|
Constitutional
law – Interpretation
- Article
2
-
Constitution, 1992
–
Whether or not
article 14(3) of the
Constitution, 1992, section 4 of
the Public Holidays Act, 2001
(Act 601) is inconsistent with
article 14(3) and is void to the
extent of that inconsistency
only
-
Access to the Court -
Whether
or not on a true and proper
interpretation of article 14(3)
of the Constitution, 1992,
Saturdays, Sundays, Public
holidays, anytime during a civil
unrest and any other day that
the courts in Ghana cannot sit
would be counted in reckoning
the 48 hours within which a
person arrested or detained on
suspicion of committing a crime
or in execution of a Court order
ought to be brought before a
Court - Whether or not the
inaccessibility of courts on
Saturdays, Sundays, Public
holidays, anytime during a civil
unrest and any other day that
the courts in Ghana cannot sit
in respect of a person arrested
or detained on suspicion of
committing a crime constitutes a
breach of article 14(3) of the
1992 Constitution - Whether or
not on a true and proper
interpretation of article 14(3)
of the Constitution, 1992 the
Courts ought to be made
accessible on Saturdays,
Sundays, Public holidays or any
other day or time that the
Courts are ordinarily unable to
do business. - Whether or not
for the purposes of enforcing
article 14(3) of the
Constitution, 1992, judges can
sit in a secure place to hear
cases which have even not been
filed in the registry of the
Court in periods of civil
unrest. - Whether or not on a
true and proper interpretation
of the Constitution, criminal
trials involving accused persons
in pre-trial detention ought to
take precedence over trials of
accused persons who have been
admitted to bail - Sections 33,
35(3) and 42 of the Labour Act,
2003 (Act 651) - 79 rule 3(2) of
the High Court (Civil Procedure)
Rules, 2004 (C.I. 47)
HEADNOTES
In
support of his claims, the
Plaintiff submits that:
Ordinarily, Courts in Ghana sit
only from Monday to Friday and
also do not sit on public
holidays and persons arrested on
suspicion of committing criminal
offences often find themselves
in police custody beyond the
constitutionally mandated 48
hours because of these
‘non-working days’, and since
such ‘non-working days are
creatures of legislation
subordinate to the Constitution,
they cannot be given effect so
as to breach the right of access
to the Courts of Ghana the
Plaintiff submits that when a
person in custody is brought to
Court within 48 hours, he or she
receives a timely opportunity to
apply for bail.
Although the Constitution does
not expressly stipulate the mode
for calculation of the 48 hours,
looking at the intendment and
tenor of the Constitution as
well as decisions of this Court,
every day of the calendar must
be taken into account in
counting apart from weekdays,
and therefore, A Saturday,
A Sunday,
A Public holiday,
Any
other day that the Courts in
Ghana cannot sit (e.g. during
strike by Judicial Service
workers or during a strike by
any other stakeholders that will
prevent the Court from sitting),
During periods of civil unrest
in a manner that prevents the
Court from functioning
ordinarily.
In
any of such circumstances
arrangements must be made for
the Courts to sit on such days
to ensure due compliance with
Article 14(3).
During other times and occasions
such as strikes, public
demonstrations and civil unrest
when the Courts might be unable
to sit, accused persons and
suspects in custody would not
have access to the Courts within
the 48 hours, and their
constitutional rights would be
compromised. Consequently, there
is the need for an
interpretation that enables the
person in custody to apply to
the Judge directly otherwise
than in formal Court
proceedings, thus the
prosecution and defence must be
enabled to meet at a venue
otherwise than in the formal
Court
Since
Article 14(4) abhors
unreasonable delay in trials
especially for those accused
persons who are in custody, the
accused persons who are in
custody should generally have
their cases prioritised and
heard ahead of those not in
custody. The Defendant
acknowledges that Article 14 of
the Constitution guarantees the
right to personal liberty of
every person in Ghana but
provides exceptions under which
such rights could be curtailed,
i.e., in the execution of an
order of a Court or on
reasonable suspicion of an
offence having been committed.
The Defendant further
acknowledges that Article 14
does not allow for an indefinite
curtailment in the form of
pre-trial detention, and that
the Constitution, therefore,
compels law enforcement agencies
to bring any person arrested,
with or without warrant, before
a Court within 48 hours of such
arrest. The Defendant, however,
submits that:
Whilst the Constitution
did not expressly exempt any day
and any period in reckoning the
48 hours, the enforceability of
Article 14 (3) is dependent on
the accessibility of the Court.
Therefore, a declaration to the
effect that an arrested person
is to be brought before Court
regardless of what day or time
of the day the 48 hours of
arrest expires, would be
unreasonable in the face of
practical realities. The Court
must apply the modern purposive
approach to interpretation to
ascertain the true purpose of
the statute as has been
reinforced in the Memorandum to
the Interpretation Act, 2009
(Act 729) and also section 10
(4) of the Act which calls for
interpretation of a provision of
the Constitution or other law in
a manner that, amongst other
things, provides for the rule of
law and the values of good
governance, advances human
rights and fundamental freedoms
and avoids technicalities and
niceties of form and language
which defeats the purpose and
spirit of the Constitution and
the laws of Ghana
HELD
In
order to effectively activate
the provisions of Article 14(3)
of the Constitution, therefore,
the following orders are hereby
made: The Chief Justice must,
within six (6) months of this
judgment, designate in each
Metropolitan, Municipality and
District of Ghana such number of
Courts, as may be necessary in
the circumstance, to sit on
public holidays, weekends and
periods of civil unrest, where
the safety of the
Judge/Magistrate, Court Staff
and Court Users can be assured,
to determine issues pertaining
to personal liberty. During
periods any legal or illegal
strike action, which affects the
normal operations of courts, the
Chief Justice must put in place
such measures for the
determination of issues
pertaining to personal liberty,
including the holding of
proceedings in the chambers or
residence of the
Judge/Magistrate, etc., as may
be necessary under the
circumstances. The Judicial
Secretary must, within six (6)
months, make the necessary
arrangements and provisions for
the determination of rates for
overtime work and payment of
same to Judges/Magistrates and
Staff who will be affected, in
accordance with section 35 of
the Labour Act, 2003 (Act 651)
and regulation 23(3) of the
Judicial Service Regulations,
1963 (L.I. 319). The Director of
the Judicial Training Institute
(JTI) must, within six (6)
months, ensure that all
Judges/Magistrates and Staff of
the Judicial Service are duly
sensitized to the optimal
operationalisation of Article
14(3) of the Constitution. The
Inspector-General of Police
must, within six (6) months,
ensure that Police Prosecutors
and Investigators are duly
sensitized to: the
operationalization of Article
14(3) of the Constitution; the
fact that completion of
investigation into the matter
for which a person is arrested
or detained is not a requirement
for processing that person to
Court under Article 14(3), and
accordingly, the carrying out of
investigation into the case is
not a legitimate justification
for failure to bring that person
before a court within 48 hours
of the arrest or detention; the
fact that a person arrested or
detained must be brought before
a court as soon as the minimum
paper work necessary for
bringing that person before
Court under Article 14(3) is
completed, without the need to
wait for the exhaustion of the
48 hours. the fact that the
police may suo motu release an
arrested person conditionally or
unconditionally, at any time
after arrest, even within the 48
hours. So Ordered.
STATUTES
REFERRED TO IN JUDGMENT
Constitution,
1992
Supreme Court
Rules, 1996 (C.I. 16)
Public
Holidays Act, 2001 (Act 601)
Labour Act,
2003 (Act 651)
Interpretation Act, 2009 (Act
729)
Courts Act,
1971 (Act 372)
Courts Act,
1993 (Act 459)
Local
Governance Act, 2016 (Act 936)
Judicial
Service Regulations, 1963 (L.I.
319).
CASES
REFERRED TO IN JUDGMENT
Kpebu (No. 1) v A-G J1/7/2015
Kpebu (No. 2)
v Attorney-General, J1/13/2015
Ocansey& Anor. v EC [2010] SCGLR
575
Mornah v Attorney-General [2013]
SCGLR [Special Edition] 502
Mekkaoui v
Ministry of Internal
Affairs(1981) GLR 664 SC
Ransford
France (No. 3) v Electoral
Commission and AG (No. 3) [2012]
1 SCGLR 705,
Sasu v
Amua-Sakyi [1987-88] GLRD 45
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKUFFO, CJ: -
COUNSEL
MARTIN KPEBU
APPEARS IN PERSON FOR THE
PLAINTIFF.
EVELYN
KEELSON (MRS), CHIEF STATE
ATTORNEY WITH RICHARD GYANBIBY,
SENIOR STATE ATTORNEY AND
PENINAH ASAH DANQUAH (MRS),
SENIOR STATE ATTORNEY LED BY
GLORIA AKUFFO (MS),
ATTORNEY-GENERAL FOR THE
DEFENDANT.
AKUFFO, CJ:-
Brief
Background Facts
On 6th September
2016, the Plaintiff, in his
capacity as a private citizen
and a legal practitioner,
pursuant to
Article 2
of the Constitution, commenced
the action herein against the
Defendant seeking the following
reliefs:
1.
A declaration that on a true and
proper
interpretation of
article
14(3) of the Constitution, 1992,
a Saturday, a Sunday, a
public holiday, anytime during a
civil unrest and any other day
that the courts in Ghana cannot
sit (e.g. during strike by
judicial service staff or during
a strike by any other
stakeholder that will prevent
the court from sitting) would be
counted in reckoning the 48
hours within which a person
arrested or detained on
suspicion of committing a crime
and not released must be brought
before a court under article
14(3) of the Constitution of
Ghana, 1992.
2.
A declaration that on a true and
proper interpretation of
article
14(3) of the Constitution, 1992,
section 4 of the Public Holidays
Act, 2001 (Act 601) is
inconsistent with article 14(3)
and is void to the extent of
that inconsistency only.
3.
A declaration that
the
Government of Ghana is in breach
of article 14(3) of the
Constitution of Ghana, 1992 for
not taking steps to ensure that
some courts are opened on
Saturdays, Sundays and public
holidays for arrestees whose 48
hours of incarceration expire on
the aforementioned days are
brought to court for the court
to determine the validity of
their incarceration and to
enable the arrestee to apply for
bail.
4.
A declaration that, on a true
and proper interpretation of
article 14(3) of the
Constitution, 1992, certain
courts must be made to sit on
Saturdays, Sundays or any other
day that the courts are
ordinarily unable to sit due to
strikes, civil unrest and other
circumstances not contemplated,
in order for the court to hear
applications for bail.
5.
A declaration that where a court
is scheduled to sit on or seized
with a criminal matter
concerning an arrestee who is
being brought pursuant to
article 14(3) of the
Constitution, 1992 is unable to
sit in open court under
circumstances of strike or civil
unrest an arrestee in custody
has a right to apply to a judge
who has a jurisdiction to hear
that kind of case for bail or
for his release depending on the
classification of the offence.
The application may be made in
chambers or any other place the
judge may be found and should
not be subject to filing a
motion in the court, but the
motion may be with the judge.
6.
A declaration that on a true and
proper interpretation of article
14(4) of the Constitution a
court seized with a criminal
case must hear the substantive
case against a suspect or
accused who is not admitted to
bail ahead of an accused who has
been admitted to bail.
7.
Such further or other orders as
the Honourable Supreme Court
will deem fit to make.
8.
Cost for court expenses and
counsel fees.
On 10th July 2017,
the parties herein filed a
Memorandum of Agreed Issues,
pursuant to Rule 50 of the
Supreme
Court Rules, 1996 (C.I. 16)
for the determination of the
following questions:
1.
Whether or not on a true and
proper interpretation of article
14(3) of the Constitution, 1992,
Saturdays, Sundays, Public
holidays, anytime during a civil
unrest and any other day that
the courts in Ghana cannot sit
would be counted in reckoning
the 48 hours within which a
person arrested or detained on
suspicion of committing a crime
or in execution of a Court order
ought to be brought before a
Court.
2.
Whether or not the
inaccessibility of courts on
Saturdays, Sundays, Public
holidays, anytime during a civil
unrest and any other day that
the courts in Ghana cannot sit
in respect of a person arrested
or detained on suspicion of
committing a crime constitutes a
breach of article 14(3) of the
1992 Constitution.
3.
Whether or not on a true and
proper interpretation of article
14(3) of the Constitution, 1992
the Courts ought to be made
accessible on Saturdays,
Sundays, Public holidays or any
other day or time that the
Courts are ordinarily unable to
do business.
4.
Whether or not for the purposes
of enforcing article 14(3) of
the Constitution, 1992, judges
can sit in a secure place to
hear cases which have even not
been filed in the registry of
the Court in periods of civil
unrest.
5.
Whether or not on a true and
proper interpretation of the
Constitution, criminal trials
involving accused persons in
pre-trial detention ought to
take precedence over trials of
accused persons who have been
admitted to bail.
The Laws in Issue
Article 14, Clauses (3) and (4)
of the Constitution provides
that:
“(3) A person who is arrested,
restricted or detained-
(a) for the purpose of bringing
him before a court in execution
of an order of a court; or
(b) upon reasonable suspicion of
his having committed or being
about to commit a criminal
offence under the laws of Ghana,
and who is not released, shall
be brought before a court within
forty-eight hours after the
arrest, restriction or
detention.
(4) Where a person arrested,
restricted or detained under
paragraph (a) or (b) of clause
(3) of this article is not tried
within a reasonable time, then,
without prejudice to any further
proceedings that may be brought
against him, he shall be
released 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.”
Section 4 of
the Public Holidays Act,
2001(Act 601) prohibits
‘business on public holidays’
and stipulates that:
“4 (1)
Subject to sections 1, 3 and 6
and subsection (2) of this
section, a person shall not open
a shop for the purposes of
selling or trading or engage in
a business on a public holiday.
(2)
Subsection (1) does not apply to
(a) food or
grocery shops;
(b) drug or
pharmacy shops;
(c) licensed
restaurants or hotels;
(d) local
markets for sale of food or
foodstuffs;
(e) premises
licensed for sale of spirit,
wine, and beer under the Liquor
Licensing Act, 1970 (Act 331);
(f) the
running of an essential public
service specified in subsection
(3) of this section.
(3) For the
purposes of paragraph (f) of
subsection (2), “essential
public service” means any of the
following:
(a) water
supply services;
(b)
electricity supply services;
(c) health
and hospital services;
(d) sanitary
services;
(e) air
traffic and civil aviation
control services;
(f)
meteorological services;
(g) fire
services;
(h) air
transport services;
(i) supply
and distribution of fuel,
petrol, power and light;
(j)
telecommunications services;
(k) public
transport services.
Additionally,
it may also be worthwhile for
our purposes herein to also take
into account the provisions of
Sections 33,
35(3)and 42 of the Labour Act,
2003 (Act 651)and
Order 79
rule 3(2) of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47) by virtue of which
the stipulated normal working
days of the Courts of law are
ordinarily Mondays to Fridays
for a maximum number of eight
hours each day.
Order 79 rule
3(2) of C.I. 47 provides that:
“(2) Except
as otherwise directed by the
Chief Justice, the offices of
the Court shall be closed on
Saturdays, Sundays and public
holidays.”
Summary of
Plaintiff’s Legal Arguments
In support of
his claims, the Plaintiff
submits that:
a.
Ordinarily, Courts in Ghana sit
only from Monday to Friday and
also do not sit on public
holidaysand persons arrested on
suspicion of committing criminal
offences often find themselves
in police custody beyond the
constitutionally mandated 48
hours because of these
‘non-working days’, and since
such ‘non-working days’are
creatures of legislation
subordinate to the Constitution,
they cannot be given effect so
as to breach the right of access
to the Courts of Ghana. Citing
Kpebu (No. 2) v Attorney-General,
J1/13/2015 per Wood CJ and
Benin JSC,
the
Plaintiff submits that when a
person in custody is brought to
Court within 48 hours, he or she
receives a timely opportunity to
apply for bail.
2.
Although
the Constitution does not
expressly stipulate the mode for
calculation of the 48 hours,
looking at the intendment and
tenor of the Constitution as
well as decisions of this Court,
everyday of the calendar must be
taken into account in counting
apart from weekdays, and
therefore,
a.
A
Saturday
b.
A
Sunday
c.
A
Public holiday
d.
Any
other day that the Courts in
Ghana cannot sit (e.g. during
strike by Judicial Service
workers or during a strike by
any other stakeholders that will
prevent the Court from sitting).
e.
During
periods of civil unrest in a
manner that prevents the Court
from functioning ordinarily.
In any of such
circumstancesarrangements must
be made for the Courts to sit on
such days to ensure due
compliance with Article 14(3).
3. During other times and
occasions such as strikes,
public demonstrations and civil
unrestwhen the Courtsmight be
unableto sit, accused persons
and suspects in custody would
not have access to the Courts
within the 48 hours, and their
constitutional rights would be
compromised. Consequently, there
is the need for an
interpretation that enables the
person in custody to apply to
the Judge directly otherwise
than in formal Court
proceedings, thus the
prosecution and defence must be
enabled to meet at a venue
otherwise than in the formal
Court. The Plaintiff cites as an
example, the creation of Courts
in the Nsawam prison as part of
the Justice For All Programme.
4.
Since Article 14(4) abhors
unreasonable delay in trials
especially for those accused
persons who are in custody, the
accused persons who are in
custody should generally have
their cases prioritised and
heard ahead of those not in
custody.
The Plaintiff makes reference to
cases such as Kpebu (No. 2) v
AG (supra),
Ocansey& Anor. v EC [2010]
SCGLR 575 at 608 and
Kpebu
(No. 1) v A-G J1/7/2015
on constitutional interpretation
in respect of human rights, and
calls on the Court to discount
any argument that the grant of
his reliefs would inconvenience
some Judicial Officers, as the
Court will only be carrying out
the wishes of the framers of the
Constitution by recognizing the
right of the arrested person
/suspect, which right, the Court
did not create.
The Plaintiff also contends that
even though in the case of
Mornah
v Attorney-General [2013]
SCGLR [Special Edition] 502
(hereinafter referred to as
‘Mornah’ or ‘the Mornah case’)
it was held that the Court
cannot be opened for business on
any day other than a normal
weekday because the Courts are
part of the territory of Ghana,
that decision cannot be read so
as to foreclose his submissions
for the Courts to sit on a
public holiday because Article
14 (3) of the Constitution did
not form part of the subject
matter of the Mornah
case. He submits, in the
alternative, that if this Court
is persuaded that any court
sittings on a public holiday in
fulfilment of Article 14 (3)must
still be subject to an Executive
Instrument, then the
Attorney-General ought to be
ordered to take steps to secure
the same, pursuant to section 6
of Act 601, from the President
within a certain time frame
after judgment of this case.
According to the Plaintiff,
besides the dictates of the
Constitution, it is clear that
Ghana has similar international
obligations, which require that
a person in custody must be
brought to Court within 48 hours
of arrest and that, as Ghana
strives to improve other
infrastructure, the Judiciary
should also improve
access to
the Court in line with the
Constitution as part of the
Judiciary’s contribution to
Ghana’s development.
Summary of
Defendant’s Legal Arguments
The Defendant
acknowledges that Article 14 of
the Constitution guarantees the
right to personal liberty of
every person in Ghana but
provides exceptions under which
such rights could be curtailed,
i.e., in the execution of an
order of a Court or on
reasonable suspicion of an
offence having been committed.
The Defendant further
acknowledges that Article 14
does notallow for an indefinite
curtailment in the form of
pre-trial detention, and that
the Constitution, therefore,
compels law enforcement agencies
to bring any person arrested,
with or without warrant, before
a Court within 48 hours of such
arrest. The Defendant, however,
submits that:
1.
Whilst
the Constitution did not
expressly exempt any day and any
period in reckoning the 48
hours, the enforceability of
Article 14 (3) is dependent on
the accessibility of the Court.
Therefore, a declaration to the
effect that an arrested person
is to be brought before Court
regardless of what day or time
of the day the 48 hours of
arrest expires, would be
unreasonable in the face of
practical realities.
2.
The Court must apply the modern
purposive approach to
interpretation to ascertain the
true purpose of the statute as
has been reinforced in the
Memorandum to the Interpretation
Act, 2009 (Act 729) and also
section 10 (4) of the Act which
calls for interpretation of a
provision of the Constitution or
other law in a manner that,
amongst other things, provides
forthe rule of law and the
values of good governance,
advances human rights and
fundamental freedoms and avoids
technicalities and niceties of
form and language which defeats
the purpose and spirit of the
Constitution and the laws of
Ghana. Due regard must be given
to cases such
asMekkaoui
v Ministry of Internal Affairs(1981)
GLR 664 SC at 719 and
Ransford France (No. 3) v
Electoral Commission and AG
(No. 3) [2012] 1 SCGLR 705,
since applying a literal meaning
will lead to absurdity because
the existing state of affairs in
the Ghanaian context is such
that, there are certain times
and days which fall outside the
ordinary Court days and times.
3. No
reasonable inference should be
drawn from the provisions of
Article 14 of the Constitution
that the framers of the
Constitution intended the
reckoning of the 48 hours
included times and days when
courts of the land do not, or
cannot, sit to do business such
as weekends, public holidays,
times outside the normal working
hours and periods of civil
unrest. Accordingly, it is
sufficient that a person under
arrest, who is not placed before
a court, due to the fact that
the 48 hours expires on a
weekend, a public holiday or
during a period of civil unrest
is brought before the Court on
the next working day during
Court during normal working
hours. On the strength of
section 44 (5), (6) and (7) of
the Interpretation Act, 2009
(Act 729), therefore, the
situation does not call for the
setting up of 24-hour Courts,
although there as incidences of
abuse whereby some law
enforcement officers
deliberately arrest and keep
persons well over the 48 hours
under the guise that the Courts
do not sit on such days.
4.
The reliefs the Plaintiff seeks
from the Court pose practical
difficulties that would amount
to extraordinary circumstances
in the Ghanaian context, where
days and times when the Courts
are not accessible ought to
qualify as extraordinary
circumstance because Ghana does
not have mechanisms and systems
in place to ensure 24-hour Court
Services, including Judges
sitting elsewhere during periods
of civil unrest to hear unfiled
motions, as suggested by the
Plaintiff.
Rather, the
proper test to be applied in the
enforcement of Article 14 (3) is
whether or not there was
reasonable delay in putting the
arrested person before the Court
and it is the duty of law
enforcement agencies to justify
any delay by demonstrating the
existence of a bona fide
emergency or other extraordinary
circumstance that accounts for
the failure to put such an
arrested person before Court
within the constitutionally
mandated 48 hours.
5.
Although our Constitution does
not provide an exception to the
48 hour rule, this Court ought
to draw inspiration from
jurisdictions such as Nigeria,
South Africa and Kenya, whose
constitutions expressly create
exceptions, and declare that
where the 48 hours from the time
of arrest expires on a day that
the Court is unable to sit, the
affected person’s appearance
before the Court on the first
working day thereafter should be
deemed to have been duly done in
accordance with the
Constitution.
In addition,
the Defendant also submits that,
in the light of Article 19,
which mandates expeditious trial
for all persons charged with a
criminal offence, it would be
unfair, impracticable and also
create practical difficulties
for the Justice system for the
Court to direct that cases
involving persons in pre-trial
detention be prioritized over
persons on bail,. It is the
Defendant’s case that Article
14(4) has provided enough
safeguard in addressing the
issue of lengthy trials and this
protects all accused persons
whether in detention or on bail.
The Defendant
submits that there is nothing in
Article 14 (3) that prevents the
institution of public holidays,
neither does the provision under
section 4 of the Public Holiday
Act, 2001 (Act 601) detract from
the right to personal liberty,
particularly when the Act
provides an avenue for the
Courts to sit on public
holidays, by an executive
instrument from the President.
According to the Defendant, the
Act itself allows for a
situation where the President
can permit an organization,
including the Courts, to work on
holidays under section 6 thereof
which provides that:
“Where the
President is satisfied that it
is in the public interest to do
so, the President may by
executive instrument exempt a
class of business or a
particular business from section
4 (1).”
Citing the
Mornah case, the Defendant
submits that the inaccessibility
of the Courts on public holidays
does not constitute a breach of
Article 14(3) of the
Constitution.
The Defendant
concludes that, in making
declarations on Article 14(3)
and (4) of the Constitution, the
Court must be guided by the
practical realities or obstacles
which are unavoidable and do not
detract from the purpose of the
framers of the Constitution.
Analysis
Despite the
span of the Memorandum of Agreed
Issues and the scope covered by
both counsels’ submissions, it
is patently clear that there are
only 2 main issues properly
arising from this action and
these are:
1.
Whether or not upon a true and
proper interpretation of Article
14(3) of the Constitution the
unavailability of judicial and
Court Services, to persons under
arrest or in detention on
suspicion of criminal conduct,
on public holidays, weekends and
during events of civil unrest,
is in consonance with or is in
contravention of the
Constitution and
2.
Whether or not upon a true and
proper interpretation of the
Constitution, the trial of
accused persons who are in
pre-trial detention must take
precedence over trials of
persons who have been admitted
to bail.
The 2nd
issue, raises more of a question
of effective case management and
it requires no constitutional
declaration to develop the
requisite practices for ensuring
that, on a case by case basis,
matters such as applications for
bail are disposed of before
consideration of other
applications and proceedings in
substantive trials. What matters
is that such application or
matter is determined by the
Court that day. In general, this
is already the practice in a
majority of Courts, and ought to
be standardised by all
magistrates and judges, for
efficient trial management. We,
therefore, at this point dismiss
the 6th relief
claimed.
The 1st
issue, however, raises other
more pertinent questions:
a.
What is the intent and purpose
of Article 14(3)?
b.
What should be the method of
reckoning the 48 hours time
limit set by the Article?
c.
Are there any circumstances that
will justify an exception to the
48 hours time limit without
contravening the Constitution?
Article 14(3)
forms part of Chapter 5 of the
Constitution, which deals with
the Fundamental Human Rights and
Freedoms. The centrality of
these rights and freedoms in our
jurisprudence cannot be gainsaid
in any way, as confirmed by
Article 290, which includes the
entirety of the said Chapter
among the entrenched provisions
of the Constitution. It cannot
be amended except by a national
referendum of at 40% of eligible
voters on a bill to amend a
specified provision, and must be
passed by 75% of such voters. It
is also significant to note that
these rights, which are
enshrined in our Constitution,
are derived from an
internationally acknowledged
normative framework for the
protection of human rights that
harks back to the United Nations
Universal Declaration of Human
Rights, 1948. This instrument,
for the first time, enunciated a
body of rights and freedoms that
reflect the ethos of
multi-cultural origins common to
the very basic concept of being
human. Numerous treaties,
conventions, charters and
protocols have evolved and
continue to evolve from the
grounding principles set out in
this Declaration intended to
strengthen and better protect
specific groups (Children,
Women, the Youth, the Aged,
Refugees, etc.) or groups of
rights. These formal legal norms
include the International
Covenant on Civil and Political
Rights (1966), the African
Charter on Human and Peoples’
Rights (1986) and the African
Charter on the Rights and
Welfare of the Child (1990,
coming into force in 1999). All
these instruments uphold and
reinforce the principle that
there are certain rights which
are fundamental and inherent in
the very fact of being human;
they are not granted by any
political or royal act, they are
universal and adhere to every
human being, wherever he/she is,
and of whatever gender, religion
or social status. Included in
these inherent rights are the
right to life, the right to
personal liberty, the right to
hold opinions and religious
beliefs of one’s choice, etc.
All such rights are subject to
respect for the rights of
others, and to laws that are
necessary for assurance of a
just and peaceful society in
which rights may be enjoyed
equitably. It is in this spirit
that we have in our Constitution
Article 14(3), which protects
the right to personal liberty by
requiring that, even where such
rights are curtailed by lawful
means, the custodian is obliged
to bring the arrested or
detained person before a Court
of law within 48 hours of arrest
or detention, or release the
person conditionally or
unconditionally. This is clearly
the intent and purpose of
Article 14(3). When the person
arrested or detained is brought
before a court of law within the
48 hours, the court is afforded
the opportunity to make timely
determinations on issues
concerning personal liberty
arising therefrom, so as to
prevent the infraction or
continued infraction of such
rights, because, in the final
analysis, it is only the decree
of a court of competent
jurisdiction that carries power
to deprive a person of his/her
liberty for a period which
longer than that stipulated by
the Constitution.
The language
of Article 14(3) is clear and
unambiguous and, in our view,
“within 48 hours” means exactly
that. Although it would have
been an easy matter for the
drafters of the Constitution to
have included in the provision
words such as those the
Defendant has invited us to read
into Article 14(3), the fact
remains that the provisions
contain no such words of
exception and no matter how
attractive the constitutional or
statute law of other
jurisdictions might seem to the
Defendant, we cannot adopt or
use it as an interpretative tool
when our superior law, the
Constitution in so clear in its
language. We are, therefore,
bound to give effect to the
clear and unambiguous intentions
of the framers of the
Constitution by giving the words
their plain and ordinary
meaning. This is all the more so
when we take due note of the
option afforded to the
custodian/police to release the
arrested or detained person
without bringing him/her before
a Court, conditionally or
unconditionally. Furthermore, we
are not at all convinced by the
Defendant’s assertion that
giving effect to the plain or
the ordinary meaning of article
14(3) would result in absurdity
or would make it unworkable or
incongruous and we reject the
same. Before we dilute the
effect of the article, we need
more convincing indices than
assertions of inconvenience,
incongruity or difficulty. Human
life and liberty are too
precious.
Turning to
the provisions of the Public
Holidays Act, we need to
juxtapose the same against the
dictates of Article 14(3). We
need to weigh the rights and/or
interests protected by the said
Article against those covered by
the Act. When we do that, the
paramountcy of the protective
cover of constitutional
provisions overwhelms whatever
interests are served by the Act;
in other words, a human rights
protective cover, versus social,
recreational and/or celebratory
interests. Furthermore, any
public interest served or
intended to be served by section
4 of the Act for the observance
of public holidays are
subservient to the human rights
enshrined in Article 14(3) of
the Constitution.
The decision
in the Mornah case, to the
effect that the Courts cannot be
expected to sit on statutory
public holidays, could only
represent the general position,
as the Court in the said case
was not called upon to enforce
Article 14(3) of the
Constitution.That provision
never formed part of the core
matter before the Court, and the
decision cannot amount to a
precedent of any relevance to
the matter herein. It is,
therefore, irrelevant to or at
best distinguishable from, the
determination of this case.
Consequently,
it becomes clear that a specific
exception ought to have been
made under section 4 of Act 601
enabling the sitting of the
Court on public holidays to
determine issues concerning
personal liberty. Indeed, and
all the better, the
determination of whether or not
a court should sit on a public
holiday should have been
excepted from Act 601 and
properly left to the discretion
of the Chief Justice. Hence, to
the extent that section 4 of Act
601 has the tendency to bar, or
effectively bars, the courts
from sitting on public holidays
to determine issues of personal
liberty, pursuant to the right
enshrined in Article 14(3), it
is unconstitutional.
In order to
make section 4 of Act 601
compliant with Article 14(3) of
the Constitution, this Court
hereby exercises its power of
rectification and exempts ‘Court
Services’ by the addition to the
exemption list in subsection 3
after paragraph (k) the
following:
“(l)
Court
Services for the determination
of issues concerning the
personal liberty of any person.”
(See the case
of
Sasu v Amua-Sakyi
[1987-88] GLRD 45, wherein
the Court inserted into section
3(2) of the erstwhile
Courts
Act, 1971 (Act 372) as
amended by PNDCL 372, the words
“with leave of the Court of
Appeal” so as to make the
section intelligible.)
We declare
further that, any rights
guaranteed under a statute, such
as section 42 of the Labour
Act, 2003 (Act 651),
regarding weekly rest periods,
are subservient to the rights
enshrined under Article 14(3) of
the Constitution.
In the same
vein, to the extent that
sub-section 3 of section 35 of
Act 651 and Order 79 Rule 2(3)
of C.I. 47 bar the Courts from
sitting on public holidays and
weekends to determine issues of
personal liberty under Article
14(3), the sub-section and the
Rule are unconstitutional.
Section 35(3)
of Act 651 is hereby rectified
by the addition to the exemption
listafter paragraph (b) the
following:
“(c)
regarding Court Services for the
determination of
issues
concerning the personal liberty
of any person.”
Order 79 Rule
3(2) of C.I. 47 is hereby
rectified by the insertion of
the following after “Chief
Justice”:
“and except
for the determination of issues
concerning the personal liberty
of any person”
We reiterate
that the constitutional
expectation is that a person
must not lose his/her liberty
for more than 48 hours unless
that person has been brought to
a Magistrate or a Judge and the
issue of his/her personal
liberty has been determined. The
interest being protected under
Article 14(3) of the
Constitution must override all
other considerations such as
pre-existing statutory rights,
inconvenience, any attendant
administrative costs, etc.
Thus, even
though the Courts are generally
to observe statutory public
holidays in terms of the
decision in the Mornah case
or generally enjoy weekly
rest periods under section 42 of
Act 651, etc., the provisions of
Article 14(3) ought to be
enforced as a matter of
constitutional priority. The
issuance of a presidential
Executive Instrument under
section 6 of Act 601, as
submitted by the Plaintiff, is
not a solution, since such an
instrument is not required for
the enforcement of a
constitutional provision, such
as Article 14 (3).
To assure
enforcement of requirements of
Article 14(3),
certain
Courts across the country
(mainly District Courts) must be
designated to sit additionally
as special applications Courts
on public holidays, etc., at
such places and times as the
Chief Justice may decide, to
deal with issues pertaining to
personal liberty, and
accordingly, the necessary
arrangements must be put in
place for the effective
operationalisation of those
constitutional provisions.
Indeed, as is
evident, it is for a very good
reason that the law, per section
45(1) of
the
Courts Act, 1993 (Act 459)
requires that, at least, one
District Court be established in
each District of Ghana.
Furthermore, the provisions of
Section 12(3)(h) of
the Local
Governance Act, 2016 (Act 936)
were enacted to ensure due
performance of magisterial
responsibility, and for this
reason, the District Court
Magistrate must be resident and
constantly available in the
magisterial District. This
clearly underscores the need for
Assemblies to comply strictly
with their statutory obligation
to provide Courthouses and
residences for Judges and
Magistrates throughout Ghana,
for the assurance of access to
justice for all the people of
Ghana, wherever they may reside
and wherever they may find
themselves arrested, detained or
otherwise restrained by the
Police.
Additionally,
it is essential that every unit
of the Police Service of Ghana
become aware of the need to
comply with the spirit of
article 143)(b), which empowers
the police to release an
arrested person. Our
understanding of this is that,
having arrested a person, there
is nothing that compels the
police to hold on to that person
and certainly is there is no
possibility of that person being
brought before a court within
the 48 hours, he/she ought to be
released.
Thus, as a
cogent example,
if a
person is arrested and detained
or restrained by the police in
the evening of Maundy Thursday
there can be no justification to
hold him/her until the Tuesday
after Easter Monday. The police
have the power, and ought, to
release the person on whatever
reasonable condition/conditions,
such as that he/she reports
daily to the unit and appears in
court the first working day or
any other date, as they will
determine.
Conclusion
The
expression “within forty-eight
hours” in Article 14(3) of the
Constitution includes all days –
public holidays, weekends,
periods of strike action or
civil unrest, subject to the
reasonable assurance of the
safety and security of Judicial
Officers and Service Staff.
Court Services must be available
on the aforementioned days to
determine issues pertaining to
personal liberty, in due
compliance with Article 14(3) of
the Constitution.
There is the
need for the necessary
administrative adjustments to be
made to make it possible for the
48-hour rule to be completely
complied with.
Orders
In order to
effectively activate the
provisions of Article 14(3) of
the Constitution, therefore, the
following orders are hereby
made:
1)
The Chief Justice must, within
six (6) months of this judgment,
designate in each Metropolitan,
Municipality and District of
Ghana such number of Courts, as
may be necessary in the
circumstance, to sit on public
holidays, weekends and periods
of civil unrest, where the
safety of the Judge/Magistrate,
Court Staff and Court Users can
be assured, to determine issues
pertaining to personal liberty.
2)
During periods any legal or
illegal strike action, which
affects the normal operations of
courts, the Chief Justice must
put in place such measures for
the determination of issues
pertaining to personal liberty,
including the holding of
proceedings in the chambers or
residence of the
Judge/Magistrate, etc., as may
be necessary under the
circumstances.
3)
The Judicial Secretary must,
within six (6) months, make the
necessary arrangements and
provisions for the determination
of rates for overtime work and
payment of same to
Judges/Magistrates and Staff who
will be affected, in accordance
with section 35 of the Labour
Act, 2003 (Act 651) and
regulation 23(3) of the Judicial
Service Regulations, 1963 (L.I.
319).
4)
The Director of the Judicial
Training Institute (JTI) must,
within six (6) months, ensure
that all Judges/Magistrates and
Staff of the Judicial Service
are duly sensitized to the
optimal operationalisation of
Article 14(3) of the
Constitution.
5)
The Inspector-General of Police
must, within six (6) months,
ensure that Police Prosecutors
and Investigators are duly
sensitized to:
i)
the operationalization of
Article 14(3) of the
Constitution;
ii)
the fact that completion of
investigation into the matter
for which a person is arrested
or detained is not a requirement
for processing that person to
Court under Article 14(3), and
accordingly, the carrying out of
investigation into the case is
not a legitimate justification
for failure to bring that person
before a court within 48 hours
of the arrest or detention;
iii)
the fact that a person arrested
or detained must be brought
before a court as soon as the
minimum paper work necessary for
bringing that person before
Court under Article 14(3) is
completed, without the need to
wait for the exhaustion of the
48 hours.
iv)
the fact that the police may suo
motu release an arrested person
conditionally or
unconditionally, at any time
after arrest, even within the 48
hours.
So Ordered.
S. A.
B. AKUFFO
(CHIEF
JUSTICE)
J. ANSAH
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
N. S.
GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
PROF. N. A.
KOTEY
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
MARTIN KPEBU
APPEARS IN PERSON FOR THE
PLAINTIFF.
EVELYN
KEELSON (MRS), CHIEF STATE
ATTORNEY WITH RICHARD GYANBIBY,
SENIOR STATE ATTORNEY AND
PENINAH ASAH DANQUAH (MRS),
SENIOR STATE ATTORNEY LED BY
GLORIA AKUFFO (MS),
ATTORNEY-GENERAL FOR THE
DEFENDANT. |
