Every criminal offence is bailable in Ghana now. The Supreme Court of Ghana on May 5, 2016 declared Ghana’s law on non-bailable offences as unconstitutional. Before the ruling, suspects facing charges such as treason, subversion, murder, robbery, hijacking, piracy, rape and defilement or escape from lawful custody could not be admitted to bail according to section 96 (7) of the Criminal Procedure Code of Ghana as amended.
Martin Kpebu, the plaintiff in the case described it as “one of the most oppressive laws on our statute books”. Many have hailed this judgment by the Supreme Court as likely to reduce the huge number of remand prisoners. On the contrary, the legislation was designed to promote national and international security by offering protection against violent crimes and by striking down the legislation, others believe it will expose the country to grave risk.
In this piece, I would comment briefly on the judgment and assess its effect on our criminal justice system.
Let me first highlight certain important facts about bail. Bail is the release of an arrested person on the condition that the person would appear before the court when required at a future date and that they would abide by any restrictions imposed upon them. It flows from the definition that the main purpose of granting bail to an accused person is to ensure that the accused is present in subsequent proceedings whiles he is not in custody. In the old English case of R vs. Broome [1851],18 L. T O. S.19, it was said that the object of bail is to secure by a pecuniary penalty, the appearance of an accused person at his trial.
In the famous Indian Supreme Court case of Gudikanti Narasimhulu Vs. Andra Pradesh AIR 1978 1 SCC 240: 1978 2 SCR 371, Justice Krishna Iyer (as he then was) stated “ Bail or Jail? at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion”.
This point was reiterated by Charles Crabbe JSC (as he then was) in the case of Republic Vs. Registrar of High Court; Ex-parte Attorney-General [1982-83] GLR 407 when he stated thus “ The grant of bail was an exercise of a discretionary power and the main consideration was the likelihood of the person concerned failing to appear for further proceedings” Bail can be obtained at both pre-trial and post-conviction stages and it is entirely at the discretion of the court. The Courts shall not withhold or withdraw bail merely as a punishment as provided for under Section 96(4) of Act 30.
In Martin Kpebu v. The Attorney-General, the plaintiff sought a single relief from the Supreme Court of Ghana, namely: a declaration that section 96(7) of the Criminal and Other Offences (Procedure)Act, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633) and Section 41(1)(a) of the Anti-Terrorism Act, 2008 (Act 762) contravenes Article 15(2) and 19(2)(c) of the 1992 Constitution and is therefore null, void and of no effect.
The defendant filed their statement of case and argued that by virtue of Article 14(1) of the 1992 Constitution of Ghana, the liberty of the individual could be curtailed in certain situations and Section 96(7) of Act 30 had this constitutional backing.
The Supreme Court of Ghana by a 5-2 majority declared Section 96 (7) of the Criminal Procedure Code of Ghana as amended as unconstitutional. After perusing the judgment I gathered the following to be the reasons for the decision (ratio decidendi):
Firstly, that section 96 (7) of Act 30 as variously amended is inconsistent with Article 19(2)(c) of the Constitution and for that reason is null and void and no effect. That Article 14(1)(g) does not justify the continued existence of Section 96(7) of Act 30 as amended. Article 14(1)(g) either standing on its own or when read together with Article 14(4), leaves room for the court to consider a release of a person detained under that provision. Section 96(7) of Act 30 as amended is clearly inconsistent with it and that extent is null, void and of no effect.
Secondly, that Article 14 of the 1992 Constitution and Section 96 (1)-(6) of Act 30 are sufficiently elaborate, weighty and far-reaching enough to assure simultaneously a healthy balance between the two important competing rights and interest which the constitution has a burden to uphold, namely; the personal liberty rights of accused persons and national and international security and stability. They contain sufficient substantive and procedural safeguards for the protection and preservation of society.
Thirdly, that section 96(7) of Act 30 is purposefully designed to curtail the discretionary powers vested in the courts by the Constitution to the end that persons charged with offences under Section 96(7) of Act, 30 are not entitled to be admitted to bail.
Furthermore, that the granting of bail is an illustration of the presumption of innocence until proven guilty which is a constitutional guarantee under Article 19 (2)(c) of the 1992 Constitution. The Supreme Court in Republic Vs. Court of Appeal, Ex-Parte, Attorney-General (Frank Benneh) case[1998-99], SCGLR 559,at 568, held (whiles refusing an application for certiorari to quash the decision of the court of appeal in granting bail to the accused, Frank Benneh in a narcotic related case) that ‘it is the right of every person in Ghana to enjoy his liberty, freedom of movement etc. as enshrined in the 1992 Constitution…In the instant case, the accused is presumed to be innocent until it is otherwise established’.
Moreover, there is certainty about the effect of the provisions of Article 11(1) of the 1992 Constitution which puts the Constitution at the apex of the laws of Ghana. In that scenario, Article 19(2)(c) being a constitutional provision is superior to an Act of Parliament, which Section 96(7) of Act is.
Again, that the decision by the Supreme Court in Gorman vs. the Republic (2003-2004) SCGLR 784, cannot be said to be an authoritative decision on the applicability of Article 19(2)(c) of the 1992 Constitution. This is because, that was not the primary focus of the appeal. The core issue before the court in the Gorman case was whether or not to grant the applicants’ bail in the face of the Court of Appeals refusal to grant them same. Whatever pronouncement that was made in the Gorman case regarding Article 19(2)(c) of the 1992 Constitution vis-à-vis section 96(7) of Act 30 was made per incuriam.
It is important to consider some of the dissenting opinions by the justices in this piece at this juncture as such opinions in most cases become the law in the future. Among some of the opinions expressed in dissent in the judgment were:
Firstly, that under the 1992 Constitution, the right to personal liberty is derived from Article 14, which at the same time provides limitations to the enjoyment of the right under Article 14(1).
Secondly, that section 96(7) is consistent with Article 14 and 21 of the Constitution. The problem is not the wording of the section, but with the attitude of some of the courts refusing to grant bail in the offences listed therein despite the clear wording of Article 14(4).
Thirdly, that the calls for the striking down of Section 96(7) were not made on any solid legal arguments except the sweeping invocation of the supremacy of the Constitution and of fundamental human rights.
Furthermore, that section 96 (7) co-exists with Article 14(4) with each playing its role in the administration of criminal justice in the country.
Again, it was pointed out that other common law jurisdictions like the U. S, UK and India have legislations that prohibit bail for capital offences, crimes for violence etc. The criteria specified in Section 96(5) and (7) of Act 30 are similar to what pertains in the penal laws of other countries. Section 96(5) and (6) would require some pre-trial evidential hearing akin to what pertains in some other jurisdictions mentioned supra.
More so, that the provision of non-bailable offences is a necessary law despite the perceived evil, designed to promote national, regional and international security in terms of narcotic trade, acts of terrorism and serious crimes.
Furthermore, that a person may even be denied bail in a bailable offence because the public confidence in the administration of justice may be disturbed by letting the individual, still legally innocent, go free pending the investigation and completion of the trial or passing of sentence due to the circumstances of the case.
Finally, the mandatory meaning of the word ‘shall’ in section 96 (7) of Act is mechanistic and fails to take account of the context in which it is used. The learned Judge thought that the words “shall refuse to grant bail” means that the court is prohibited from hearing an application. No proper interpretation could be made without reference to the context.
Will the judgment have any serious consequences on our criminal justice system? I interviewed some lawyers for their views. The majority of the lawyers I interviewed believe that the attitude of the court in bail matters will not change much in spite of the judgment as the granting of bail is purely at the discretion of the court. Even though every offence has been rendered bailable by the judgment, it does not mean that any tom, dick and harry would be admitted to bail when he commits an offence by the court. The courts were even denying bail in the so-called bailable offences even before this judgment.
Section 96(5) and (6) of Act 30 contains provisions that guide the courts in the exercise of their discretion whether to grant bail or not in every case. Section 96(5) of Act 30 states that the court shall refuse to grant bail, it is satisfied that the defendant may not appear to stand trial; or may interfere with a witness or the evidence or hamper with police investigations; may commit a further offence when on bail; or is charged with an offence punishable by imprisonment exceeding six month which is alleged to have been committed while the defendant was on bail. Section 96(6) of Act 30 further states that, in considering whether it is likely that the defendant may appear to stand trial the court shall take into account: the nature of the accusation, the nature of the evidence in support of the accusation, the severity of the punishment which conviction will entail, whether the defendant had previously failed to comply with bail conditions, whether the defendant has a fixed place of abode in the Republic and is gainfully employed and whether the sureties are independent, of good character and of sufficient means.
In conclusion, the plaintiff in the Martin Kpebu case must be commended for bringing the action before the Supreme Court. This landmark judgment is good for our criminal justice system. However, the problem still remains that, the courts grant bail to these suspects with very harsh bail conditions and they end up not meeting the conditions and languish in jail. There are also allegations of the police extorting monies from suspects before approving sureties. Trials are protracted in Ghana. The Attorney-General’s Department delay in giving its advice on dockets. Cases are adjourned many times, exasperating accused persons on remand. Sometimes, the state does not have evidence to prosecute, leaving the accused in police cells until a time when the state wants to continue the case. Dockets also get missing and police also delay their investigations. The police arrest before conducting investigations and not vice-versa and many of the times conduct arm-chair investigations. In my view, until these bottle-necks are removed we cannot realize a perfect criminal justice system.
The writer is a Human Rights Advocate and works with Helplaw Ghana (a private Legal Aid Provider)