether the defendant, having been released on bail on a previous occasion, has
willfully failed to comply with the conditions of the recognizance entered into by the
defendant on that occasion;
80
(e) whether or not the defendant has a fixed place of abode in the Republic, and is
gainfully employed;
(f) whether the sureties are independent, of good character, and of sufficient means.
Here again, the instant case is an embodiment and demonstration of the fact that, the
court in Ghana in playing its role as a human rights enforcement institution did well by
ensuring that every rights that needed to be given to people as regards their rights to bail
were made necessary and available to them, without fear nor favour. This also meant, bail
would not have been granted to suspects or convicts who did not satisfy the prevailing
conditions given by the laws of the land.
Another case used in the study was GORMAN v. REPUBLIC (2003 – 2004) 2 SCGLR
784. The fact of this case is that, in 2004, five appellants and another were arraigned
before a regional tribunal on narcotics related charges. They applied for bail and were
granted it. The Attorney-General appealed against the grant of the bail. The Court of
Appeal upheld the appeal and rescinded the bail earlier granted by the trial tribunal. The
Court of.Appeal held that the tribunal should have considered the fact that the offences
leveled against the accused persons were “serious and grave”. The accused persons
appealed to the Supreme Court.
The Supreme Court unanimously held and dismissed the appeal. The presumption of
innocence in Article 19(2) of 1992 Constitution was necessary but not a sufficient ground
for the grant of bail. Where in a Statute, bail is specifically disallowed; Article 19(2) is
81
not a bar to the application of that Statute. In any case the grant of bail is subject to
judicial discretion.
Sec 96 (7) a court shall refuse to grant bail
In a case of treason, subversion, murder, robbery, hijacking, piracy, rape, defilement or
escape from lawful custody; or
Where a person is being held for extradition to a foreign country.
Perhaps, this case stood out as one of the important cases that passed the test in ensuring
that the additional roles given to the appellate and other superior courts of judicature as
mediators and supervisors of the lower courts and persons who appeared before them.
This they do by also ensuring that suspects and convicted persons were given every right
due them and justice also brought into being when applicable. It could be seen in this
particular case that the suspect did not qualify for bail as the laws of Ghana demand, yet
the trial court went ahead in granting him bail. However, both the Court of Appeal and
the Supreme Court did the right thing by using its powers in over-turning the decision of
the lower court after the Attorney-General had brought that application.
Fifth, is the case of ABIAM v. THE REPUBLIC [1976] 1 G.L.R. 270. In this case, the
applicant who had been charged with attempted murder, applied for bail. The respondents
objected on grounds of N.R.C.D. 309, s. 97(7)
The Ghanaian court however held that attempted murder was not included in the offence
of murder and so prohibition did not cover it (that is, for being a lesser offence). Again,
the applicant was in ill-health and there was no danger of repeating the offence. Bail was
therefore granted. Here again, the court went strictly according to law and ensured that
the applicant had justice as provided for by the decree at the time.
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Further in BOATENG v. REPUBLIC [1976] 2 G.L.R. 444, the applicant applied for
bail whilst standing trial on a charge of stealing cocoa. The court held that subversion
included stealing cocoa and therefore bail was prohibited. The court in this case made
sure they did nothing other than what they were mandated by law to do.
Another case worthy of this cause is the REPUBLIC v. ARTHUR [1982 – 83] G.L.R.
249.
Here, the applicants who had been committed to stand trial for murder filed for bail
pending trial, arguing that there was no likelihood of their case being heard within a
reasonable time as prescribed by article 21 (4) of 1979 Constitution (now article 14 (4) of
the 1992 Constitution) since there were older cases still awaiting trial. The court however
held that since certain crimes took longer to investigate than others, what constituted
“unreasonable period” had to be determined within the particular context. The application
was therefore dismissed since the applicants had failed to show that there had been
unreasonable delay in bringing them to trial.
Although, this particular case bothered on murder charges, the applicant had sought to
argue his point based on the fact that the court may grant bail in circumstances where
timing was of the essence to deny him of his right to bail. The court, however in its
wisdom objected to that as it went further to indicate that the suspect had not been able to
prove its case beyond all reasonable doubt.
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Additionally, is the case of PRAH & ORS. V. THE REPUBLIC [1976] 2 G.L.R 278.
Again, the applicants were charged with the offence of murder contrary to sec 46 of Act
29. They applied for bail under Sec 96(3) and supported it with an affidavit by which
they denied ever committing the offence charged. The prosecution did not file any
affidavit in opposition and the question was whether they could be granted bail in the
face of the statutory provisions on the matter.
The court basing its decision on sec 96(7) (a) of Act 30, held that, a person properly
charged with the offence of murder could not be granted bail. However, in this case the
applicants denied ever committing the crime which was not opposed by the prosecution.
They could therefore be granted bail since the evidence did not support the fact that they
had committed any offence.
In this case also, it could be seen that the court did very well by ensuring that the suspects
were given bail as the prosecution could not prove the charges against them.
There is also the case of DOGBE v. THE REPUBLIC [1976] 2 G.L.R. 82. In this case,
the applicants who were on trial for murder, had applied to a High Court for bail which
had been refused. A second application to another High Court during the criminal assizes
had also been turned down. They therefore petitioned the Head of State and the AttorneyGeneral. The Attorney-General consequently recommended in a letter to the court that on
account of the fact that four out of the seventeen accused persons were of old age and ill
health, it should grant them bail despite the fact that the court had no discretion to do so
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under the provisions of N.R.C.D. 309. Following this recommendation, the applicants
renewed their application before the same judge. The main issues for the court were
whether the Attorney-General or Head of State could influence the grant of bail; and
whether a court could set aside the provisions of a statute and exercise a power of which
it had been specifically deprived.
Here, and on the issue of whether other officials could influence the grant of bail, the
court held that no-one could exercise that influence on the court during the exercise of its
discretionary power. The Attorney-General could influence the trial process by nolle
prosequi but not by writing his views to the court, and the Head of State could also
influence the process by enacting a decree. On the second issue, the court stated it was
not its place to shunt aside a statute and operate outside its framework and that the
provisions of sec 96 of Act 30 as amended by N.R.C.D. 309 were imperative and
mandatory and so no discretionary power could be exercised in relation to them.
This is yet another remarkable instance where the Ghanaian court was victorious and did
not deviate from its mandate. This was even to the point of refusing to be influenced by
both the Attorney-General and the Head of State at the time.
Finally is the case of DASWANI v COP [1964] GLR 54:
This was an appeal case against a decision of a circuit court whereby he forfeited the sum
named under a bond in which he stood as surety, for his failure to secure the appearance
of the principal at a time when he was required by the police. It was his contention that
since the police failed to specify another date on the bond at the time when the principal
85
party appeared before them, that in itself amounted to discharge of the bond. The
respondent, on the other hand, maintained that it was not necessary to specify a new date
on the bond, and that it was only when a police officer wrote to indicate that the
principal's attendance was no longer required that the bond could become discharged.
The court however in its decision held that: “a bail bond like a civil bond is a contract
under seal, and for the bond to be enforceable against the obligees or the principal party,
any conditions precedent must be shown to have been fulfilled. In the present case,
failure on the part of the police to state another date for the appearance of the principal
party discharged the surety from his obligations under the bond, and such failure was a
defence to any action which might be brought to enforce the obligations under the bond”.
The court further stated that: “In my view, a bail bond like a civil bond is a contract under
seal in which the contracting parties undertake certain exclusive obligations but which
obligations are taken for the benefit of the one or the other contracting party or some third
party. For the bond to be enforceable against the obligees or principal party and sureties
the party seeking to enforce it must show that if there were any conditions precedent to
the enforcement of the obligations undertaken by the obligees, that condition precedent
has been fulfilled.
It appears to me that the bond in this case specifies that the principal must appear at a
certain date and thereafter at dates to be named. The principal party appeared on 7 July
1963 and he was told to go away without a date being named. There was an obligation
on the police to name a date at every appearance of the principal party. It was a condition
86
precedent to the fulfillment of the obligation by the surety that a date was named and
failure to fulfill this condition precedent constitutes a discharge of the obligations of the
party”. Finally, and to conclude in this case also, the court highly exonerated itself by
making sure that the appeal was upheld and justice done to the applicant since he had a
better case presented compared to the argument put forward by the police prosecutor.
The important lesson here however was the fact that all the cases extracted from the
Ghana Law Reports for this study saw the court basing their decisions in light of an
applicable law and other human rights principles without fear nor favour to any person
nor institutional body of government. The conclusion drawn from this reports is to the
effect that, the courts in Ghana have since independence, played a key and very pivotal
role in the promotion and protection of criminal suspects and their rights to bail in Ghana
whilst ensuring justice is also done to the collective good of the general society.
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CHAPTER FIVE
DISCUSSION
Despite the arguments put forward by the courts, the provisions of the Constitution and
ICCPR provide the test to be applied in bail decisions. Bail is granted to avoid punishing
accused persons before conviction. In bail decisions, a balance must thus be struck
between, on one side, the interests of justice (that the accused should stand trial) and, on
the other, the right to freedom of liberty and presumption of innocence of the accused as
affirmed by art (14) of the 1992 Constitution of Ghana. However, the Ghanaian
Constitution favours liberty; i.e. the detainee is entitled to release unless it is in the
interest of justice that he or she be denied bail.
The presumption of innocence is a principle that places the burden of proof squarely on
the prosecution. In the Canadian case of R v Oakes, the importance of the presumption of
innocence is put as follows:
The presumption of innocence protects the fundamental liberty and human dignity of any
and every person accused by the State of criminal conduct. An individual charged with a
criminal offence faces grave social and personal consequences, including potential loss of
physical liberty, subjection to social stigma and ostracism from the community, as well as
other social, psychological and economic harms. In light of the gravity of these
consequences, the presumption of innocence is crucial. It ensures that until the State
proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is
essential in a society committed to fairness and social justice. The presumption of
88
innocence confirms our faith in humankind; it reflects our belief that individuals are
decent and law-abiding members of the community until proven otherwise.
The overriding consideration should remain in the evaluation of all interests involved.
Most of the interests at stake, both those in favour and against the granting of bail are
listed in both the constitution and in the Ghanaian Criminal Procedure Code. According
to these provisions, the question of the interests of justice mainly entails securing the
attendance of the accused at trial and protecting the investigation and prosecution of the
case against hindrance. The danger that a bail applicant may pose to society may also be
taken into account. There must, however, be a likelihood that such a risk will materialize.
General Comment No. 8 of the Human Rights Committee has further reaffirmed that pretrial detention should be an exception rather than the rule and should be as short as
possible. And if preventive detention is opted for reasons of public security, it must be
controlled by these same provisions; i.e. it must not be arbitrary, and must be based on
grounds and procedures established by law (art.9 (1)), the information of the reasons
must be given (art.9 (2)) and court control of the detention must be available (art.9 (4)) as
well as compensation in the case of a breach (art.9 (5)).
However, in some of the cases it would be realized that the courts dealt with the bail
application as an issue of guilt and not of interests of justice. The courts, instead of
rendering their judgment on the basis of grounds and procedures established by law
merely considered the level of graveness of the alleged offence to deny bail and the
89
impact of the offence on the society. This further goes against the principle of
presumption of innocence as the arguments by some of the courts are based on the
assumption of guilt of the accused persons before judgment of guilt is rendered. In
rendering their decisions on most of the issues of bail, the Courts noted that the
constitution truly provides that persons arrested have the right to be released on bail.
Since Chapter Five of the Constitution deals with fundamental rights and freedoms, it is
necessary to make reference to it, where deemed necessary in relation to particular
provisions. So, in exceptional circumstances prescribed by law, the court may deny bail
or demand adequate guarantee for the conditional release of the arrested person. In this
respect, it can reasonably be said that the right to bail does not only apply to arrested
persons but also to accused persons. Accordingly, and in principle the right to bail is a
constitutional right. However, it may be limited in accordance with the grounds and
procedures established by law. The provision of art.9 (3) of the ICCPR is no different
than this.
The other issue to be considered in grant of bail is the determination of where the interest
of justice lies. As noted above, the issue of bail is not an issue of guilt but rather where
the interest of justice lies. In determining the factors for and against the grant of bail, the
court is, thus, to act as proactively and inquisitorially as may be necessary. With this
regard, the Constitutional Court of South Africa noted that ‘if neither side raises the
question of bail, the court must do so. If the parties do not of their own accord adduce
90
evidence or otherwise produce data regarded by the court to be essential, it must itself
take the initiative.
From the wording of the Ghanaian Criminal Procedure Code, it can similarly be argued
that the court should take the initiative in raising the issue of bail where the parties fail to
do so as it has the duty to decide whether the arrested person should stay in custody or be
released on bail. Though the constitution provides that such decision shall be made within
48 hours, it is not clear from which date the clock starts ticking. However, taking into
consideration that the same provision requires the court to consider the application for
bail without delay, it can rationally be argued that the time starts ticking from the time the
application for bail was made. What still remains as an issue in the statute books of
Ghana is the aspect by the parties to refuse bail on week-ends, where the 48 hr rule does
not apply technically.
In ensuring the interest of justice here, we need to, on one side, secure the attendance of
the accused at trial and protect the investigation and prosecution of the case against
hindrance. On the other side, we need also to protect the fundamental right of everyone
who is arrested to be released on bail, subject to reasonable conditions. Here, it is also
necessary to consider this in relation to art.9 (4) of the ICCPR, which provides an
important guarantee by way of the right to control by a court the legality of the detention.
Though every constraint on the right to liberty might not amount to violation of this right,
restriction of this right should be a ‘just cause’ and on such ground as is established by
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law. Even where the deprivation of liberty is with a ‘just cause’, the manner in which the
deprivation is undertaken has to be in accordance with the procedure established by law
as is required by the Constitution.
Though the degree of procedural fairness will have to be determined on a case-by-case
basis, the level of procedural fairness in some of the cases is highly questionable because
of the duration and purpose of detention of the accused person.
On the other hand, the foreign case of the State V. Mekwanenet Fekadu, the Amhara
Regional High Court stated that art.20 (3) of the Constitution affirms that an accused
person has the right to be treated as an innocent person until s/he is proven to be guilty of
the alleged crime. The mere evidence that the appellant is allegedly accused under a
different court to have committed another offence is not enough to presume that his
release will endanger the public order. This Court thus overturned the decision rendered
by the lower court denying bail and conditionally released the accused person with a
surety of 3000 ETB.
However, in another similar case, State V. Telek Sew Bekele, the Federal Supreme Court
denied bail to the accused persons on the grounds that the appellant is allegedly accused
under a different court on a different account. The Court argued that this is enough
evidence proving the danger that the bail applicant poses to the society.
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With regard to these two similar cases with different results, it may be essential to
consider the comment of the Human Rights Committee. It places the burden of proof of
the charge on the prosecution and gives the accused the benefit of doubt by reason of the
presumption of innocence. No guilt can be presumed until the charge has been proved
beyond reasonable doubt. It is therefore a duty for all public authorities to refrain from
prejudging the outcome of a trial. Therefore, the court should not start with the
presumption that the accused has committed the offence for which s/he is charged.
Moreover, the fact that the accused person is allegedly accused under another court of
law for a different account should not be a decisive factor to determine the dangerous
nature of the accused, as neither court have yet established his/her guilt. Yet in another
case, the accused argued that the right to bail as it is recognized by the existing
Constitution is a fundamental right against which no limitation may be placed. This is
further in line with international standards and art.9 (3) of the ICCPR that Ghana has
ratified. However, the accused argued that, the provision in the Criminal Procedure Code
was not in line with the constitutional right to bail. It was actually in contravention of the
Constitution because it did not recognize the right to bail as a fundamental right and
granted the power to a court of law to deny the right to bail for an alleged offence of a
low degree. The accused further argued that the Criminal Procedure Code did not release
on bail a person allegedly accused of an offence the punishment of which went up to 15
years imprisonment. Since the Constitution was the supreme law of the land, he
continued, any provision of the law, which contravened with the Constitution was,
pursuant to the Constitution, of no effect.
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CHAPTER SIX
SUMMARY, CONCLUSION AND RECOMMENDATIONS
6.1 INTRODUCTION
It is a fact that there is already significant consensus on most of the international
standards of human rights through the very deliberate and settled process by which they
have been articulated and adopted over the years as well as the wide ratification of most
international human rights documents. The contention that, the protection and promotion
of one class of rights, while the other is denied, is against the concept of universal human
rights. Though it is argued that socio-economic rights are considered to be too general
and vague to be considered for immediate implementation, there are no human rights that
could not be considered to have at least some significant justiciable dimensions. In fact
human rights are indivisible and interdependent. Thus irrespective of the state’s
economic, political and cultural backgrounds and development, the protection and
promotion of all human rights should be advanced and emphasized.
6.2 SUMMARY OF KEY FINDINGS AND CONCLUSION
With regard to the record of Ghana in protecting, respecting and promoting the human
rights of criminal suspects and their right to bail, the situation is quite mixed. The 1992
Constitution offers a comprehensive agenda of human rights and incorporates all ratified
international human rights instruments as the law of the land. It also provides for
interpretation of domestic legislation to be in conformity with international human rights
94
standards. It is within this framework that the courts in Ghana have sought to implement
these human rights principles, irrespective of the fact that the lack of enforceability of
human rights and serious breaches of human rights at domestic levels has become a
matter of great concern to everyone. This shows that implementation of human rights
does not solely depend on constitutional or legislative provisions.
One of such roles is for the court to ensure that criminal suspects are also given all the
necessary considerations, and in particular as regards their right to bail. It involves the
balancing of the rights of the accused and the victims of crime with due cognizance being
taken of the perception of the society of the bail jurisprudence and the effectiveness of
the criminal justice system in addressing issues of criminality and crime prevention.
Implications of this study for good practice
A good bail system is not necessarily a system that has a low rate of remand in custody as
its criteria, but rather one that displays good and desirable characteristics, such as
follows:
First of all, a good practice in bail would ensure that there exist statements of principles,
objectives and criteria guiding decision-making. The rights of the defendant as a focus of
bail decision-making is little discussed by actors within the justice system, but rights
issues clearly underpin bail practice. It is one of the fundamentals of the criminal justice
system that a person is innocent until proven guilty. Its corollary is that a person cannot
be detained or imprisoned simply on the basis that they may commit a crime.
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Again, it is important that the management of bail/custodial remand decision-making is
structured so that at each phase of the remand process symbolic messages about these
principles are delivered.
Laws relating to bails should also contain explicit statements of the objectives of bail to
guide decision-makers. These should be separated from the criteria used for assessing
risk.
In an effective bail system, the criteria for assessing eligibility for bail should be clearly
articulated and distinguished from the objectives of custodial remand. Bail is essentially a
risk assessment exercise and, whilst the statement of objectives will indicate the
prioritisation of the risks the bail decision-maker is seeking to minimise, it is also
important to indicate what criteria are appropriately taken into account in making this risk
assessment. This statement of criteria will also allow a more effective review of custodial
remand decisions, providing a structure around which evidence can be tested.
Also, the roles of each bail decision-maker and their bail responsibilities must clearly be
defined.
A good practice in bail requires clearly defined roles of decision-makers. The decision to
grant bail or remand in custody has several unusual characteristics. The first is that the
bail decision is not a final order; it can be revoked and a defendant refused bail can
reapply for bail. Again, while the decision can be characterized as administrative, it is
clearly, at least in so far as Supreme Court decisions are concerned, a judicial act done in
the exercise of judicial power. This is a power exercised by police. More so, contrary to
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other judicial functions, bail applications have an ‘inquisitorial’ element. Bail authorities
may make inquiries, on oath (if in court) or otherwise, to ascertain relevant information.
Most studies indicate that police bail decision-making is influenced by the nature of the
offence with which the defendant is charged the stage of the investigation and the
powers needed to conduct further investigations the defendant’s record and in particular
the defendant’s history of attending court whilst on bail whether the defendant is seen as
likely to commit other crimes whilst on bail the defendant’s current bail status and in
particular whether the defendant has been detected in breach of bail conditions whether
the offence for which the defendant has been arrested is similar to that for which s/he is
on bail. It is better that many defendants are granted bail at some point in the time
between their arrest and the finalization of their case and are held in custody at other
points. This suggests that the bail decision-maker is able to be convinced that this
defendant can be granted bail under appropriate circumstances. Time is needed to ensure
that these decisions are appropriately considered and not rushed. Resourcing goes further
than simply decision-makers’ time.
A good bail system will provide the range of
possible supports to decision-makers in metropolitan and rural locations. It will provide
resources to enable the construction of realistic alternatives to custodial remand and to
allow decision-makers and others involved to assess the appropriateness of these
alternatives for any individual defendant.
Good practice in bail also involves minimising the length of time for which a person is on
bail or in custodial remand. Unnecessary time on bail or remand in custody increases the
97
risk of offending on bail, disruption to remandees’ lives, destruction of evidence, and
perceived injustice if the defendant is not found guilty.
Finally, the importance of the right to an effective remedy by competent national
tribunals for violations of human rights cannot be over-emphasized. However, judicial
remedy should not be taken as the sole remedy for violation of human rights. In certain
circumstances, administrative remedies, especially for violations of socio-economic
rights, might be more appropriate and adequate. Also, adequate measures should be taken
to make such remedies accessible, affordable, timely and effective.
6.3 RECOMMENDATIONS
The researcher is primarily of the view that Human Rights as a concept and the
fundamental principles guiding its practice the world over, is not and can never be the
only thresh-hold to the end of brutalities and violations of our identities as individual
persons or merely for the fact that we are human beings. This to a large extent is in view
of the fact that the beginning questions of who created them? who gives them? Who
enjoys them? Who should not interfere with them still remain debatable and cardinal
questions to be answered by us. However, the reason that it has almost achieved its aim
of wiping out the wanton disregard for the dignity of persons since its introduction and
promotion after the Second World War cannot be over-emphasized. It is in the light of
this, and the awareness that Human Rights is an evolving concept, demanding criticisms,
contributions and further growth and development that the researcher also seeks to add on
his views in order to contribute to a better society devoid of denials, abuses, restrictions
98
and the violations of the fundamental rights and freedoms of other human beings. The
other side of the coin is to also assist in drumming drum home the idea that these rights
must be safeguarded and promoted by governments, groups and individual persons.
First of all, the Government of Ghana should give effect to the rights recognized by the
Constitution, ratified international human rights standards and to the rest of other national
legislations. Appropriate means of redress or remedies must be available to any
individual whose human rights have been violated by legislation, acts of officials or
private actors. Means of ensuring accountability by the government and impartiality and
independence of the judiciary should also be developed. Otherwise, the unchecked power
of the government, and in this case the court, can be a major threat to the dignity of the
individual.
The Constitution of Ghana states that, any law, customary practice or decision, which
contravenes the Constitution, shall be of no effect. However, new laws need to fill in the
numerous gaps that are created because of this constitutional provision. In addition, many
contend that the restricted implementation of human rights is due to the general and
vague language used and the absence of a precise elaboration of the normative content of
each human right. It is recommended that the legislature takes steps to amend or enact
legislation to ensure that domestic legislation is fully compatible with the principles and
provisions of the Constitution and international human rights documents. The Executive
should further ensure that domestic law is applied in preference to political decisions and
customary practices, which may contradict human rights.
99
Nevertheless, identification and elaboration of areas of the law that require amendment or
enactment, necessitates in-depth survey and analysis. While the legislature should play
the major role in this area, NGOs, such as Centre for Human Rights Advocacy, could also
play an important role before and during the drafting of specific legislation and
amendment of unconstitutional provisions. Since NGOs have a broad knowledge on the
reality of human rights violations in the country and expertise in specific national issues
and international human rights standards, they should undertake research on specific
provisions that are inconsistent with constitutional and international human rights
principles, propose amendment and persistently lobby the law making body for the
protection, respect and promotion of human rights, which must include specific
provisions adequately addressing the loop-holes in the constitution and other old
legislations in our statutes. For instance, the major lapse arising out of the fact that the
courts do not sit on week-ends, thus denying innocent suspects on their rights to bail
could be rectified to include them, in order to ensure justice is done them.
Again, there is also the issue about a third party in our statutes which must also be looked
into. It is provided in the laws of Ghana that a third person must guarantee in the form of
a surety before an innocent person who has not been pronounced guilty by a court of
competent jurisdiction could be set free. This in effect, implies that a suspect could still
be detained or kept in custody to exceed the stipulated 48hr rule recognized in Ghana and
in line with international standard. This invariably denies suspects of their right to bail
and prevent them also from enjoy their fundamental rights of freedom as humans. This
100
provision must be scrapped. Alternatively, his place of abode, residence, working
environment or other means of location and tracking mechanism could be verified for the
individual to be allowed his freedom until further proven guilty by a court of competent
jurisdiction.
Further, the amount involved in the bail bond, often times is huge. This as a result, serves
as a hindrance, thus preventing some family members and other good-spirited Ghanaians
from assisting criminal suspects when it comes to facilitating their right to bail as a
matter of human right concern.
Again, the situation that the state does not have special institutions or structures readily in
place to ensure that, fairness and justice is done to arrested, detained or suspected
persons, whenever their right to bail have been denied or trampled upon also leaves much
to be desired. The Commission for Human rights and Administrative Justice (CHRAJ),
though has a semblance of an over-sight responsibility, the onus still remained on the
affected person under an arrest, or already in detention to launch a complain to them first.
The reason is, if an arrested person who happens to be a suspect, does not take the
necessary steps by themselves to ensure their personal release from detention or custody,
then the situation remains that they will continue to be there for who knows how long.
But how does this become possible for a person whose movement has been restricted?
Often times, it is the family members, friends or benevolent individuals who come to the
aid of victims to facilitate the process of their release. This is against the Universal
Declaration of Human Rights that member states should take steps (not the family or the
family) to ensure the rights of their citizens are protected and promoted at all times.
101
Next, for such kind of surveys and analysis to be successful, adequate and easily
accessible information is a prerequisite. The data collection and recording system of the
legal system needs to be reviewed and cases need to be adequately and properly
categorized as to facilitate research and in-depth analysis. Legal institutions, with
possible technical and financial assistance from NGOs, should also identify and record
details of any significant jurisprudence from domestic courts that make use of and
reference to provisions of human rights standards.
Further, it is also very important that the society is aware what human rights are
recognized by the Constitution and the international human rights standards Ghana has
ratified. NGOs and other Civil society groups could also play an important role by
providing to the public human rights education in its broadest sense, to develop a culture
of human rights by raising the awareness of people, especially crime suspects of their
rights because it is only when someone knows her/his rights that s/he strives to exercise
her/his rights, respect other people’s rights and seek remedy for the violation of her/his
human rights.
Finally, all administrative and judicial authorities should also be aware of the obligations
that Ghana has assumed in its Constitution and the international instruments it has
adopted and ratified. The relevant authorities should also be trained and familiarized with
the content of these instruments to enable them ensure that the State’s conduct is in
conformity with human rights standards. They should further be aware that neglect of
102
State’s responsibility to protect, respect and promote human rights is inconsistent with
the international obligation of Ghana and the principle of the rule of law. This will
facilitate the legitimization process of human rights standards set down by the
international human rights law and constitutional and legislative provisions in the
country.
6.4 LIMITATIONS TO THE STUDY
The research was undertaken over a period of six months. Therefore, due to limitation of
time and resources, the research could not have been undertaken over a longer period of
time as to allow a thorough identification of court cases and an in-depth analysis, which
might have enabled the development of a body of human rights jurisprudence in Ghana.
The scope of the Research is also general and broad, thus it was not possible to identify
and elaborate on each and every legislation and provisions that are inconsistent with
constitutional and international human rights principles and proposed recommendations.
However, illustrative indications were made, though not exhaustive, to areas of the law
that required in-depth analysis and revision pursuant to international and national human
rights standards. The other challenge faced during the undertaking of the research is the
record keeping of court cases of the legal system. The absence of a systematized
information collection and classification of cases by the legal system hindered the
identification of court cases for case study. The collection of cases had thus to mainly
rely on the memory and discretion of judges and record keepers. This made the process of
identification and selection of relevant court cases time consuming.
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6.5 SUGGESTIONS FOR FURTHER STUDIES
This work may serve as the basis for further criminal suspects and bail studies concerning
questions on human rights issues. The decisions made by judges on the subject would aid
in having a general understanding of what goes on in the courts in Ghana.
Further information on the right to bail can be expected from the direct study of criminal
suspects; and the use of interviews or questionnaires should be included in such a study.
The systematic study of the entire procedure from arrest, detention through to the
application to court and subsequently to the grant of bail, will offer the opportunity for
expanding our knowledge on the subject of bail as regards criminal suspects and their
right to bail.
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APPENDICES
APPENDIX 1
REPORTED COURT CASES USED
(i) The Ten (10) Cases Selected From The Ghana Law Reports For The Case Study.
1. ABIAM v. THE REPUBLIC [1976] 1 G.L.R. 270
2. BAIDEN V. THE REPUBLIC [1972] 2 G.L.R. 174
3. BOATENG v. REPUBLIC [1976] 2 G.L.R. 444
4. DASWANI v COP [1964] GLR 54:
5. DOGBE v. THE REPUBLIC [1976] 2 G.L.R. 82
6. FYNN & ANOR. V. THE REPUBLIC [1971] 2 G.L.R 433
7. GORMAN v. REPUBLIC (2003 – 2004) 2 SCGLR 784
8. OKOE v. THE REPUBLIC [1976] 1 G.L.R. 80
9. PRAH & ORS. V. THE REPUBLIC [1976] 2 G.L.R 278
10. REPUBLIC v. ARTHUR [1982 – 83] G.L.R. 249
(ii) The Foreign Cases Cited In Support Of the Case Study.
1. STATE V. PROFESSOR MESFIN W/MARIAM AND DR. BERHANU NEGA
2. R V OAKES
3. STATE V. LEGESSE GETACHEW
4. STATE V. AMARE TADESSE
5. STATE V. TELEK SEW BEKELE
6. STATE V. MEKWANENET FEKADU
7. SMITH V ATTORNEY GENERAL
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APENDIX 2
HUMAN RIGHTS PROVISIONS USED
(i) International Human Rights Provisions
1. Universal Declaration of Human Rights (1945)
2. International Covenant on Civil and Political Rights (1966)
3. International Covenant on Economic, Social and Cultural Rights (1966
8. The African Charter on Human and Peoples Rights, 1981.
9. The United Nations Charter, 1945
(ii) National Legal Documents Cited
1. The Constitution of the Republic of Ghana (7th January, 1992) Ghana.
2. The Criminal Code (1960), Act 29
3.
Criminal Procedure Code of Ghana (1960), Act 30
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