The evolution of 'effective vindication' in Ghana's criminal justice system, apparent bail crisis!

This article examines the evolution of the doctrine of “effective vindication” in Ghana’s criminal justice system, with a particular focus on bail jurisprudence.

It traces the constitutional and statutory safeguards under the 1992 Constitution and the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), assesses the transformative bail decisions of the Martin Kpebu line of cases, and analyses contemporary challenges such as prosecutorial discretion, illegally obtained evidence, plea bargaining, and the Attorney-General’s power to enter nolle prosequi.

The article argues that while doctrinal victories strengthened liberty protections, enforcement gaps and unchecked discretion have produced an apparent bail crisis. It concludes with a reform agenda including a comprehensive Bail Act, clearer exclusionary rules, mandatory reasons for nolle prosequi, structured plea bargaining, and a limited revival of private prosecution.

Introduction

“Effective vindication” in criminal law is the principle that accused persons must have real opportunities to assert their innocence and exercise their rights—not merely paper guarantees.

Ghana’s 1992 Constitution recognises criminal-justice rights as substantive, not rhetorical, and the courts have historically given life to those rights. Yet, a mix of doctrinal rules and prosecutorial discretion has, in practice, made those rights harder to enforce. Recent decisions by the Office of the Special Prosecutor (OSP) and the Economic and Organised Crime Office (EOCO) on bail conditions illustrate this challenge.

Bail is a constitutional safeguard meant to protect liberty. However, recent practices by the OSP and EOCO imposing manifestly excessive conditions have raised serious constitutional and statutory concerns. Act 30 governs bail and explicitly requires that conditions must not be excessive.

Fair Hearing and Personal Liberties

Two provisions of the 1992 Constitution are central: Article 14 and Article 19.

Article 14 protects personal liberty and requires, among other things, compensation for unlawful arrest or detention (clause 5). Article 19 guarantees a fair hearing within a reasonable time in criminal cases.

Both are enforceable commands. Additionally, Article 14(3) sets a strict temporal limit: anyone arrested or detained must be brought before a court within 48 hours unless released earlier. Section 15(1) of Act 30 operationalises this constitutional guarantee.

Statutory Framework on Arrest and Bail

The 48-hour rule: Section 15 of Act 30 requires that a person arrested without warrant be released within 48 hours unless brought before a court of competent jurisdiction.

Section 96(1): Empowers courts to grant bail, including where an accused has been arrested without a warrant. It is not the source of 'police bail.'

Conditions of bail: Section 96(3) requires that bail conditions shall not be excessive or harsh.'

Refusal of bail: Section 96(5) sets out specific grounds for refusal, including risk of non-appearance, interference with witnesses, or likelihood of further offending.

Ghana’s Supreme Court’s “Bail Revolution”

The Martin Kpebu decisions reshaped bail law in Ghana.

1. Kpebu (No.1) [2015]: The Court struck down section 104(4) of Act 30, which permitted imprisonment of sureties upon forfeiture, as unconstitutional.

2. Kpebu (No.2) [2016]: The Court invalidated section 96(7) of Act 30 (listing 'non-bailable' offences), holding that all offences are in principle bailable, subject to lawful grounds for refusal.

Later, in Kpedu v Attorney-General [2019], the Court directed the Chief Justice to ensure after-hours bail sittings. In 2019, the Chief Justice also issued a Practice Direction on the Determination of Bail Applications.

Illegally Obtained Evidence

Ghana lacks a general exclusionary rule for evidence obtained in violation of rights. In Raphael Cubagee v Michael Yeboah Asare [2018], the Supreme Court held that secretly recording a private telephone conversation without consent violated Article 18(2) (privacy) and should be excluded.

The “Reset Button” of Nolle Prosequi and Its Limits

Under section 54 of Act 30, the Attorney-General may discontinue a case at any stage before judgment by entering a nolle prosequi. In Afoko v Attorney-General [2019], the Supreme Court upheld this power as implied by Article 88(3). However, its use can frustrate speedy trial rights and victim closure interests.

Private Prosecution

Before 1992, Act 30 permitted limited private prosecutions. The 1992 Constitution, however, centralises criminal prosecution in the Attorney-General under Article 88(3)–(4). Recent jurisprudence confirms prosecutions generally lie with the Attorney-General unless a statute provides otherwise.

Plea Bargaining

The Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) introduced plea bargaining across a wider range of offences. Properly applied, it can reduce delay, but without safeguards risks coercing guilty pleas.

Has “Effective Vindication” Declined?

The Kpebu rulings and the 2019 Practice Direction dismantled 'non-bailable' offences and advanced liberty. Yet effective vindication has declined in practice because exclusionary remedies remain uncertain, and the nolle prosequi power can terminate trials without finality.

Practice Gaps

1. Many suspects are not presented to a judge within 48 hours. 2. Prosecutorial assertions are too often accepted as fact even before trial. 3. Structured, timely bail hearings are inconsistent. 4. Indigence drives detention outcomes. Fixing the Bail Crisis 1. Mandate recorded bail hearings within 48 hours. 2. Presume bail for all offences unless the prosecutor proves refusal grounds. 3. Burden on the prosecution to justify denial. 4. Enact a comprehensive Bail Act codifying rights and procedures. 5. Require reasons for nolle prosequi. 6. Issue prosecutorial guidelines to enhance transparency.

Conclusion

Ghana’s bail jurisprudence has advanced liberty, but practice lags. Unreasonably excessive bail conditions amount to pre-trial punishment. A comprehensive Bail Act, together with strict adherence to constitutional safeguards, would restore effective vindication as a lived reality in Ghana.