Confronting the Horrors Within: A Trilogy of Compelling Human Rights Violations in
Ghana's Criminal Justice System -- Police Killing of Robbery Suspects, Judicial Abuse of
Bail, and Prison Conditions
By
Prof. Kenneth Agyeman Attafuah1
Barrister-at-Law & Managing Solicitor
Ken Attafuah LawPlace
2nd Floor, Kama Conference Centre, Labone Accra
profken.attafuah@gmail.com
9th September 2013
___________________________________________________________________________
Abstract
This article highlights three critical issues affecting the administration of criminal justice in
Ghana: police killing of robbery suspects, judicial abuse of bail, and the immemorial poverty
of prisons conditions. The paper argues that Ghanaian society, perhaps led by the Ghana Bar
Association, needs to increase its commitment to balancing the need for security against the
obligation to broaden and manifest respect for human rights and civil liberties by the police
officers, trial judges and correctional officers who operate the nation's criminal justice
system. Though oft-denied by the Police Administration, the growing phenomenon of police
killing of robbery suspects appears to be a practice underpinned by a "shoot-to-kill policy".
Though rarely discussed openly, many criminal defence lawyers are quietly horrified by the
abusive use to which some judges and magistrates put the facility of bail. Though progress
has been chalked in instigating penal reforms in the country, the gulf between the rhetoric of
change and the debilitating reality of acute prison congestion and other deprivations is wide
and horrifying.
The object of this article is to enhance awareness of these compelling human rights issues
with a view to triggering appropriate interventions to (a) contain and reduce police excesses
in dealing with violent crime, (b) reduce judicial abuse of the facility of bail, (c) and improve
conditions in Ghana's prisons in line with Ghana's domestic and international human rights
obligations.
1
Prof. Ken Agyeman Attafuah is a former Commissioner for Human Rights in British Columbia, Canada,
where he adjudicated human rights complaints. He also previously served as an Adjudicator with the Canadian
Immigration and Refugee Board, determining claims of refugee applicants to convention refugee status in
Canada. A Lawyer and Criminologist by training, Ken Attafuah has worked as:
 Executive Secretary of the National Reconciliation Commission
 Executive Secretary of the National Identification Authority
 Director of Anti-Corruption, CHRAJ
 Chief Investigator and Director of Operation, CHRAJ
 Associate Professor of Governance and Leadership at GIMPA
 International Management Consultant to the United Nations Mission in Liberia (UNMIL)
 UN's International Technical Advisor to the Truth and Reconciliation Commission of Liberia
A product of the Ghana School of Law, Ken Attafuah holds a Ph.D. in Criminology from the prestigious school
of Criminology at Simon Fraser University in British Columbia, Canada. He is currently the Managing Solicitor
of Ken Attafuah LawPlace, an Accra-based law firm, and the Founding Director of William Ofori-Atta Institute
of Integrity at Central University College, Accra.
1
Introduction: The Criminal Justice System and the Protection of Human Rights
The Ghanaian criminal justice system comprises the police, courts and corrections. The three
institutions respectively play the traditional roles of law enforcement; the dispensation of
justice through the interpretation of the law, determination of legal disputes and imposition of
criminal sanctions; and the detention, custodial care and reformation of convicts. The legal
profession, supported primarily by the social sciences, lies at the heart of the criminal justice.
The Legal Aid and Social Work professions also play a critical and dynamic role in the
administration of criminal justice in the country.
By virtue of Article 125 of the Constitution of the Fourth Republic of Ghana (1992), the
protection of human rights is one of the foremost duties of the courts in Ghana. The
independence of the judiciary is guaranteed under Articles 125(3) and 127 of the
Constitution. In practice, most judges function independently of the Executive, and judicial
decisions are not ordinarily affected by improper considerations, or by the interests of the
Executive, Parliament or any other person or authority. The Commission on Human Rights
and Administrative Justice (CHRAJ) is the principal constitutional body for the promotion of
human rights, fairness in public administration, and integrity in public management in
Ghana2.
Nature of Human Rights and the Domestic Legal Regime for their Protection
The fundamental human rights and freedoms of persons in Ghana are enshrined in the
Constitution and are firmly protected. Human rights refer to those basic entitlements, claims
or conditions which protect the ability as human beings to satisfy their basic needs in dignity
in respect; they are universal legal guarantees protecting individuals and groups against
actions which interfere with their fundamental freedoms and human dignity.
Human rights principles find copious expression in the Fourth Republican Constitution of
Ghana (1992). Fundamental human rights and freedoms constitute the focus of Chapter Five
of the Constitution, by far the longest chapter in the entire document. The Constitution
guarantees the fundamental human rights and freedoms of all persons in Ghana, regardless of
race, place of origin, political opinion, colour, religion, creed or gender, as enshrined in
Article 12(2). Discrimination is also prohibited in Article 17, which also guarantees the
equality of all persons before the law. Among the grounds of prohibited discrimination are
gender, race, colour, ethnic origin, religion, political opinions, religion, occupation, creed or
social or economic status. The enjoyment of human rights is subject to respect for the rights
of others and the public interest.
Under Article 13, a person cannot 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. Article 14 guarantees the personal liberty of every
person subject to the exceptions enumerated therein.
Article 15(1) guarantees the dignity of the human being in these words: "(1) The dignity of
all persons shall be inviolable". Accordingly, torture or other cruel, inhuman or degrading
treatment or punishment is prohibited in Ghana. Equally important, the Constitution also
prohibits any other condition that detracts or is likely to detract from the dignity and worth of
2
See Chapter 18 of the Constitution of Ghana (1992)
2
the individual as a human being. By virtue of Article 126(2), "all customary practices which
dehumanise or are injurious to the physical and mental well-being of a person are prohibited".
Thus, adequate provisions exist in the Constitution to protect the rights of all persons in
Ghana, including prisoners.
International Commitments
In addition to the foregoing constitutional provisions, Ghana is committed to respecting
similar provisions in international legal instruments affecting the rights of prisoners. Of
cardinal relevance here is Article 15 of the African Charter on Human on Human and
People's Rights3. It provides as follows:
"Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade, torture,
cruel, inhuman or degrading punishment and treatment shall be prohibited"
Other relevant UN instruments impinging on the rights of prisoners, and on which officials of
the Ghana Prisons Service have been trained, include:
1. Standard Minimum Rules for the Treatment of Prisoners;
2. Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment;
3. Basic Principles for the Treatment of Prisoners;
4. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines);
5. International Convention on the Elimination of All Forms of Racial Discrimination;
6. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment;
7. Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
8. Convention on the Elimination of All Forms of Discrimination Against Women;
9. United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules); and
10. United Nations Rules for the Protection of Juveniles Deprived of their Liberty
In its 2008 Report to the United Nations Universal Periodic Review Ghana stated as follows:
"Ghana is committed to the protection and promotion of fundamental human rights
and freedoms. Ghana takes its international obligations seriously and supports the
development of international human rights.”
3
Adopted in Nairobi, Kenya, on June 27, 1981; entered into force on October 21, 1986.
3
Ghana has made significant strides in the promotion and protection of human rights. In
particular, under the Fourth Republic, the work of the Parliament, Judiciary, the Commission
on Human Rights and Administrative Justice (CHRAJ) and civil society organizations such
as the Ghana Bar Association, Amnesty International, FIDA Ghana, Human Rights Advocacy
Centre, Justice and Human Rights Institute, Child Rights International, Action Aid Ghana,
among others, is important in this regard.
Even so, significant deficits remain on the Ghanaian human rights landscape. For members of
the legal profession, the frequency and alacrity with which police officers kill alleged armed
robbers in what seems like a "shoot-to-kill policy", the frequency with which some judges
and magistrates abuse the rights of accused persons in the determination of bail applications,
and the horrible conditions prevailing in the nation's prisons and police cells must be a matter
of grave concern. And it is the responsibility of the legal profession, led by the Ghana Bar
Association (GBA), to lead the exploration for solutions.
1. HUNTING HUMANS? POLICE KILLING OF ROBBERY SUSPECTS
Commencing approximately in July 2009, there has been a steady use of deadly force by the
Ghana Police Service in the performance of its law enforcement role, particularly with
respect to the detection of robbery and the apprehension of suspected armed robbers.
Understandably, Police encounters with armed robbers are perennially dangerous events that
always portend violence and even death. Yet, an apparent shoot-to-kill policy, or a practice
that mimics it, must not be countenanced in a liberal democratic society. A brutal police is
not always a product of a brutal society; the converse is often true: a brutal police can foster,
as an unanticipated consequence, an armed, brutal and desensitized society.
Trends in police killing of civilians in the name of fighting armed robbery show a worrying
pattern of growth. The trend in 2013 in particular suggests a remarkable increase in the
phenomenon over previous years, to the extent that some critical observers have openly
admonished the Police to end its "shoot-to-kill" policy.4 Despite denials by the police, the
view appears to gain considerable currency.
Catalogue of Police killings
The following catalogue of killing by the Police in 2013 alone is illustrative5:
14th January: Two (2) of three suspected robbers said to have been terrorizing
residents of Adankwame and Akropong, in the Atwima-Nwabiagya District, were shot
dead when they attempted to escape. The third died in the early hours of the next day
in fire exchange with the police.
27th February: Officers of the Greater Accra Regional Police Command shot three
suspected armed robbers near Ashaley-Botwe. The robbers died en route to the
hospital.
4
"Police must end shoot-to-kill strategy" - MP. www.citifmonline.com/?id=1.1516560
5
I am grateful to Francisca Kakra Forson of Joy Fm for assistance with this research.
4
24th June: Tema Police killed one armed robber in a shootout in the night after a
gang of four snatched a car from its owner. The police said the robbers opened fire at
them upon arrival and the police also returned the fire, resulting in the death of one
robber.
27th June: Police in the Ashanti Region shot and killed a suspected armed robber in a
shootout after a gang of four armed robbers undertook a robbery operation at a
filling station at Ejisu-Krapa, near Kumasi.
30th July: Kumasi Police killed one suspected armed robber in a shoot-out after a
gang of four robbed a branch of the Juaben Rural Bank at Fumesua in the Ashanti
region in broad daylight.
1st August: Police in Kumasi shot dead three suspected armed robbers in two
separate incidents, hours after one other was killed in a bank robbery at Fumesua
23rd August: A man suspected to be an armed robber was shot dead at Atico junction
near Odokor in Accra. Eyewitnesses said he was part of an armed gang which
attempted to snatch an unregistered car from its owner.
20th August: A 49-year-old man, Samuel Asabour, was allegedly shot and killed by a
police patrol team in broad daylight at Ashaiman. Whilst driving to Tema, a police
patrol team gave him a chase, suspecting him of driving a snatched car. The KIA
Price driven by Asabour skidded off the road and landed in a ditch. An eye-witness
said a red-eyed police man jumped out of a pick-up shouting "armed robber, armed
robber" and, despite being told by another policeman not to shoot, opened fire on the
defenceless KIA driver who begged for his life.
2nd September: Two Police officers lost their lives at Gomoa Pomadze, near Winneba,
on Monday September 2 when they were shot by a police patrol team responding to a
distress call. The two officers were driving to the hospital after one of them was
injured by the robbers, but the patrol team inadvertently took 'them for the escaping
robbers, pursued them and fired at them, leading to the death of the two policemen', a
statement from the police explained.
With the exception of the last two incidents, all these killings by the police enjoyed broad
public support. The fear of violent crime ensured the public remained unconcerned about the
apparent alacrity with which the police killed "armed robbers". The public hails the police for
the killings whenever the half-naked, bullet ridden bodies of the shooting victims are
displayed. Often, the public forgets that those who bear the deadly force of the state as trained
police officers, have a greater burden of circumspection, discipline and self-control.
It is easy to present dead bodies of young, able-bodied men shot by the police as armed
robbers. Because "dead men don't talk", it is also pretty easy for the official, pro forma
narrative of the police to be the only account of the events leading to the killings: the
miscreants opened fire on the police first, and the police shot back in self-defense!
The last two shootings in the catalogue resulting in three avoidable deaths represent the
highpoint in avoidable killings by the police. The sad events highlight the need for the Police
Administration to re-tool their operational social-psychology and entire training regime,
5
especially as they relate to the safe, efficient, economical and lawful means for engaging with
armed robbers. This is essential if "collateral damage" of the kind typified by the Winneba
shooting tragedy is to be avoided; it is also essential to preventing a repetition of the Taifa
phenomenon - a situation in which police personnel and [neighbourhood] watch-dog
members mistakenly fire at cross-purposes while responding to the same criminal event"6 as
happened tragically in Taifa, Accra, in the night of 13th June 2002.
The fight against armed robbery must be pursued within the framework of ardent
commitment to law and order. Extra-legal measures such as shoot-to-kill and lynching of
suspected armed robbers are antithetical to the liberal democratic ethos of Ghanaian society.
In short, policing armed robbery must conform to law. Police conduct in combating armed
robbery must be constantly subordinated to the established legal regime. Police actions must
be guided by the time-tested policing principles of legality, necessity, proportionality, and
accountability. The principle of legality requires all policing methods that interfere with
fundamental human rights (civil liberties) of the individual to have a clear basis in law, while
the principle of necessity requires the police to use only such force as is reasonably necessary
to effect the arrest of suspects resisting arrest, or to control those behaving violently or
belligerently under custody; it requires that police and other investigative bodies take only
such measures as are strictly necessary to achieve a required objective. Thus, particularly
intrusive and other abusive methods of interrogation are non-options.
The principle of proportionality is an adjunct to the principle of necessity; it demands that
police responses be proper in all the circumstances and proportional to the violence or
resistance offered by a crime suspect. In the words of Lord Diplock, we “don’t use a
sledgehammer to crack a nut”. In a democratic society governed by the rule of law, police
officers are not entitled to molest or “deal drastically with” crime suspects. An officer may
only shoot to disable, and thereby stop, a crime suspect, not kill him, unless the officer is
reasonably convinced that his life or that of another person is in danger.
Finally, the principle of accountability demands that police officers account for all
ammunition they expend in enforcing law and order. Where death results from shooting by an
officer, a service inquiry is required pursuant to Section 97 of the Police Service Instruction.
The officer concerned must account to a superior officer or an independent oversight body for
the circumstances leading to the fatality.
The role of the police is to maintain law and order under the law, not above the law. Law
enforcement is not a license to behave anyhow “as long as criminals are nabbed”. Police use
of unlawful lethal force against unarmed civilians is a major factor contributing to public loss
of confidence in the police.
The principles of legality, necessity, proportionality, and accountability which must
ordinarily guide the police means nothing to many police officers in their daily role
performance. Policing methods that interfere with fundamental human rights and civil
liberties must always have a clear basis in law. The use force far in excess of that which is
reasonably necessary to achieve a lawful police purpose such as effecting the arrest of
6
See Attafuah, Ken Agyeman (2008) Fighting Armed Robbery in Ghana, Justice & Human Rights Institute,
Accra
6
suspects resisting arrest, or controlling suspects behaving violently or belligerently under
custody.
The illegal and improper use of lethal force in Ghana continues largely because Ghanaians
are not offended and inspired to constructive protests by such conduct in a sustained manner.
Many Ghanaians see nothing wrong with newspaper reports of arrested crime suspects
sporting bodily bruises and swollen faces. Although particularly intrusive and other abusive
methods of interrogation are officially proscribed, they are routinely employed by many
police officers. Police response to misconduct by suspects, such as threat of harm and
resistance of arrest, is nearly always disproportional to the impugned conduct.
Regrettably, when every Inspector-General of Police assures the nation that the police will
“deal drastically with the criminals and miscreants in the society”, police personnel take it as
a license to respond violently or with brutal force to criminals, which term often denotes
violent criminals. Police officers beat up suspects on the streets and in custody. In addition,
the police sometimes turn a blind eye to public lynching of suspected criminals, especially
armed robbers7; occasionally, the police participate in such brutal activities which they claim
boost their "morale".
Toward Solutions
1. Paradigm Shift in Training Regime
There is an urgent need for the Police Administration to institute a major paradigm shift in
the entire police training regime. Consider the following:
a. How many police officers on night patrol duty can respond professionally to safely
rescue a family taken hostage by half a half-a-dozen heavily armed robbers, without
firing a shot? How differently will two teams of patrol duty officers respond to such a
scenario? How will the officers gain penetration into the building, if that is deemed
necessary? How many patrol team leaders on duty this minute can "talk" irate bank
robbers into surrendering themselves?
b. In the heat of a robbery attack, how many police officers can resist the urge to shoot a
fleeing armed robber above the waist after one of the robbers has gunned down a
police officer?
c. How many police officers possess a solid grasp of forms, levels and techniques of
resistance, as well as the types of physical control measures that can be used to
disable or dispel resistance in "tight encounters" with motivated offenders?
d. How many officers can employ effective communication and conflict resolution skills
to calm down an angry mob ready to lynch an armed robber caught defiling a little
girl during a robbery operation?
The scenarios and challenges abound, and so are the possibilities.
Police training must emphasize the different types of force that may be employed in
combating violent crime, as well as the contexts and circumstances for their mobilization and
7
See Attafuah, Ken A. (2008) ibid.
7
use. Such training must take account of armed force8, lethal force9, justifiable force10, and the
cardinal principles which must inform the application of each type to crime suspects.
Needless to say, every force used by a police officer must be justifiable. Justifiable force
connotes "the control actions of the officer that are reasonable, necessary and proportional
to the subject's level of resistance and the legitimate law enforcement needed to control the
subject's actions."11
Police officers must be trained or retrained to appreciate that the amount of force employed in
any confrontation with criminals must be proportional to the opposing force encountered.
proportional force in this sense refers to "the amount of force which is reasonable in intensity,
duration and magnitude, based on all facts known to the commander at the time, to decisively
counter the hostile act or hostile intent".
In their crime combat operations police personnel must, at minimum, learn, accept, cherish
and apply the universally-acknowledged and time-tested policing protocols and guideline on
the use of force:









Force is to be used only when strictly necessary.
Force is to be used for only legal law enforcement purposes.
No exceptions or excuses shall be allowed for unlawful use of force.
Use of force is to be always proportional to lawful objectives.
Restraint is to be exercised in the use of force.
Damage and injury are to be minimized.
Indiscriminate pointing of weapons in the direction of any person is prohibited.
Police officers will not fire shots at moving vehicles while in a pursuit situation.
Police officers will not fire at a moving vehicle unless the vehicle is being used as a
weapon to harm the police officer, or other persons, or unless it is necessary to
prevent serious injury or death from weapons being fired from the moving vehicle at
the police officers or others.12
2. Establishment of Independent Police Complaints Commission
An important mechanism for ensuring police accountability generally, and controlling
ammunition use and resultant deaths in particular, is to provide an independent statutory
platform for assessing the legality, necessity, reasonableness and proportionality of contested
8
Armed force refers to the use of offensive weapons, including lethal and non-lethal weapons.
9
By lethal force is meant the "level of force which is intended, or likely to cause death or grievous bodily harm
regardless of whether death or grievous bodily harm actually results. This is the ultimate degree of force". See
United Nations Police Service Training Academy Lesson # DT 101 Use of Force and Liberian National Police
(LNP) Policy, p. 3.
10
Justifiable force connotes "the control actions of the officer that are reasonable, necessary and proportional
to the subject's level of resistance and the legitimate law enforcement needed to control the subject's actions."
ibid. op cit.
12
8
or impugned police conduct. I have advocated for the establishment of an independent Police
Complaints Commission since 1998. Despite the acknowledged competence and
professionalism of staff of the Police Intelligence and Professional Standards (PIPS), public
confidence deficits remain.
On the strength of the performance of the PIPS to date, the public has no reasonable basis for
believing that PIPS will do an honest job devoid of cover-up when the police investigates the
police for alleged illegal killings by the police. Police culture and occupational environment
generate collective emphasis on secrecy, an attempt to coerce respect from the public, and a
legitimation of almost any means to accomplish an important arrest.
In everyday activities of the average Ghanaian police, these values take precedence over legal
responsibilities. Thus, in certain areas of police work such as the apprehension of an armed
felon or the handling of a sex offender, the police justify excessive physical force as good,
proper and useful. Beating of violent crime suspects at the point of arrest is common, and
suspects who render the arrest process a daunting experience for the police through resistance
are automatically subjected to severe beatings, frequently denied access to food and medical
care for extended periods, and otherwise "punished". These and other methods of torture are
routinely used to extract "confessions" and to secure compliance with "rules".
In any event, the investigation of the police by the Police is non-starter in a liberal democratic
society. Although CHRAJ is an important constitutional body for the investigation of human
rights and administrative justice violations, its overly broad multiple mandate, which includes
the investigation of "all instances of alleged and suspected corruption", makes it supremely
unsuitable for the task of thoroughly investigating the myriad complaints against the Police.
Conclusion
Human rights and security are intertwined. Individual rights and national security are not
mutually exclusive. It is important, and indeed possible, to maintain security without
violating human rights. Fair trial procedures must be respected by all citizens. Police
response to violent crime must be proportionate and grounded in due process the rule of law.
Abandonment of human rights and fair trial procedures in the fight against the terrorism of
armed robbery would constitute a complete surrender to nihilism; it is not an option. Police
officers can be trained to approach the science of policing armed robbery from wholly new
and different perspectives.13
An oversight role for an independent police complaints commission which will investigate
complaints and allegations of killings, brutalities and other violations and abuses of human
rights and civil liberties will contribute greatly to building a more professional Police and
reducing the incidence of police excesses, including the "accidental" killings of police and
civilians alike.
2. JUDICIAL ABUSE OF BAIL
By "judicial abuse of bail" I refer to instances where judges and magistrates unjustifiably
deny bail to crime suspects as a result of inadequate appreciation of the relevant law,
13
Fortunately, the Inspector General of Police, Mr. Mohammed Alhassan, has promised to introduce changes to
entire police training regime.
9
improper considerations such as personal prejudice, bias, animus or other conduct tending to
give credence to the suspicion that the judge has been improperly influenced to deny bail.
In Republic v. Gorman & 5 Ors, Modibo Ocran JSC underscored the essence of bail in these
words:
"... [t]he issue of bail primarily addresses the freedom, or lack thereof, of the accused
'to walk 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."
Bail decision-making in Ghana is the sight of routine and considerable abuse of judicial
power and violation of the human rights of persons in conflict with the criminal law.
Difficulties surrounding bail decisions highlight the inherent tension between human rights
and security.
In this section of the paper, I identify and illustrate common forms of judicial abuse of bail
frequently resulting in unjustified violations of the human rights of accused persons, or
reflecting judicial bias or corruption. The object is to ginger an in-house conversation about
the need to confront the horrors of human rights violations perpetrated by judges through the
instrumentality of improper judicial denial of bail.
Legal Principles Governing the Grant or Refusal of Bail in Ghana
It is trite learning that bail is a discretionary decision by a court. Discretionary power must be
exercised fairly and objectively, and decisions based on discretion must be purposeful and
lawful. The exercise of discretionary power by judicial authorities, as by all public officials,
is regulated by Article 296(a) and (b) of the Constitution of Ghana (1992) which respectively
provides that "discretionary power shall be deemed to imply a duty to be fair and candid" and
that "the exercise of the discretionary power shall not be arbitrary, capricious or biased
whether by resentment, prejudice or personal dislike and shall be in accordance with due
process of law ..."In short, it is mandatory a requirement imposed on judges to be fair and
honest in their decisions regarding bail.
In exercising their discretion to grant or decline bail, judges have a duty to balance the
individual right to liberty against the societal right to security from criminals. Judges
confronted with bail applications must weigh such factors as the nature of the offence, the
severity of the prescribed sanction, the accused person's likelihood of appearing to stand trial,
and "the overall circumstances of the particular case and of the accused person" (Yeboah,
2012:141)14
The legal principles governing the grant of bail were most eruditely enunciated by the
Supreme Court in the case of The validity of this position on bail was articulated by the
Supreme Court of Ghana in Gorman and Others v. The Republic (2003-2004) SCGLR @ 784
where the court held, per curiam, that,
“… Section 96 of the Criminal Procedure Code provides for judicial discretion in the
matter of bail, but should always be read in light of the constitutional presumption of
grant of bail as well as the direct constitutional duty to grant bail. This section
14
Yeboah, Anthony Kwadwo J (2012) Rights in Action: Trends, Challenges & Lessons, Oxford Print centre,
Oxford
10
embodies both a positive right and negative duty for the courts. In the exercise of their
judicial discretion as constitutionally circumscribed, courts are accorded under section
96(1) the general right to grant bail as long as the accused person is prepared to give
bail or enter into a bond.”
Thus, courts have a general right to grant bail as well as a duty to refuse bail in certain
circumstances. A court is entitled to grant bail to a person charged with any offence who is
not tried “within a reasonable time”. As Justice Brobbey points out, such was “the view taken
by the court in Dogbe v. The Republic [1976] 2 GLR @ 82 which relied on a provision in the
1969 Constitution similar to the present provision.
The following constitutes other important fundamentals of Ghana's judicial policy on bail:
(1)
(2)
(3)
(4)
An accused person is presumed to be innocent until proven guilty
An accused person is not entitled to an automatic grant of bail;
Bail is discretionary power, the exercise of which is regulated by law.
Bail is a legal instrument for ensuring the attendance of an accused person for trial
and the protection of the administration of criminal justice and public safety.
(5) The court has jurisdiction to grant bail even where a person is charged with any of the
so-called non-bailable offences (treason, subversion, murder, robbery, hijacking,
piracy, rape, defilement, human trafficking, narcotics, escape from lawful custody)
(6) An accused persons is entitled to bail regardless of the nature of the offence or the
severity of the prescribed punishment;
(7) By virtue of Articles 14(1), 14(3) and 19(2)c) of the Constitution, 1992, an accused
person must be granted bail if he is not brought before a court within 48 hours after
arrest or detention;
(8) Bail may be denied only when it is necessary to promote the proper functioning of the
bail system;
(9) Denial of bail is constriction of liberty and should be the exception, not the norm;
(10)
Extraneous considerations or purposes should not affect bail decision-making;
(11)
Bail should never a means to punish an accused person; and
(12)
In granting bail, the court must be satisfied that the accused will:
i. attend court
ii. not interfere with investigations or any aspect of the administration of
justice;
iii. not pose a danger to public safety.
Regrettably, these principles are not always respected by some judges and magistrates.
Empirical Evidence of Bail Abuse
Judicial abuse of bail is a frequent occurrence in Ghana, and the denial of bail is often a
punitive tool by some errant judges and magistrates. In her article, "Bail: A Right or a
Privilege?", Ruth Guribie, a Project Assistant at the Access to Justice Programme of the
Africa Office of the Commonwealth Human Rights Initiative (CHRI)15, notes that following
its monitoring and examination cases that went to specific courts in Ghana between
September 2011 and April 2013, the CHRI "realised that the abuse of the arrested person's
right to bail is so prevalent in Ghana".
15
See Daily Graphic, Monday August 19, 2013, p. 7.
11
In addition to reliance on the secondary research source from the CHRI, the empirical
foundation of this segment of the paper is the lived experiences shared with me by several
colleague legal practitioners, as well as my own experience at the bar. The ethnographic
accounts used here are credible, reliable and issue from proper custody. Naturally, the
accounts and conclusions apply to some magistrates and judges only.
I have taken journalistic licence or liberty in not disclosing the sources of information used,
and have not included particulars that may serve to identify the courts responsible for the
impugned conduct. The object is to protect the identity of the several lawyers who shared
with me anecdotal information about the conduct of judges and magistrate which the lawyers
consider to be instances of judicial abuse of bail.
Forms of Bail Abuse
A. Denial of Bail on Account of Bribery or Other Improper Influence
While the majority of judicial decisions respecting bail is made on sound legal or juridical
considerations, many lawyers believe that some instances of bail refusal is motivated by, or
predicated on, a judge's desire to induce the relatives, friends and supporters of an accused
person to "see the judge". The following anecdotal accounts from colleague lawyers are
illustrative:
1. High Court, Sunyani
Three persons - a husband, wife and another - were standing trial at the High Court,
Sunyani, for murder. There was no evidence against two of the accused persons - the
wife and the other person. According to the Bill of Indictment, the 1st Accused person
(A1) had hit the victim on the head with an object. The autopsy report indicated that
the victim died from "head injury". There was no allegation of conspiracy. All efforts
to secure bail for the other two persons failed. The court could have, acquitted and
discharged the two suo moto.
At the close of the Prosecution's case, no evidence had been led against the two.
Counsel then made a submission of "No Case" on behalf of two. The judge kept
adjourning the case while the accused remained in custody. It took the judge more
than six (6) months to acquit and discharge the two persons who ended up spending
over three solid years in prison custody. After her release from custody, the wife
failed to say 'thank you' to the lawyer who thought his persistence and industry had
yielded the woman her liberty. When he enquired from her incarcerated husband, the
lawyer learnt to his horror his clients did not credit him for her freedom because they
had paid a huge bribe to the judge, and believed his legal work, including the
submission of "no case", was of no consequence; it was the judge, instead, who had
been merciful after taking a bribe!
2. Circuit Court, Accra
The judge denied counsel's application for bail in a case of narcotic drug possession.
A week later, the client's mother informed counsel by phone that she had "gone to see
the judge and taken care of everything", and that the judge had assured her that he
would grant bail to her son at the next adjourned date provided she engaged the
services of another, preferably junior, lawyer because the current lawyer was "too
high profile". The incredulous and confounded counsel arranged with a junior
12
colleague to repeat the application at the sitting, using the same points. Bail was
promptly granted before he was done with his application.
3. Circuit Court, Accra
Counsel moved an application for bail in a case of conspiracy to forge and forgery.
The accused person had a fixed place of abode within the jurisdiction and police had
concluded their investigation well over a year before the case came to court. The
judge declined the application and told counsel to repeat the application at the next
sitting of the court. Indeed on that next sitting day the judge granted bail, without any
new development.
4. Circuit Court, Tema
Counsel's bail application for accused persons charged for robbery was declined. This
was in spite of the fact that the accused had pleaded not guilty and the prosecution
was not forthcoming in commencing prosecution. Counsel applied for bail a number
of times and was unsuccessful. It took over 8 months before the prosecution
commenced. When the trial commenced, the prosecution’s case collapsed with their
first witness. Then the judge granted bail. The prosecution abated naturally thereafter.
5. Circuit Court, Kumasi
Without giving reasons, a circuit court judge declined counsel's application for bail
for four persons accused of stealing. After the close of proceedings, the complainant
was heard openly bragging at the premises of the court that he had "bribed the judge
heavily", and that the accused persons "are not [his] match in litigation".
6. Circuit Court, Accra
An Accra Circuit Court refused, without reasons, to grant bail to an accused person
charged with causing fear and panic. The High Court (Human Rights Division)
subsequently granted counsel's application for bail.
B. Setting of Harsh and Excessive Bail Conditions
Contrary to the express provisions of the law, some judges set harsh and excessive bail
conditions. The inability of the accused to meet the bail terms then provide the justification
for their continued incarceration. In some instances, judges decline counsel's application to
vary the conditions, without adducing any good reasons,
According to the CHRI, "research into bail for non-felony defendants indicate that some
judges invariably set bail in the most financially onerous forms -- cash or secured bonds.
They also set bail at a level the defendant cannot afford"16.
CHRI also notes that in 70% of non-felony bail cases the defendants could not meet the
financial component of the bail conditions, which ranged between GH¢1,000 and
GH¢2,000.00. The report also that:
"[a]lmost nine out of 10 non-felony defendants who have bail set above GH¢200.00
were unable to post it at arraignment. Too poor to "buy" their pretrial freedom, they
spend an average of two weeks behind bars, accused of low level offences such as
breach of peace, getting into a fight or stealing"
16
ibid. op. cit.
13
Case Study
The complainant in a stealing case is an extremely rich Ghanaian and a friend of the
High Court judge. It is an open secret that he had been gifting building materials to
the judge to assist the latter in his construction of a commercial building project.
Indeed, the accused person, who was an employee of the complainant, used to send
money and cart gifts of building materials to the judge on behalf of his former boss.
The accused was charged for stealing GH¢44,000,000.00 (forty-four million Ghana
cedis). The judge set bail at GH¢50,000,000.00 (fifty million Ghana cedis) to be
justified. As the accused could not meet the bail conditions, he remained in prison
custody. The judge refused to remove himself from the case.
After the complainant had testified and made no case against the accused, the
Prosecutor amended the Charge Sheet, with leave of the Court, to reduce the amount
allegedly stolen to GH¢400,000.00 (four hundred thousand Ghana cedis).
Notwithstanding this colossal drop, the judge refused counsel's application for a
variation of the bail conditions. More than six months later, the accused remains in
jail. Counsel plans to appeal the ruling.
C. Automatically Remanding Accused on First Appearance
It appears to be a common "industry practice" for some judges to refuse bail on the first
appearance of an accused in court. The basis of the practice is the judge's need to avert
suspicion by the complainant and his family, friends and supporters that the judge has been
bribed by the accused person. As a result, the accused is remanded in prison custody, thereby
abridging his right to bail.
Undoubtedly, this practice constitutes an abuse of the judicial power because a judge seeks to
save or protect his reputation at the expense of the right of the accused to bail.
There is also an established tendency among some judges to deny bail applications on first
instance, with the quiet expectation, built on a covert practice approaching a tradition, that the
judge would be handsomely bribed by the family of the accused person prior to the next
appearance. Where the bribed is paid, bail is promptly granted on the next adjourned date.
D. Refusing Bail to Deter Accused and Would-Be Criminals
Some judges remand accused persons in order to ‘put fear’ in them to stay away from trouble.
This is especially common in cases involving juveniles. At the first court appearance for
defilement, for instance, the juvenile is remanded in custody as a matter of course to put fear
in him irrespective of his plea of not guilty. The practice constitutes an abuse of the judicial
power of the court as well as a violation of the right of the juvenile to bail.
In addition, the practice infringes Section 21(1) of the Juvenile Justice Act, 2003, (Act 653)
under which every offence is bailable, unlike the situation of adults as stipulated in Act 30.
Section 21(1) of Act 653 provides that "when a juvenile appears before a juvenile court
14
charged with an offence, the Court shall enquire into the case and, unless there is a serious
danger to the juvenile or the community, release the juvenile on bail"
E. Acquiescing to Prosecutors' Demand to Remand
Some Judges acquiesce to Prosecutors' demand to refuse bail to accused persons and to,
instead, remanded them in custody on the ground that (a) "investigations are on-going, and
(b) "the accused is needed to assist police in their investigation".
In responding to such invitations, some judges routinely fail to conduct what approaches
appropriate judicial scrutiny of the reasons underlying Prosecution's requests for remand,
their opposition to the grant of bail, or their assertions about the existence of bail risk. They
also fail to demand from the police clear indications of when they could reasonably expect to
conclude the investigations.
Absence of Timelines for Investigation
In the absence of any defined timelines for the conclusion of investigations, Police and
Prosecutors have an open-ended opportunity to prolong the imprisonment of remand
prisoners on the excuse that "investigations are continuing". As part of their general statutory
power to regulate the conduct of proceedings before them, the more conscientious judges are
able to call such prosecutors to order in much the same way that they sometimes constrain the
conduct of lawyers, as officers the court, that have the potential to unduly delay proceedings.
Failing this, judges desert their duty to supervise their courts effectively. The net effect is
inordinate delays that occasion violations of the rights of accused persons.
The average police investigator does not work with a written Investigation Plan. As a
working tool, a written investigation plan provides a broad outline of how the officer intends
to investigate the matter; the nature of consultations required; the number of potential
witnesses to be interviewed; the documents or records to be examined; the resources required
to undertake the investigation; and the approximate timeframe within which these
consultations, interviews and examinations would be completed. Such a tool serves as a
useful guide to be reviewed and revised as necessary and appropriate; it compels discipline,
provides a measurable basis for reasonable anticipation and necessary follow-up.
An investigation plan can also help the officer develop appropriate investigation strategy and
to control the scope of the enquiry so that all essential information is collected and nonessential information rejected. Thus, investigations can be conducted with considerable
efficiency and sense of purpose. Where the investigator's supervisor reviews the progress of
work with the officer in charge, the delays in investigating and reporting on cases can be
avoided.17
Police Frustration of Bail
17
These conclusions are informed, among other things, by my previous experiences as a Human Rights
Commissioner with the British Columbia Council of Human Rights in Vancouver, Canada (1992 - 1997), a
former Director of Operations and Chief Investigator at the Commission on Human Rights and Administrative
Justice (CHRAJ) (1998 - 2001) and a Executive Secretary of the National Reconciliation Commission of Ghana
(2002 - 2004).
15
There is a common and widespread tendency among police officers to frustrate accused
persons granted bail by the court through the repetitive rejection of documentation submitted
in fulfilment of bail conditions prescribed by the court. By this common practice, police
personnel, especially investigators and their superiors, exercise inordinate powers not
conferred on them by any statute. Meanwhile, the accused remains in custody in spite of the
express grant of bail by the court.
Many defence counsel know or suspect that resort to such conduct by the police often follows
their receipt of bribes, or submission to other improper influence, from complainants.
Sometimes, the unreasonable conduct of the police is an inducement to the family of the
accused to "see" the police before the bail documents are accepted or processed with
expedition.
Though not an instance of judicial abuse of bail, this illegal practice by which police officers
unilaterally insist on bail conditions not prescribed by the court, constitutes a violation of the
rights of accused persons to bail, as well as an affront to the court and assault on the principle
of separation of powers. This practice undermines the authority of the court and must be
checked by the bench, the bar, the Police and society.
Conclusion
In making bail decisions, it is important that judges and magistrates demonstrate "increased
sensitivity to the appearance of fairness"18 and help end the horror of needless human rights
violations. As members of the legal profession, judges in particular have no business
perpetrating human rights violations.
C. CONDITIONS IN GHANAIAN PLACES OF DETENTION
Introduction
In the introduction to a brilliant article published in 1966, the learned author, Robert B.
Seidman, aptly but poignantly described Ghanaian penal policy and architecture as follows:
The prison system is at the core of Ghana's penal organisation. It stands as a
monument to colonial rule, as a memorial to confused goals, conflicting objectives,
policies evolved and abandoned and sometimes no policy at all. Today, it searches for
its true role, if indeed there is any single role for it to play. It is caught between the
urgings of a preventive policy, which recognises that prevention may work where
cure cannot, the deterrent policy of the courts, whose judges remain convinced of the
efficacy of punishment as a power in the hearts of men, and the rehabilitatory ideals
of the western world of which Ghana is a part.19
Nearly 50 years later, the Ghana Prisons Service (GPS) continues to be in search of its true
place and identity in the evolving liberal democratic enterprise anchored in a constitutionallyentrenched human rights regime. The GPS is still assailed by "confused goals, conflicting
objectives" and antiquated and dilapidated prison facilities more suitable as museum pieces
18
Borgers v. Belgium (1991) 15 EHRR 92.
19
See Seidman, Robert B. "Ghana Prison System: An Historical Perspective" [1966] Vol. III No. 2 University
of Ghana Law Journal, 89-121.
16
than places of human detention in a rapidly modernizing Ghana. Within the walls of our
ancient gaols, the conditions under which prisoners live and serve their time endlessly
demean and embarrass the helpless officers who must endure them in order to keep the
inmates securely locked-up from the rest of us -- for our collective welfare and security.
In Prisoners Are Bottom of the Pile: Human Rights of Inmates in Ghana, a report published
in April 2012, Amnesty International described the prevailing conditions in Ghanaian prisons
in September 2011 as follows:
... prisons in Ghana dramatically fail to meet international obligations and
standards on prison conditions. Overcrowding is severe in many of the
country’s prisons; food and medical care are inadequate and many prisoners
rely on family members and outside organizations for additional food,
medicines and other necessities. Skin diseases are common; and tuberculosis,
malaria, hepatitis and pneumonia are also prevalent but the prison health
system is unable to guarantee adequate medical care within the prisons.
Penal institutions in Ghana are in need of repair, refurbishment and
maintenance. Some inmates do not have access to toilets at night so they use
buckets or plastic bags in which to urinate and defecate. Many of the
preventable illnesses that affect prisoners are a result of the harsh conditions in
the cells. In some cases, the conditions are so poor that they constitute cruel,
inhuman and degrading treatment.20
Those who endure these prison conditions include both convicted prisoners
and hundreds of people in pre-trial detention. Amnesty International found
that many of those awaiting trial had been in prison for long periods – some of
several years. Such lengthy pre-trial detention constitutes a breach of
international human rights law.
The shameful truth is that Amnesty International got it all right. The conditions in Ghanaian
prisons in September 2013 are the same as they were in 2011. In the third segment of this
paper, I describe in detail conditions in two Ghanaian prisons, the Nsawam Medium Security
Prison ("Nsawam") built in 1960 and the Ankaful Maximum Security Prison ("Ankaful")
built in 2011.
Nsawam and Ankaful prisons are quintessentially Ghanaian in the sense that they were built
by native Ghanaians in the period after independence and, unlike the many other prisons in
the nation, not a relic of colonial Gold Coast! Most importantly, they are quintessential in the
manner of their use and maintenance -- like the way we keep our gutters -- initially clean,
then gradually we congest them to chocking points with our debris, and then we ignore them.
And when the rains come and the floods bring up the debris and expose our inaction, we
spring into action and set up a commission of inquiry to ask ourselves: how did it happen?
Despite significant improvements over the years, conditions at Nsawam violate human rights
in gross and grotesque manner. It is a blight on our conscience that we keep fellow human
beings, no matter their crimes, under such dehumanizing conditions -- in spite of the promise
20
Amnesty International, Prisoners Are Bottom of the Pile: Human Rights of Inmates in Ghana (April 2012), p.
6
17
of humanity and humane treatment found in our human rights-inspired liberal constitutional
order.
Ankaful is the most modern of all Ghanaian detention centres. Its physical edifices compare
with the best in the world. It is the most secure prison imaginable; without collusion from
prison officers, escape from Ankaful is a human impossibility. And when the second and
third phases of the facility (a shopping mall, mosque, church and living quarters for prison
officers) are fully completed, Ankaful will not only be the most secure place of detention but
also the most humane, self-contained and ultra-modern prison.
Even today, Ankaful is a model prison of peace and happiness. And my client who has
experienced temporary sojourn at Ankaful, with all its remoteness and truly maximum
security features, prefers it to Nsawam, and the Legon Police Station cells! As prisons go,
Ankaful is heaven with a small "h"! Yet, even at Ankaful, conditions exist that inherently
violate the human rights of inmates and that collide with international human rights standards
and norms.
General Principles
It is a settled fact in penology and criminology that the essence of imprisonment is the
deprivation of liberty. In this sense, "convicted criminals are sent to prison as punishment,
not for punishment. Beyond the pain of loss of liberty or freedom of movement, association
and other personal choices, and the performance of any custodial labour the trial judge might
have imposed as part of the sentence for the crime, a convict is not to be subjected to
additional punishment or mistreatment while in prison".21
In short, prisoners are not to be punished beyond the scope of the punishment prescribed for
their offences by the existing law and pronounced on them by the court. Any conditions or
terms of imprisonment that imposes additional burdens and deprivations on them constitutes
an unwarranted interference with their fundamental human rights.
It is for these reasons that the United Nations has established Standard Minimum Rules for
the Treatment of Prisoners22 and Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment23. Many countries have fashioned their
penal/correctional systems on these UN principles and protocols.
In Mukong v. Cameroon24, the UN Human Rights Committee noted that all countries have an
obligation to observe certain basic human rights standards in its prisons. The Committee
stated as follows:
21
See Attafuah, Ken Agyeman (2008) Fighting Armed Robbery in Ghana, The Justice and Human Rights
Institute, Accra, p. 220
22
Adopted in 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held at Geneva, Switzerland, and approved by the Economic and Social Council by its resolutions
663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
23
Adopted by the UN General Assembly resolution 43/173 of 9 December 1988
The author, a Cameroonian journalist, was convicted of the offence of “intoxication of international and
national opinion” for advocating multi-party democracy.
http://www.article19.org/resources.php/resource/3253/en/hrc:-mukong-v.-cameroon
24
18
“As to the conditions of detention in general, the Committee observes that certain
minimum standards regarding the conditions of detention must be observed regardless
of a State party's level of development. These include, in accordance with Rules 10,
12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of
Prisoners, [Adopted by the First U.N. Congress on the Prevention of Crime and the
Treatment of Offenders, held in Geneva in 1955, and approved by ECOSOC in its
Resolutions 663C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.]
minimum floor space and cubic content of air for each prisoner, adequate sanitary
facilities, clothing which shall be in no manner degrading or humiliating, provision of
a separate bed, and provision of food of nutritional value adequate for health and
strength. It should be noted that these are minimum requirements which the
Committee considers should always be observed, even if economic or budgetary
considerations may make compliance with these obligations difficult.”
The question is: How well does Ghana fare on its commitments to the protection of the rights
of prisoners?
In its report to the Annual General Conference of the Ghana Bar Association in October
2011, the Prisons Service Council of Ghana (the Council) noted that the very high number of
remand prisoners and over-crowding in the prisons remain some of the major challenges
facing the nation. The Council observed that:
“Overcrowding in most of our prisons has reached an alarming proportion. For
instance, the Nsawam medium Security prison (male) which has an official capacity
of 851 currently holds 3,356 prisoners as of 3rd August, 2011. Also, the Kumasi
central Prison has a current prisoner population of 1822 in a prison meant to
accommodate 500 inmates”
In further comments, the Prisons Service Council states that the astronomical rise in the
number of remand cases also gives cause for concern adding, among others things, that
sometimes the length of time spent on remand would have exceeded the length of the prison
sentence for the crime committed. Furthermore, reports on periodic inspections by the
CHRAJ into conditions prevailing in detention facilities in Ghana provide compelling
evidence of severe congestion and overcrowding25. In some prisons such as the Ho Central
Prison (Males), the overcrowding situation is so acute that at night inmates locked up in the
cells take turns to sleep on beds while others stand or squat as a result of the limited sleeping
space and woefully insufficient beds.
1. NSAWAM MEDIUM SECURITY PRISON
The portrait of conditions prevailing at Nsawam is valid as at 6th September 2013. It covers
congestion, health and healthcare, meals, recreation, and reformation and rehabilitation
facilities.
a. History
accessed: 1st September 2013
25
The foregoing generalizations do not apply to the Ankaful Maximum Security Prisons.
19
Located some 18 kilometres from Ghana's capital city, Accra, Nsawam was built in 1960
with a maximum capacity of holding 717 inmates. As it its name suggests, it was intended as
a prison for convicts who posed medium security escape risk. Between 1960 and November
2011 when Ankaful was commissioned, Nsawam functioned as Ghana's maximum security
prison.
b. Congestion
Nsawam is the most overcrowded prison in Ghana. Indeed, as at 6th September 2013, the total
lock-up at Nsawam was 3,639 inmates, far in excess of its original lock-up capacity of 717.26
The following constitutes the breakdown of the prison population:
a.
b.
c.
d.
e.
f.
Convicts
Remand
Trail Prisoners
Condemned
Lifers
President's Pleasure
-
2,542
717
163
126
90
1
c. Meals
The Ghana Prisons Service endeavours to offer varied meals but is unable to do so regularly
due to financial challenges. Prisoners are fed on two or three meals per day. Meals have high
carbohydrate and low protein content. Fruits are rarely served, even when in season. Meals
do not include eggs or other dairy products.
The quality of meals is generally poor. As a result of the unsatisfactory food quality served at
the prisons, it is very common to find prisoners cooking extra meals by themselves to
supplement their “official” meals. Prisoners prepare their meals using foodstuffs such as rice,
yams, cassava and plantain supplied them by family members and friends. The environment
of food preparation by inmates leaves much to be desired. I have personally seen many
inmates cooking all kinds of dishes using improvised utensils, including empty food cans,
over earthenware fireplaces, coal-pots or on firewood. The firewood often emits smoke. Food
items are routinely pounded or grounded on the bare, cemented floors of verandas or
corridors. Inmates who lack such family support systems may have to “buy” such food from
their colleagues.
Annual prisons inspection reports by the CHRAJ show that prisoners in Ghana continue to
express general dissatisfaction with the quantity and quality of food provided for prisoners.
Most prisoners depend on their relatives to supply them with food or sometimes make
provision from their own resources.
26
Ironically, this horrendous overcrowding exist in spite of the implementation of various measures by the
Ghana Prisons Service and the Judicial Service of Ghana to decongest the prison. The measures include (a) the
transfer of some prisoners to the Ankaful Maximum Security Prison; (b) the release of some inmates through the
Justice For All Program instituted in 2007 -- a special arrangement by which judges hold court in prisons to
hear the cases of remand prisoners, with or without legal representation; and (c) the exercise of Presidential
prerogative of mercy or pardon in favour of certain classes of inmates, including the elderly, those with
congenital infirmities. In the last quarter of the year 2012, for instance, 100 inmates at the Nsawam Medium
Security Prison gained their freedom through legal interventions such as appeals, petitions and motions.
20
Many inmates at the Nsawam Prison experience food insecurity. Several prisons officers
have told me during my training sessions with them that some inmates are compelled by the
chronic food insecurity at the nation’s prisons, including Nsawam Prison, to trade contraband
goods for food from those inmates who have adequate food resources or supplies from their
relatives or other sources. Occasionally, inmates fight over food.
Even so, it must be stated that the feeding situation at the prison has improved considerably,
with the feeding ration having gone up astronomically from a mere GH¢0.60p per inmate to
GH¢1.80. The quality of meals has thereby improved.
d. Sanitation and Washing Facilities
Annual reports of CHRAJ repeatedly note that the sanitary conditions in most of prisons are
appalling. Sanitation facilities are generally poor in adult prisons. Indeed, the prisoners (both
remand and convicted) generally have their toilet in the same cells in which they sleep.
Water closet toilet facilities and showers are available and located at the far end of the open
space or internal yard of the dormitories for inmates’ daytime use. At night, the inmates use
water closet toilets located within their cells. Each inmate stores water in a container which
he uses to flush the toilet, using stored water from the container.
The perennial problem of water shortage at Nsawam, which meant that inmates had to
contend with the awful stench whenever they run out of water, has now been solved. The
situation of acute water shortage has considerably, with the provision wells fitted with
pumps.
The washing facilities are satisfactory. Bathing is done in a dormitory-style washroom or bath
house, and inmates have no privacy in that regard. Every morning, inmates have to endure the
degrading ordeal of having to queue to use the very few water-closet toilets available at
Nsawam, sometimes resulting in embarrassing and dehumanizing episodes of an inmate
defecating on himself.
e. Cells, Cell Holdings and Sleeping Space
The Main prison block is reserved for prisoners serving long sentences. It has 48 cells. Each
cell was originally intended to keep a maximum of three (3) inmates, but each currently holds
5 or 6 prisoners. Five other blocks have 12 cells each, with an original capacity of 20 inmates
per cell. At present, each of these cells holds 50 or more prisoners. As a result of the
congestion, sleeping space is extremely limited and tight, and most inmates sleep on "floors
packed like sardines".
The limited sleeping space is gravely compounded by the common practice of prisoners
storing in their cell a considerable amount of personal belongings such as food items, stoves,
cooking utensils and water containers of all sizes.
f. Beddings and Bedbugs
Beddings at Nsawam leave much to be desired. The Prison has only a few mattresses.
Sometimes it takes relations of prisoners and philanthropic individuals and organizations to
supplement the bedding by providing blankets, comforters and pillows to prisoners. Blankets
are inadequate and mostly torn.
21
Some inmates sleep on the bare floor, increasing their propensity to contracting pneumonia
and other respiratory diseases, especially during the cold rainy season. Pneumonia is a
common cause of death.
Bedbugs are a serious and constant nightmare at the prison. Various skin diseases, including
scabies, afflict the inmates, some of whom can be seen sporting rashes all over their bodies.
Despite improved nutrition at the prison, many inmates are anaemic as a result of affliction
from bedbugs; such inmates tend to bleed profusely from the slightest cuts on their bodies.
Given the acute space constraint, the presence of bunk beds severely restrict sleeping space,
forcing many inmates to squeeze themselves into every imaginable little space to sleep at
night. Many prisoners sleep on the mats or mattresses on the floor as the number of beds
available is inadequate relative to the number of inmates. My personal observation of this
situation was in 2004, but other recent credible reports indicate that the practice continues.
For instance, Jean-Paul Lupien (2008) notes that “[t]here are not enough beds or mats for
everybody so many prisoners sleep on the floor”. During a training session I facilitated for 13
senior officers of the GPS from 10th–13th November 2010, several of them confirmed that the
situation had not changed since Lupien’s 2008 visit and report. In July 2011, Frances
Goddex, one of my clients remanded at the Nsawam Prison, told me had had to sleep on the
floor due to lack of beddings.
g. Health and Access to Healthcare Facilities
Medical facilities at detention centers in Ghana are essentially infirmaries for the treatment of
non-serious ailments and injuries. The infirmaries are generally fairly resourced to offer first
aid treatment. In the event of a serious ailment, a sick detained person is transferred to the
nearest hospital for treatment at the expense of the state. Generally, the Ghana Prisons
Service ensures that a sick inmate receives medical treatment in a timely manner. Ordinarily,
the onus rests on the inmate to report at the Infirmary or to bring his medical condition to the
attention of a Prison officer for appropriate intervention.
Many prisoners suffer from contagious and life-threatening illnesses such as tuberculosis and
HIV/AIDS. Indeed, according to the Ghana Prisons Service Annual Report 2009, tuberculosis
and HIV/AIDS constitute “the major causes of death among inmates”.27
The 2011 Annual Report of the Ghana Prisons Service -- the latest such report available -lists the following diseases as the commonest causes of death among the prison population:
1.
2.
3.
4.
5.
6.
7.
Tuberculosis
HIV/AIDS
Respiratory Diseases
Pneumonia
Septicaemia
Anaemia
Malaria
-
13.4%
12.2%
8.5%
8.5%
8.5%
6.1%
6.1%
Due to the extreme heat in the cells arising from the severe congestion at Nsawam, inmates
are commonly afflicted by other contagious diseases such as scabies, chicken pox and
conjunctivitis, a form of eye infection.
27
See Ghana Prisons Service Annual Report – 2009, page 3, paragraph 7.
22
Healthcare facilities at the prison continue to improve. Access to healthcare has improved
considerably over the last five years as a result of increased inmate registration under the
National Health Insurance Scheme (NHIS). At present, about 85% of inmates are covered
under the NHIS, making it possible for them to receive medical treatment free of charge for
such ailments and diseases as malaria, respiratory infections, chicken pox tuberculosis,
typhoid and HIV/AIDS. Indeed, HIV/AIDS patients have easy access to anti-retroviral drugs
at the prison. In addition, the establishment of an HIV/AIDS Testing Unit at the Infirmary of
the prison is nearing completion, with the installation of the appropriate equipment being the
outstanding issue.
h. Diabetic Prisoners
There are many inmates at Nsawam with different degrees of diabetic conditions. Due to
financial constraints, there is a constant shortage of many basic drugs at the Infirmary. The
Prison does not provide medicines and related supplies for inmates with diabetes. Diabetic
prisoners must provide their own medicines. Such inmates rely on their own resources to
access drugs for the management of their conditions. Family and friends are the primary
source of supply of medicines to diabetic inmates.
Foreigners incarcerated at Nsawam depend on their embassies or diplomatic missions to
provide them with medical supplies. It is the duty of diabetic inmates to notify their
embassies of their medical needs and to request for drugs, needles and other medial
paraphernalia for the management of their conditions.
Inmates are permitted to self-administer their own insulin shots. Nurses and other paramedic
personnel are available to assist inmates manage their conditions, including regular checkups. There are no doctors at the Prison.28 The medical personnel manage all diabetic
emergencies that come to their attention and transport patients in critical condition to a
nearby hospital in the Nsawam municipality or to the Korle Bu Teaching Hospital in Accra,
the largest hospital in Ghana.
i. Ambulance Service
Nsawam does not have an ambulance29. Inmates with serious medical emergencies are
transported to Accra in ordinary vehicles which lack appropriate medical equipment and
fittings. In 2012, the Member of Parliament for Bawku, Adamu Dramani, who was serving a
jail term at the Prison, nearly lost his life from a severe asthmatic attack and had to be rushed
to the Korle Bu Teaching Hospital for medical treatment. Earlier in 2008, Tsastu Tsikata, a
prominent Ghanaian lawyer with asthmatic condition who was serving a jail term, nearly lost
his life for want of adequate medical facilities and an ambulance at the Nsawam Medium
Security Prison; he survived a ride to the Korle Bu Teaching Hospital in a regular vehicle
unfitted with paramedic facilities.
j. Internal Security
Inmates at Nsawam are housed in dormitories. Chain-link fencing is used to control the
movement of prisoners. In addition, internal discipline and control is maintained through,
28
The entire Ghana Prisons Service does not have a qualified doctor attached to any of its prison facilities
throughout the country.
29
Indeed, the entire Ghana Prisons Service does not have a single ambulance.
23
among other measures, the use of “star prisoners” as dormitory supervisors or cell leaders.
These leaders are rewarded by the prisons officers for their service and loyalty to the prison
authority. This system fosters bullying by the cell leaders who can be quite predatory toward
their “subordinate” colleagues. The adverse consequences of this practice at Nsawam are
aptly captured by Canadian Penologist Jean-Paul Lupien in his December 2008 report
following his official study visit to Nsawam Prison:
“Within each dormitory, selected prisoners are used to control other prisoners, to
maintain peace and discipline within. They are also used to pass on information to
prison authorities. Those selected prisoners (commonly called black coats and cell
leaders) rewarded by additional food, extra time outside the cell etc. The prison [had]
18 official black coats or star class inmates as indicated on the lock up board. This
system invariably leads to physical and mental abuse, extortion, taxation, favouritism
and inequalities among prisoners”30. [Emphasis original]
k. Visiting
Contact with the outside world is severely circumscribed. Visitation by family members and
friends is the principal means by which inmates maintain contact with the outside world.
Access to local television and radio is available but severely limited. The internet is largely
unavailable to inmates except those who are “privileged” or permitted by the prison
authorities, or who can access it on their “contraband” mobile phones which are highly
expensive to maintain in the prison.
l. Idleness
Most prisoners are idle as a result of the virtual lack of physically and intellectually engaging
activities at the Prison. Partly as a result of their sheer numbers and also due to the lack of
appropriate facilities for skills training and educational upgrading, few inmates can access the
highly limited vocational and educational training opportunities available at the Nsawam
Prison. Most of the equipment used is antiquated and uninspiring, the trades offered are too
ancient and hardly profitable to attract the commitment of most inmates.
m. Education, Reformation and Rehabilitation
There is, however, an emergent paradigm shift in the Ghana Prison Service from its simple
custodial philosophy to a more positive orientation of reformative, correction and
rehabilitation. The Ghana Prisons Service is making better efforts to provide inmates with
better educational opportunities up to tertiary level. In this regard, the Ghana Education Trust
Fund (GETFUND) is currently building a three-story building to provide better facilities for
the education of inmates.
The Ghana Investment Fund for Electronic Communications (GIFEC) has installed 15
computers out of a total of 100 earmarked for the prison. Inmates are now being encouraged
to pursue technical, secondary and tertiary level courses.31 Authorities at Nsawam have
copied the good example of the Kumasi Central Prison which, in 2005, introduced
30
See Jean-Paul Lupien (2008) Nsawam Medium Security Institution: Report of the Prison Visit 4 th of
December 2008 (Unpublished), page 4, bullet 4
31
In 2012 for instance, inmates at Nsawam Prison who took the Certificate and Diploma in Computing obtained
100% passes, with eight (8) of them obtaining distinction in the examinations conducted and supervised by the
National Vocational Training Institute (NVTI).
24
educational opportunities for their inmates and registered 20 of them to write the BECE
examinations in 2007. Even so, access to computer facilities at the prison is woefully
inadequate. Inmates also lack access to the Internet.
2: ANKAFUL MAXIMUM SECURITY PRISON
Information used for this portion of the paper is derived from research conducted on 8th June
2012 by me and my colleague Martin Luther Kpebu, Esq., of Fugar & Co., Barristers,
Solicitors & Notaries Public, Accra. The research consisted of an inspection visit, permitted
by the Director-General of the GPS, to the Ankaful maximum Security Prison; observation of
the physical structures and conditions at the prison; a structured interview with the Deputy
Director of Prisons and Officer-in-Charge of Ankaful and his deputy, an Assistant Director of
Prisons; and informal conversations with several of the inmates.
The interview centred on several critical issues affecting the welfare of prisoners, including
the following: History, Nature, Purpose and Capacity of the prison; Cell Dimensions;
Sleeping Space; Bedding; Meals; Toilet Facilities; Water; Sanitation; Library; Recreation;
Medical Facilities; Access to Health Services; Internal Security; Counselling Services;
Visitations; and Conjugal Rights.
Findings
The findings and conclusions below are based on information obtained from the Prisons
Officers during the visit, direct observations made in the course of the inspection,
measurements of cell dimensions taken by the Prisons Officers at the request of the
researchers, and casual conversations with some inmates.
a. History and Nature
Ankaful is an all-male maximum security prison commissioned in November 2011. The
facility is "primarily for long sentence prisoners32, especially high profile cases". At the time
of the visit, the highest sentence being served by a prisoner was 168 years, while the lowest
was 20 years.
b. Profile of Offenders
All inmates at Ankaful are males. Most inmates have been convicted for robbery and one or
more of the following offences: unlawful possession of arms, rape, defilement and trafficking
of narcotics. Some of the inmates were serving multiples sentences. The ages of inmates
ranged from 20 to 58 years approximately. At the time of the visit, there was only one high
profile remand prisoner; he was standing trial for multiple murders, and had been previously
convicted and sentenced to 13 years imprisonment for a different offence.
c. Capacity
32
The Officer-in-Charge explained that "long sentence prisoners" refers to persons sentenced to long custodial
prison terms of 20 years and above.
25
Ankaful was built to hold 2,000 inmates. There are five (5) prison Blocks numbered A-E,
each with a capacity of 400. At the time of the visit, only Blocs A and B were in use, holding
a total of 220 inmates.
d. Cell Dimensions and Ventilation and Lighting
Each cell measures 16 feet 5 inches x 10 feet 10 inches or 5m length by 3.3m breadth. The
cell walls and ceilings are fairly high, permitting adequate ventilation. During casual
conversation with some of the inmates, they expressed satisfaction with the airflow or
ventilation, and did not complain of heat. Natural and artificial light supply in the cells was
found to be adequate.
e. Cell Holdings
Each cell contains 10 inmates. Although Ankaful is a brand new facility, the practice of
keeping as many as 10 inmates in a cell of such a small size offends against international
human rights standards and norms.
The inmates sleep on five (5) double-decker student-type bunk beds. The authorities
explained that the "10 per cell" arrangement was experimental, and was aimed at ascertaining
how many inmates can be conveniently kept in a cell in the long run.
We found this situation to be unacceptable and contrary to international human rights
standards and norms. Given the dimensions of the cells and extant international human rights
standards and norms, there should be no more than four inmates per cell, in the worst case
scenario. In this sense, Ankaful was, ironically, a congested prison.
f. Congestion
The cells appeared very crowded or congested; the five bunk beds take up most of the space,
leaving very little room (probably less than 3ft x 3ft) for the inmates' use. The situation is
compounded by the fact that inmates store a lot of personal items such as clothing, utensils
(food containers, eating bowls, drinking cups and cutlery), and foodstuffs in the cells. As a
result of the severe space limitations in the cells, inmates make ingenious use of every
conceivable space available to them; they hang their footwear in the spaces between the iron
bars above the cell door, and keep some personal items under the beds.
g. Beddings
Each inmate had a mattress and blanket for his personal use. We also saw pillows on most
beds.
h. Toilet and Bath Facilities
There is a flush toilet in each cell. It consists of an opening on a slightly raised platform made
of material which appeared to be porcelain or the same material used in making water closet
toilets. Inmates squat over the opening in the floor. The toilets had no door or partition to
ensure any degree of privacy. A thin chain or rope hangs from a tank on the wall above,
which is pulled to flush the toilet. The toilets are less than three feet from the nearest beds.
26
Five toilets of the same description are located in a dormitory-style bathhouse which the
inmates use during the hours of 6:30 a.m. and 3:30 p.m. when they are not locked-up. There
are no short walls, partitions, cubicles or doors around any of the toilets. The Prison Officers
explained that the toilets are deliberately so constructed to deny privacy "in order to prevent
sodomy".
We were informed that these in-cell toilets are used by inmates during lock-up hours, i.e.,
between 5:30 pm and 6:30 am. No water closet toilet was seen in the cells or anywhere in the
blocks.
The justifications for the denial of privacy notwithstanding, the open-toilet system at Ankaful
constitutes, in my view, a violation of human dignity contrary to Article 15(1) of Ghana's
1992 Constitution. It also offends against Article 3 of the European Convention on Human
Rights which prohibit subjection to "torture or to inhuman or degrading treatment or
punishment"33.
Inmates use dormitory-style showers. Though few, there did not appear to be any pressure on
the either the showers or toilets at the time of our visit. During or inspection, we observed
several inmates taking showers during our inspection.
i. Mosquitoes
Mosquitoes are an abiding concern for all inmates. Both inmates and Officers were
unanimous in their complaints about the overabundance of mosquitoes. Many inmates in both
Block A and B were very strident in drawing the situation to our attention. The matter spoke
for itself as many of them had clear evidence of mosquito bites on their skin. Several inmates
had what appeared to be skin rashes on their body, but the officers on duty at the block
explained that they were "just mosquito bites".
We observed mosquitoes all over the place. Virtually every inmate we spoke with, as well as
the prison officers who conducted us on the inspection tour, pleaded for mosquito nets to help
[the prisoners] cope with the mosquito menace. Several inmates who lacked mosquito nets
but were lucky to have the lower tier of the double-decker bed used bed-sheets or pieces of
cloth to build a tent around the bed as a means of fending off the army of voracious
mosquitoes.
j. Water
There is potable water supply at Ankaful. We saw several inmates taking a shower in the
open bathhouse; the water pressure was quite strong. Water tankers with approximately 500
33
Article 3 of the ECHR deals with the prohibition of torture and provides that "No one shall be subjected to
torture or to inhuman or degrading treatment or punishment". The provision has been interpreted by the
European Human Rights Court as "prohibiting a state from extraditing an individual to another state if they are
likely to suffer the death penalty". The provision usually applies, apart from torture, to cases of severe
police violence and poor conditions in detention.
see: http://en.wikipedia.org/wiki/Article_3_of_the_European_Convention_on_Human_Rights.
Accessed: 1st September 2013
27
litre-capacity served by boreholes supplemented the main water supply system from nearby
Cape Coast city.
k. Meals
Inmates are served three meals a day. breakfast typically comprises porridge made from corn
or rice, plus sugar and bread; it is served from 6:30 - 7:00 a.m. Lunch is served at 11:30 a.m.
and is either rice and beans, rice and leafy green leaf stew, banku (a sticky paste made from
sticky corn and cassava dough), gari (cassava farine) and beans, or gari and soup plus fish.
Served at 3:30 pm, dinner consists of any of the lunch foods listed above, which was not
served for lunch on a given day. Meat is served only during festivities (such as Christmas
and Easter).
l. Medical Facilities & Services
There is a clinic staffed by two (2) qualified Medical doctors (general physicians) attached to
Ankaful from the Cape Coast Regional Hospital. One (1) Medical Assistant, one (1) Nurse,
and one (1) Laboratory Assistant constitute the support staff at the Clinic. Sick inmates are
treated at the Clinic. Serious ailments are referred to the Regional Hospital.
There was no opportunity to inspect the conditions inside the Clinic, but like all the facilities
at Ankaful, the facility was new. The Director of the Prison keeps in his office all drugs
meant for the Clinic; the object is to ensure control and prevent abuse.
A Medical Parade is conducted every morning at 6:30 a.m. when the cells are opened to let
out the prisoners into the courtyard of the Blocks. During the parade, all sick inmates are
invited to come forward; sick inmates are escorted to the Clinic by the nurse for appropriate
diagnosis and treatment.
The majority of inmates looked healthy and energetic, while a handful looked frail and
depressed.
m. Library
There is no library at the prison. Ankaful does not provide inmates with any form of reading
material; some inmates had personal copies of the Bible and the Quran, or other religious
literature such as Christian pamphlets or tracks. Nothing existed within the prison to help
inmates improve their minds.
The provision of a library is one of the key activities to be embarked upon during the second
phase of the construction and development of the prison. My co-researcher and I were shown
the grounds for the proposed Phase Two projects, as well as beautiful drawings of the various
components. They include a church, mosque, library, school and laundry. According to the
Officer-in-Charge, completion of the library and other Phase two facilities "depends on the
availability of funds".
n. Recreation & Rehabilitation
Ankaful boasts of three adequate playgrounds: a football field or soccer pitch, a volleyball
court, and basketball court. However, the prisoners do not use the facilities often as, the
28
Officers told us, "there is a constant shortage of balls because they easily get punctured by the
barbed wires" and the metal mesh fences.
There were no rehabilitation programmes for the inmates at Ankaful. This may be due to the
fact that the prison is a long-term custodial facility for high profile criminals most of whom
have no reasonable chance of being released during their lifetime.
o. Idleness
Next to coping with the unbearable mosquitoes at Ankaful, dealing with boredom arising
from idleness and a sense of hopelessness constitutes the inmates' most significant challenge.
Inmates typically cope with the perennial problem of prison boredom by watching television.
A wall-mounted flat-screen television in the Eating Area overlooking the open courtyard was
screening a European football match at the time of our inspection. In the Eating Area and on
the verandas, inmates also sat on benches and played a number of indoor games such as
Ludo, cards, draft (checkers) and oware (a local table-top game) popular among Ghanaians.
There were no recreational or entertainment facilities such as TV or games in the small cells
for the prisoners during lock-down between 5.30 p.m. and 6.30 a.m.
p. Sanitation
The courtyards of Block A & B where the prisoners congregate and spend most of their day
were generally clean. Prisoners dispose of garbage in big plastic dustbins which they wheel
under escort to a huge container outside the prison, which are expected to be emptied by the
nearby municipal authorities.
At the time of the visit, the container had not yet been emptied even though inmates were
transferred to the prison on 30 January 2012; the Prisons Officers explained that the container
had not yet been emptied because it was not yet full.
q. Internal Security
Ankaful lives up to its billing as a maximum security facility. From both the outside and
inside, the facility has all the usual trappings of a tough, maximum security prison: layers of
high, solid concrete walls, panoptical tower, even meshed nets separate the inmates from the
skies above.
Inmates are released from their daily lock-ups at 6:30a.m. into the small yard where they
spend the day unless escorted to the clinic to see a doctor, the supermarket to buy toiletries,
or to any of the three playgrounds for a game of soccer, volleyball or basketball. According to
the Officers, the prisoners are rarely allowed out of the blocks into the playfields as the
barbed wires and metal fence mesh regularly destroy they balls; they lamented that three (3)
footballs had already been punctured by the barbed wires since March!
Handcuffs are used to restrain problem inmates. Lock-up in solitary confinement is a regular
method of social control for violent or errant inmates. The duration of lock-up depends on
the severity of offence, but may range from several hours to a day or two, or until the inmates
achieves sobriety or calms down. No shackles, leg-irons, chains or other primitive
29
instruments of restraint were seen, and we were assured by the officers that none are used at
Ankaful.
The Officers informed us that the philosophy of social control at Ankaful is "no violence, no
aggression on inmates". We had no opportunity of ascertaining the veracity or otherwise of
this claim. The prison was tranquil at the time of the visit.
The Officers also told us that the greatest challenge facing the prison was the maintenance of
internal discipline over people who know that they have prison sentences longer than their
normal life expectancy, and some of whom have a perennial death wish, but lack
opportunities for suicide. This demands a careful balance between control and persuasion in
order to maintain discipline.
r. Counselling
A professional Clinical Psychologist together with a Chaplain provide counselling services
to inmates at Ankaful.
s. Visits
From Monday to Friday, inmates at Ankaful are entitled to receive visitors between 9:30 a.m.
and 3:30 p.m. Visits begin at the same time on Saturdays but end at 2:30 p.m. Visits are not
permitted on Sundays and Public Holidays.
Each convicts is entitled to receive one (1) visit per week. There are no limits on the
frequency of visits for remand prisoners. The duration of each visit is 25-30 minutes. In
practice inmates receive very few visitors; sometimes there are no visitors for any inmate for
several days.
t. Conjugal Rights
Conjugal rights are not recognized at Ankaful and conjugal visits are simply not an option.
C. CONDITIONS IN POLICE CELLS
Although technically speaking police cells are not prisons, this paper will be incomplete
without focusing some attention on the appalling conditions that prevail in police cells in
Ghana generally.
The most serious and abusive condition in Ghanaian police severe congestion or
overcrowding. Across the country, cells typically overflow with suspects crowded in
unimaginably small spaces with limited ventilation, poor toilet facilities and lighting. The
number of inmates in a Ghanaian police cell on a given day, particularly on Friday evenings,
typically exceed the recommended cell capacity by at least double the number.
Virtually all police cells in Ghana emit unpardonable stench. The congestion and stench
situation in Ghanaian police cells constitutes a gross human rights violation. This situation
itself is inherently criminogenic and bribe-inducing, as suspects who can afford to pay bribes
do so to be let out of the cells to breathe clean air, while others pay police officers to buy
them food (and sometimes drugs).
30
During a visit to the Legon Police Station on 9th September 2013 to see a client extradited
from London to stand trial for attempted murder, several of the officers on duty were
palpably angry at my client because his sister had argued with them about what she saw as
their abusive and intimidating conduct toward her when she took to her brother supplies of
water, clothing and toiletries. One hour later, the officers had not given him the water or any
of the other items.
My client wished to be transferred to Ankaful where he had been detained for the past two
months awaiting trial. For five days he had shared a tiny cell with an average of 15 men. The
only source of ventilation is a small, fortified triangular opening measuring approximately
12" x 4", high up in the wall. There is no running water and no water-closet toilet in the cell.
The prisoners attend to all calls of nature in a bucket. They also brush their teeth in the same
bucket which they empty in the mornings. The bucket remains with them during lock-up -from 6:00 pm to 6:00 am. One week at the Legon Police cells had taught my client that
Ankaful is truly the Heaven to which he must quickly return!
As I watched the caged men helplessly, the tall burly station officer gave 13 of the shirtless
prisoners huddled at the heavily-padlocked entrance of the cell a long, condescending lecture
on the importance of self-comportment and cell discipline, especially for the three "newcomers from Headquarters", and how important it was for them as prisoners to advise their
visitors on the need for visitors to comply with the Station's laws and regulations affecting
visitations, so that the officers can have their peace of mind while the prisoners serve enjoy
their stay in peace! Then he announced with pride his benevolence in informing the CID
officers responsible for the two sick inmates too weak to come to the cell entrance for their
share of the gift fresh air brought by my visit to "come and send them to hospital". It was
clear that "too-known" (assertive) prisoners would be punished later.
CONCLUSION
Conditions prevailing in Ghanaian places of detention in general, and Nsawam Medium
Security Prison in particular, are inherently cruel, inhuman and degrading, and constitute
human rights violation. This is contrary to the dignity provision of Article 15(1) and the
promise of equality and protection from discrimination found in Articles 17(2)-(3) and 33(5)
of the Constitution.
By and large, conditions in Ghanaian prisons are a terrible horror. From abject congestion
through unbearable sanitation and lack of water closet toilet facilities in cells and
unsatisfactory healthcare facilities, the prisons are inhumane centres of denigration,
humiliation and oppression. Congestion is the gravest problem facing Ghanaian prisons. The
value of human life is debased by the severe congestion which facilitates the spread of all
manner of communicable diseases. Even Ankaful, the newest, ultra-modern, state of the art
prison in Ghana, is by deliberate policy treading the path of needless congestion on an
experimental basis.
Ghana's prison conditions violate Article 15 and other relevant provisions of the Constitution
(1992). The conditions also infringe Article 5 of the African Charter on Human and Peoples’
Rights to which Ghana is a signatory. Additionally, Ghanaian prisons conditions, by and
large, violate Article 11 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) of 1968 to which Ghana is a party, and which obliges Ghana to guarantee
all persons "rights to water, sanitation and food". The conditions also violate Article 12 of the
ICESCR which guarantees "the right of everyone to the enjoyment of the highest attainable
31
standard of physical and mental health". Finally, as noted earlier, the cruel, inhuman and
degrading conditions in our prisons violate Article 3 of the European Convention on Human
Rights (ECHR).
Police killing of crime suspects, whether deliberate or accidental, undermines the rule of law
and violates the right to life and the presumption of innocence. When judges make
inappropriate use of bail, or use it in a manner that violates the human rights of accused
persons, they undermine the rule of law and public confidence in the administration of
criminal justice. Anecdotal evidence suggests that bail abuse is routine, and its scale quite
large; virtually every defence counsel has a dozen or two bail stories that horrified them.
Conditions in our prisons are simply atrocious for a nation that boasts our calibre of lawyers
and judges. These are the triple horrors we must confront ardently and urgently in the
Ghanaian criminal justice system. It begins with you.
32