Opinions Sun, 7 Feb 2016

In the matter of the constitutionality of non bailable offences

On 21st March, 2015 Daily graphic reported that a serving senior officer of the Ghana Police Service has gone to the Supreme Court to invoke its original jurisdiction to declare as unconstitutional the refusal of the courts to grant bail to accused persons in any criminal trial.

The plaintiff, Superintendent of Police Mr Ayamga Yakubu Akolgo, is also seeking an order for the court to strike out section 96 (7) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) and whatever section of any enactment that prohibits a court from granting bail in the trial of any offence as unconstitutional, void and of no effect.

According to Mr Ayamga, who is a chartered accountant and a lawyer, the existence of statutory restrictions in the grant of bail was inconsistent with the principles of the 1992 Constitution, rule of law, justice and respect for human rights.


The plaintiff is seeking, among other reliefs, a declaration that upon a true and proper interpretation of Article 14(3) and (4) of the 1992 Constitution, The Criminal Procedure (Amendment) Decree, 1975 (NRCD 309), which prior to the coming into effect of the Constitution, amended the Criminal and other Offences (Procedure) Act, 1960 (Act 30) as amended by the insertion of section 96(7) which amendment purports to prohibit a court from the grant of bail in the trial of certain criminal offences is inconsistent with the said Article and, therefore, unconstitutional, void and of no effect.

This article is my commentary, and represents a humble view on the challenges of the restrictions on law enforcement, particularly for Police investigators and other law enforcement officers and what he or others of like mind should factor into such legal steps in further legal actions seek an amendment, to reduce the unbearable burden on law enforcement ,thereby bringing justice in a meaningful way to the door steps of all those to whom it may concerned.

Upon a careful reading of his pleadings I appreciate the wisdom in such action. Article 14 (3) allows for a maximum of 48 hours detention in Police custody without trial, whereas the person has been taken into custody without a warrant for the alleged offence. That is without the suspect being sent to court.

Article 14, Clause 3 reads as follows "A person who is arrested, restricted or detained -

(a) for the purpose of bringing him before a court in execution of an order of a court; or

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty eight hours after the arrest, restriction or detention."

In that situation, and whereas it appears to the officer in charge of the Police station that the enquiry into the case cannot be completed forthwith to enable Police proffer an appropriate charge against the suspect Police can grant enquiry bail in respect of offences which are bailable, at the station.

Alternatively in relatively serious cases such as causing harm, threat of Death and Harm, Police can also arrange the suspect before court on the preliminary charge and remand him/her to be able to conclude investigations. Police may not oppose bail in subsequent hearings if the suspect is formally charged. Therefore article 14 (4) will be applicable(useful) to non bailable offences, where the suspect is sent to court and put on remand. In this case he or she will not be released on bail, in the strict sense of the law, until investigations are completed, full prosecution procedure commenced and ended, followed by a judgement of the court in the matter.

All this while the accused person, whether innocent or not is kept behind bars. In narcotic cases for instance the substance will have to be tested in forensic laboratory/ Ghana standards Board, all in Accra, irrespective of the location of the case in the country, to confirm whether or not it's the prohibited drug. If that is not done the suspect will be on remand, that is if the law making such offence non bailable is to be followed to the letter.

In so doing the suspect can be on remand for years, particularly when prosecution, through the forensic laboratory delay in processing the substance for testing, as we witness periodically, due to lack of chemicals and other logistical constraints , thus delaying releasing the result on time. The aftermath is that the suspect will suffer unduly in this circumstances, meanwhile the cause of the delay has absolutely nothing to do with him/her. To arrest the situation the court can rely on undue delay [not tried within a reasonable time, under article 14 (4)]to grant the suspect bail.

In the OKOE v. THE REPUBLIC [1976] 1 G. L. 80. There was an issue on whether or not the applicant could be released on bail pending trial. It was held that "an applicant could be granted bail upon such conditions as were reasonable to secure his attendance at the trial if there is an issue of delay. " If there are questions of unreasonable delay in prosecuting the case the relevant law is Article 14 (3) and (4) of the Constitution, according to the Annotated Criminal procedure and Juvenile Justice Act of Ghana, Act 30).

For the avoidance of doubts Article 14, Clause 4 Reads "Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released whether unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial." Currently It is only the High Court and not any of the lower Courts that can admit an accused person to bail in non bailable offences if the accused person is not tried within a reasonable time. Enforcement of fundamental human rights and freedoms is enforced by the High Courts. See Article 33 of the Constitution. The Court of Appeal and the Supreme Court could grant bail on appeal in respect of non bailable offences. See Article 33(3) of the Constitution.( HUMAN RIGHTS APPLICATION IN CRIMINAL PROCEEDINGS BY JUSTICE DENNIS D. ADJEI, Page.3)

In my humble opinion , what the supreme court should be called upon to do now is to define in specific terms what is a "reasonable time" in criminal trials. Relatively a period, within which prosecution should commence in certain criminal proceedings initiated in court for Non Bailable offences should be attached. Examples of Non bailable offences includes cases of Narcotics, Defilements, Rape, Treason and Murder . To give life to article 14 (4) and 19 (1) a duration of six(6) months should be given to prosecution to commence full trial and in default the court; to include the circuit and District Magistrate courts should be given the powers to grant bail without further restraints.

For the avoidance of doubts one can still be refused bail after the "grace period" if the conditions for refusal of bail is proved to the maximum satisfaction of the courts. This should be considered as a "reasonable time". Article 19, Clause 1 states that "A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court."

In India the Madras High Court bench has ruled that those arrested in narcotics drug cases cannot be denied statutory bail after 180 days of incarceration. Justice S Tamilselvan said the Code of Criminal Procedure, states that a person accused of an offence for a maximum sentence of below 10 years can be released on bail after 90 days if police fail to file a charge sheet within that period.

Justice S Tamilselvan granting bail to two accused said bail could be denied up to a year under Section 36(A)(4) of Narcotic Drugs and Psychotropic Substances Act (NDPS) only if the Public Prosecutor (PP) had himself filed the report explaining reasons for extending judicial remand beyond 180 days.

He said in this case the accused cannot be denied bail merely on a report by the Investigating Officer (IO) and countersigned as 'submitted' by the PP. The PP has to state compelling reasons for denying bail to the accused, the judge added.

When one also considers Article 19 3(c) of Ghana's 1992 constitution which states that a person charged with a criminal offence "be presumed to be innocent until he is proved or has pleaded guilty" keeping suspects on remand for a year whether he is innocent or not is tantamount to an injustice in the justice system.

This is because administrative failures should not be allowed to constitute a breach of the fundamental human rights of the individual citizens. If at the end of investigation, which lasted for a year , and having kept the suspect on remand but was acquited and discharged by the court for lack of a prima facie case against him there is the propensity to take the state/ the individual on. The desire to sue will become stronger when it emerged that the detention was unlawful.

Article 14, Clause 5 Makes that a possibility. It provides that " a person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person."

The challenge to investigators when suspects remain on remand for long years include periodic conveyance of the remand prisoner between courts and prisons. The courts will want you to respect the rights of prisoners. The suspects will make emotional appeal to you to just send them to court. You are also faced with the challenge of getting results early for them. Personal resources may have to be used if only you want to do the right thing at the right time. It's not a simple task to be conveying a remand prisoner to and fro prisons ,covering a distance of about 15 km in proximity to the courts for one year. Let alone 5 years, wuth each adjournment lasting for an of average of 2 1 days.

Off late in an effort to protect and respect the rights of remand prisoners human rights activists and Lawyers have been drumming home the demand for their release ,either conditionally or unconditionally. This gave birth to the justice for all Programs.

The Justice For All Programme, introduced in 2007, is a co-ordinated effort among the Attorney-General’s Department, the Judicial Service, the Ghana Police Service and civil society organisations, represented by the Centre for Human Rights and Civil Liberties (CHURCIL), a human rights non-governmental organisation (NGO) to decongest the prisons through the speedy adjudication of remand cases.

The first sitting of the court in James Fort prisons attracted the Chief Justice, Her Ladyship Justice Georgina Wood, Interior Minister, Mr Kwamena Bartels, and the Inspector-General of Police, Mr P. K. Acheampong.

Launching the programme earlier, the Attorney-General and Minister of Justice, Mr Joe Ghartey, noted that apart from bringing justice to all, the programme would help decongest the prisons, as reported by the Daily graphic and published in modern Ghana online on 28th September, 2007. See http://m.modernghana.com/news/144049/1/justice-for-all-programme-two-regain-freedom.html

The chief Justice, during another justice for all court in Nsawam prisons stated in a speech that "the real challenge, however, occurred during the non-bailable offences such as robbery, murder, narcotics, rape and defilement.

Justice Wood said that even so the courts had held that notwithstanding the ouster of the time-honoured discretionary power to grant bail in such cases, bail would nonetheless be granted whenever it was demonstrated that there had been unreasonable delay in the trial or where the facts presented upon arraignment did not support the offence with which the accused had been charged."

In the Republic vs Nana Asiama Hanson (Bulldog), unreported, which was a murder case the accused was granted bail. The Human Rights Court was reported to have granted the request by the defence counsel because the facts as presented by the police and upon which they were holding Bulldog were “speculative” and did not link him to the charges that had been preferred against him.

On that basis, the court ruled that, Bulldog deserved his freedom and should not even have been held for a day. The police ought to have granted him police enquiry bail, the court added.

PRAH & ORS. v. THE REPUBLIC [1976] 2 G.L.R. 278.

The applicants were charged with the offence of murder contrary to section 46 of Act 29. They applied for bail under section 96 (3) and supported it with an affidavit by which they denied ever committing the offence charged. The prosecution did not file any affidavit in opposition and the question was whether they could be granted bail in the face of the statutory provisions on the matter.

Held: that under section 96 (7)(a) a person properly charged with the offence of murder could not be granted bail. However, in this case the applicants denied ever committing the crime which was not opposed by the prosecution. They could therefore be granted bail since the evidence did not support the fact that they had committed any offence. Application for bail granted.

On 20th March, 2015 I attended one of the justice for all seatings at Koforidua prison yard. I remember fondly how a human right lawyer, lawyer Francis Xavier Sosu, technically used the phrase "Just one roll" repeatedly and succeeded in securing the freedom of numerous narcotic drug suspects who were on remand for allegedly dealing in such drugs. Some were on remand for possessing "just one roll" of dried leaves, suspected to be Indian hemp, for periods ranging between three to five (5) years, according to myjoyonline.com reportage.

So what is needed is a legal definition for a reasonable time even if contextually. As such powers should be given to the courts to grant bail after the reasonable time elapses. This is one direction in which the law should be amended.

The power to refuse bail with the reasons as provided for under criminal procedure, article 96 (5) of act 30/60 should be maintained but it should only apply before the reasonable time, not after.

These are the conditions which will make it impossible to release suspects on bail by the court.

A court shall refuse bail if it is satisfied that the defendant a.may not appear to stand trial

b. May interfer with a witness or the evidence, or in anyway hamper police investigations; or

c.may commit further offence when on bail; or

d. Is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed while the defendant was on bail.

I also wish to add a personal one.

1.When it's suspected that he is likely to abscond

2. When his own life is endangered

3.When he is likely to intimidate witnesses

4. When Police need him/her frequently for investigations.

5. If a further breach of the peace is likely to be occasioned.

So releasing such suspects when these conditions are prevalent will disrupt smooth investigation prior to trial.

These amendments are therefore needed for the protection of the fundamental human rights, freedom and justice.

Taking away powers of the court to refuse bail simpliciter will not inure to the benefit of the defendant in some circumstances.

When complainants in cases of serious bodily hurt(causing harm), and gruesome murders realize that the suspect is released on bail in the very first seating of the court there is a potential threat to his life. He/she may be lynched in vengeance by sympathizers/assigns, or relatives of the victim of his suspected crime. Even though this amount to taking the law into ones own hands ,it may not be an easy thing to sleep over the seeming unjustifiable and unlawful death of a loved one, when the suspect (perpetrator) is walking "free" on the road the next day, hence prevention is better than cure in that circumstance.
Columnist: G.M Amevor