Constitutional law - Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30) as amended by
the Criminal Procedure Code
(Amendment) Act 2002, (Act 633)
- Whether or not section 96(7)
of the contravenes Articles
15(2) and 19(2)(c) of the 1992
Constitution and is therefore
null, void and of no effect.
HEADNOTES
Counsel for the plaintiff began
his arguments by reference to
Article 19(2)(c) of the
Constitution which presumes that
a person is innocent until he is
proven guilty or has pleaded
guilty. This affirms the
innocence of a person charged
with an offence until the court
has found him to be guilty. He
submitted that bail was directly
linked to individual liberty
which is guaranteed by Article
14 of the Constitution. Counsel
submitted that “the law on bail
is of immense importance in the
criminal administration of
justice and the courts and the
police may use such powers to
restrict the liberty of a person
who is accused of some offence.
This restriction on the liberty
of the individual as an accused
person is susceptible to abuse
particularly on the part of the
law enforcement agencies and it
is on the basis of checking the
abuses and excesses that the
Constitution 1992 has itself set
the parameters upon which the
liberty of persons may be
curtailed pending their
conviction or otherwise. This is
in compliance with the cardinal
principle of criminal
jurisprudence in common law
jurisdictions and which is
constitutionalized in Article
19(2)(c) which treats an accused
as innocent until the contrary
is proved.” Counsel then
proceeded to argue that bail has
two main purposes or objectives.
The first is to ensure the
accused makes himself available
at the subsequent proceedings
whilst he is not in custody. The
second one is “to ensure the
safety of the community pending
trial of the accused person….”
He argued that the second
objective is “tantamount to
punishing the accused person
even before trial and it is on
the basis of this that s. 96(7)
of the Criminal Procedure Act
(as variously amended) was
enacted Counsel then made this
important assertion, in relation
to his case, that “the no-bail
provision as captured in section
96(7) of…..Act 30 as amended
by……..Act 633, has raised
constitutional challenges
particularly when viewed against
the automatic presumption of
innocence until proven guilty or
confession of commission of the
crime
HELD
To conclude I uphold the claim
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, void
and of no effect. In my view
article 14(1)(g) does not
justify the continued existence
of section 96(7) of Act 30, as
amended. Indeed in so far as
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 to that extent is
null, void and of no effect. And
in so far as the prohibition
imposed by section 96(7) of Act
30 does not fall within the
exceptions in Article 14(1) it
is inconsistent with it and is
thus null, void and of no
effect. Section 96(7) of Act 30
is accordingly struck down. I do
hereby reject the claim founded
on Article 15(2) of the
Constitution for reasons
explained above.
DISSENTING OPINIONS
The crucial power to deprive a
person of his personal liberty
is a judicial act which decision
is taken after due process in
accordance with rules of
procedure set out in Section 96
of Act 30. Section 96(7) of Act
30 which restricts the grant of
bail in some specific offences
like murder, terrorism,
narcotics and rape is consistent
with article 14 and article 21
of the Constitution. The problem
is not the wording of theSection
96(7) of Act 30 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). This is not a sound
reason to strike down section
96(7). Finally the calls for
striking down of section 96(7)
of Act 30 were not made on any
solid legal arguments except the
sweeping invocation of the
supremacy of the Constitution
and of fundamental human rights
as a catch-all defence of the
rights of persons who have
infracted the criminal law and
the rights and liberties of
others in the community and
society. From the foregoing, I
hold section 96(7) of Act 30
does not contravene article 14
(1), 15 (2) and 19(2) (c). I so
declare. From the foregoing, all
the reliefs sought by the
Plaintiff are denied.
STATUTES REFERRED TO IN JUDGMENT
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
Criminal Procedure Code
(Amendment) Act 2002, (Act 633)
1992 Constitution Articles 15(2)
and 19(2)(c)
Criminal Procedure (Scotland)
Act, 1995. section 24(1)
Narcotic Drugs Control,
Enforcement and Sanctions) Law,
1990 (P.N.D.C.L. 236),
Interpretation Act, 2009, Act
(792)
Courts Act, 1993 (Act 459).
Anti-Terrorism Act, Act 762.
Criminal Procedure Code
(Amendment) Decree, 1975 (NRCD
309)
Bail Act of 1976 applicable in
England and Wales Schedule 1,
Part 1
Criminal Procedural Code of the
Czech Republic,
Section 61A of the Criminal
Procedure Code of the State of
Bophuthatswana
The Statute of Westminster,
Prisons and Bail Act, 1275 (3
Edw. 1 c. 15),
Criminal Law Act, 1826 (7 Geo.
4, c. 64)
Court of Kings Bench Act, 1835
(5 & 6 Will. 4, c. 33), s. 3
The Bail Act, 1898 (61 & 62
Vict.,c. 7)
US Federal laws 18 U.S.C.
§ 3142(f)
CASES REFERRED TO IN JUDGMENT
Gorman v. Republic (2003-2004)
SCGLR 784.
Twum v. Attorney-General (2008)
7 M.L.R.G.
Akuffo-Addo& others v.
Quashie-Idun (1969) GLR 667
Dogbey v. The Republic (1976) 2
GLR 82
Brefor v.The Republic (1980) GLR
679..
Owusu v The Republic [1980] GLR
460
BortierQuaye v E C &
Attorney–General [2012] SCGLR
433
Nana Hyeaman 11 v Osei and
Others [1982-83] GLR 495,
Eshun and Another v Poku and
Others [1989-90] 2 GLR 572
Appiah v Biani [1991] 1 GLR
155,
Asare v. Attorney –General
[2003-2004] 2SCGLR 823;
Adofo and Others v
Attorney-General and Another
[2003-2005] SGLR 239
Republic v High Court, Accra; Ex
Parte Yalley (Gyanae and Another
Interested Parties [2007-2008] 1
SCGLR 512.
Prah and Others v The Republic
[1976] 2 GLR 278
Seidu v Republic [1978] 1 GLR
65
DodzieSabbah v The
Republic[2009] SCGLR 728
Republic v Registrar of High
Court; Ex-parte Attorney-General
[1982-83] GLR 407
Republic v Court of Appeal, Ex
parte, Attorney-General (Frank
Benneh) case [1998-99], SCGLR
559, at 568,
Abiam v The Republic [1976] 1
GLR 270
Boateng v Republic, [1976] 2 GLR
444,
Dogbe v The Republic [1976] 2
GLR, 82
Gyakye v Republic [1971] 2 GLR
280,
Republic v Arthur, [1982-83] GLR
249,
Okudzeto Ablakwa (No3) & another
[2013-2014] 1 SCGLR 16.
Bilson v. The Attorney- General
[1993-94] SCGLR 104 at 108
Owusu v. The Republic [1980] GLR
460
Bosso v The Republic [2009]
SCGLR 420;
Frimpong alias Iboman v The
Republic, [2012] 1 SCGLR 297;
Frimpong Badu v Republic
Criminal Appeal No J3/11/2015,
11 November 2015
Isa v The Republic [2001-2002]1
G L R 128,
Okoe v the Republic [1976] 1 GLR
80.
Boateng v The Republic [1976] 2
GLR 444.
AsarevDzeny[1976] 1 G.L.R, 473,
480
Republic v Taabere[1985] LRC
(Crim) 8
Coffin v. United States, 156
U.S. 432 (1895)
Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186 (1946)
Wright v. Henkell, 190 U.S. 40
(1903
United States v. Kin-Hong, 83 F.
3d, 523 (1st Cir
1996);
Martin v. Warden, 993 F. 2d. 824
(11th Cir 1993);
Salerno v. United States, 878 F.
2d 317 (9th Cir.
1989).
A and others v. Secretary of
State for the Home Department
(2004) UKHL 56;
MB, Re (2006) EWHC 1000 (Admin)
State of Rajasthan, Jaipur v.
Balchand @ Ballay (1977) AIR
2447; (1978) SCR(1) 535.
Smith v. Attorney-General,
Bophuthatswana (1984) 1 S.A.
196(B)
Pretty v. United Kingdom; case
no. 2346/02 (2002) ECHR 423
dated 29 April 2002.
Bock v. Germany 12 EHRR 1990 247
delivered on 29 March 1989.
Republic v Milton Kabulit& 6
Others [2011] eKLR
Lincoln College case, (1595) 3
Co. Rep. 586
Smith’s case (In re London
Marine Insurance Association
(1869) LR 4 Ch. App. 611 at
614.)
Bywater v Branding (1828) 7 B &
C 643 at p. 660.
Rein v Lane (1867) LR 2 QB 144
at p. 151.
Exp. Sepulchre’s (1864) 33 LJCH
372 at 375.
Minister of Health v Stafford
Corporation, 1952 ch.730
Wright v. Henkell 190 U.S. 40
(1903)decided on 1 June 1903;
United States v. Kin-Hong, 83 F.
3d, 523 (1st Cir
1996);
Martin v. Warden, 993 F. 2d. 824
(11th Cir 1993);
A and others v. Secretary of
State for the Home Department
(2004) UKHL 56; MB, Re (2006)
EWHC 1000 (Admin).
R v Scaife (1841)5 JP 406;
United States v. Salerno, 481
U.S. 739 (1987),
Bell v Director of Public
Prosecution [1985] 2 All ER 585
Mungroo v R [1991] 1WLR
Barker v Wingo [1972] 406 US
514, US.”
R v Broome [1851], 18 L.T. O.
S.19
R v Scaife (1841), 9 Dowl. 553;
(2)
Ex parte Tomanzie (1885), 2
T.L.R. 205.
Liversidge v Anderson [1941] 3
All ER 338.
Dokubi –Asariv Fed. Rep. of
Nigeria (2007)12 NWLR (Pt.1048
Gethardyv Brown (1985) 57 ALR
472,
R v Humphrey [1975] 2 All ER
1023, 1026.
Lazarus-Barlow Estates Co Ltd v
Regent Estates Ltd [1949] 2 All
E. R. 118,
BOOKS REFERRED TO IN JUDGMENT
Bail, A Matter Of Right: Not To
Be Denied On Ground Of
Nationality, by Bijoylashmi Das,
Universal Declaration of Human
Rights (UDHR) (Article 11(1),
International Covenant on Civil
and Political Rights (ICCPR)
(Article 14 (2)
African Charter on Human and
People’s Rights (7b).
The right to Bail, whose Right?
Statute, Judge made law and the
1992 Constitution”, (and
published in the January-June
2014 Vol. 3, No 1, Banking and
Financial Law Journal of Ghana,
Understanding Statutes Justice
V.C.R.A.C Crabbe,
A History of the Criminal Law of
England (1883) Vol. 1, p. 239:
Archbold, Criminal Pleading,
Evidence and Practice in
Criminal Cases (36th ed.), pp.
71-72
Dr. S.Y. Bimpong-Buta in his
book The Role of the Supreme
Court in the Development of
Constitutional Law in Ghana, at
pages 371 to 376
DELIVERING THE LEADING JUDGMENT
BENIN
JSC
DISSENTING
ADINYIRA (MRS)
GBADEGBEJSC
COUNSEL
BRIGHT OBENG MANU ESQ FOR THE
PLAINTIFF
WILLIAM KPOBI ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT
JUDGMENT
BENIN, JSC
The plaintiff herein seeks a
single relief from this court,
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)
contravenes Articles 15(2) and
19(2)(c) of the 1992
Constitution and is therefore
null, void and of no effect.
In order to appreciate the
ensuing discussion, it is
necessary at this early stage to
set out the relevant provisions
of Act 30 as amended, as well as
the Constitution, 1992 upon
which this action is founded.
Section 96(7) of Act 30 as
amended by Section 7 of Act 633
and also as amended by section
41(1)(a) of the Anti-Terrorism
Act, 2008 (Act 762) reads:
A court shall refuse to grant
bail-
(a)
in a case of treason,
subversion, murder, robbery,
hijacking, piracy, rape and
defilement or escape from lawful
custody , or acts of terrorism;
(b)
where a person is being held for
extradition to a foreign
country.
The relevant provisions of the
Constitution read:
Article 15(2): No person shall,
whether or not he is arrested,
restricted or detained, be
subjected to
(a)
torture or other cruel, inhuman
or degrading treatment or
punishment;
(b)
any other condition that
detracts or is likely to detract
from his dignity and worth as a
human being.
Article 19(2)(c): A person
charged with a criminal offence
shall,……….be presumed to be
innocent until he is proved or
has pleaded guilty.
When they filed their statement
of case the defendant argued
that by virtue of Article 14(1)
of the Constitution the liberty
of the individual could be
curtailed in certain situations,
therefore section 96(7) of Act
30 had this constitutional
backing. The defendant therefore
set down Article 14(1) in the
memorandum of issues whether
section 96(7) of Act 30 was
inconsistent with it. The court
consequently adopted the issue
as formulated by the defendant,
whether section 96(7) of Act 30
as amended by Act 633 is
inconsistent with Articles
14(1), 15(2) and 19(2)(c) of the
Constitution. The said Article
14(1) provides that:
Every person shall be entitled
to his personal liberty and no
person shall be deprived of his
personal liberty except in the
following cases and in
accordance with procedure
permitted by law-
(a)
in execution of a sentence or
order of a court in respect of a
criminal offence of which he has
been convicted; or
(b)
in execution of an order of a
court punishing him for contempt
of court; or
(c)
for the purpose of bringing him
before a court in execution of
an order of a court; or
(d)
in the case of a person
suffering from an infectious
disease, a person of unsound
mind, a person addicted to drugs
or alcohol or a vagrant, for the
purpose of his care or treatment
or the protection of the
community; or
(e)
for the purpose of the education
or welfare of a person who has
not attained the age of eighteen
years; or
(f)
for the purpose of preventing
the unlawful entry of that
person into Ghana, or of
effecting the expulsion,
extradition or other lawful
removal of that person from
Ghana or for the purpose of
restricting that person while he
is being lawfully conveyed
through Ghana in the course of
his extradition or removal from
one country to another; or
(g)
upon reasonable suspicion of his
having committed or being about
to commit a criminal offence
under the laws of Ghana.
Arguments by the plaintiff
Counsel for the plaintiff began
his arguments by reference to
Article 19(2)(c) of the
Constitution which presumes that
a person is innocent until he is
proven guilty or has pleaded
guilty. This affirms the
innocence of a person charged
with an offence until the court
has found him to be guilty. He
submitted that bail was directly
linked to individual liberty
which is guaranteed by Article
14 of the Constitution. Counsel
submitted that “the law on bail
is of immense importance in the
criminal administration of
justice and the courts and the
police may use such powers to
restrict the liberty of a person
who is accused of some offence.
This restriction on the liberty
of the individual as an accused
person is susceptible to abuse
particularly on the part of the
law enforcement agencies and it
is on the basis of checking the
abuses and excesses that the
Constitution 1992 has itself set
the parameters upon which the
liberty of persons may be
curtailed pending their
conviction or otherwise. This is
in compliance with the cardinal
principle of criminal
jurisprudence in common law
jurisdictions and which is
constitutionalized in Article
19(2)(c) which treats an accused
as innocent until the contrary
is proved.”
Counsel then proceeded to argue
that bail has two main purposes
or objectives. The first is to
ensure the accused makes himself
available at the subsequent
proceedings whilst he is not in
custody. The second one is “to
ensure the safety of the
community pending trial of the
accused person….” He argued that
the second objective is
“tantamount to punishing the
accused person even before trial
and it is on the basis of this
that s. 96(7) of the Criminal
Procedure Act (as variously
amended) was enacted.”
Counsel then made this important
assertion, in relation to his
case, that “the no-bail
provision as captured in section
96(7) of…..Act 30 as amended
by……..Act 633, has raised
constitutional challenges
particularly when viewed against
the automatic presumption of
innocence until proven guilty or
confession of commission of the
crime……” In respect of this
submission counsel made
reference to this court’s
decision in the case of
Gorman v. Republic (2003-2004)
SCGLR 784. Counsel has
serious issues with parts of
this decision. In short he urged
the court to depart from that
decision. Indeed counsel dwelt
at length on this decision which
in his view should not be
allowed to stand. I will return
to it in a moment.
Arguments by the defendant
After a brief summary of the
case set up by the plaintiff,
counsel for the defendant
submitted “that the Constitution
itself makes it clear that the
refusal to grant bail to a
suspect/accused if exercised
judiciously shall not be held to
be inconsistent with or in
contravention of the
Constitution.” He relied on
these constitutional provisions:
Articles 14(1)(g) and 21(4)(a)
and (b). Article 14(1) has been
quoted above but for purpose of
emphasis I reproduce 14(1)(g):
(1)
Every person shall be entitled
to his personal liberty and a
person shall not be deprived of
his personal liberty except in
the following cases and in
accordance with procedure
permitted by law:
(g) upon reasonable suspicion of
his having committed or being
about to commit a criminal
offence under the laws of Ghana.
Article 21 also provides in
relevant terms that:
(4) Nothing in, or done under
the authority of, a law shall be
held to be inconsistent with, or
in contravention of, this
article to the extent that the
law in question makes provision-
(a) for the imposition of
restrictions by order of a
court that are required in
the interest of defence, public
safety or public order, on the
movement or residence within
Ghana of any person; or
(b) for the imposition of
restrictions, by order of a
court, on the movement of
residence within Ghana of any
person either as a result of his
having been found guilty of a
criminal offence under the laws
of Ghana or for the purposes of
ensuring that he appears before
a court at a later date for
trial for a criminal offence or
for proceedings relating to his
extradition or lawful removal
from Ghana…. (Emphasis
supplied)
On the strength of the
above-cited provisions, counsel
for the defendant submitted that
“the declaration sought by the
plaintiff cannot be entertained;
the claim or relief sought by
him is itself unconstitutional”
Counsel made reference to
section 96(7) of Act 30 and said
it is a mandatory requirement
that the court shall refuse to
grant bail in the offences and
situations described therein.
That being so it overrides any
alleged violation of the
principle of natural justice as
held in cases like Twum v.
Attorney-General (2008) 7
M.L.R.G. and Akuffo-Addo&
others v. Quashie-Idun (1969)
GLR 667.
Counsel’s view was that as long
as both Act 30, section 96(7)
thereof and the Constitution per
Articles 14(1) and 21(4)(a) and
(b) allow the detention of
persons during trial, the
argument of the plaintiff which
border on morality is untenable.
Let me begin with a reference to
the case of Gorman v. Republic,
supra, hereafter called the
Gorman case. Counsel quoted a
portion of that decision at page
795 of the report and based a
lot of his argument on it. For a
better understanding I will
reproduce the said extract from
the decision, per Modibo Ocran,
JSC, who read the opinion of the
court: “Undergirding our
principles for decision on
applications for bail is the
effective enforcement of our
criminal law guided by due
process considerations, which
constitute the procedural
aspects of the commitment to
protect liberty of the
individual. A true system of
criminal justice must, indeed,
reflect both aspects of criminal
jurisprudence. If not, one of
two consequences will follow,
either the law enforcement
agencies of the State ride
roughshod over the rights of the
accused, or criminals would have
a field day in the system as
they roam the streets in full
liberty and with contempt for
the efficacy of our criminal
enactment”
This was a general statement of
principles that the court
outlined. Counsel for the
plaintiff took serious exception
to the use of the word
‘criminals’ in the statement.
His view was that until proven
guilty no person was a criminal,
which I think is a true
statement of the law. A careful
reading of the statement in
question would show that the
learned justices were referring
to accused persons, which
expression they had used in the
immediately preceding line. It
could never be attributed to the
court that it did not know that
persons under investigation or
in court for trial and who have
not been convicted are not
criminals. The expression
‘criminals’ as appearing in the
decision should be understood in
the context in which it was
employed. The court was talking
about bails for persons facing
trial, so the expression must be
construed to mean accused
persons. To emphasize this
point, the court was dealing
with ‘accused’ persons and had
used both ‘accused’ and
‘criminals’ in the same
sentence; therefore the court
was not talking about convicted
persons, that is criminals, but
accused persons who had not been
convicted and thus not
criminals.
Counsel also had issues with
another pronouncement by the
court in the Gorman case. At
page 797 the court delivered
itself in these words: “Basing
ourselves on articles 14(1) and
(3) and to some extent on
article 19(2)(c) of the 1992
Constitution, we hold that there
is a derivative constitutional
presumption of grant of bail in
the areas falling outside the
courts’ direct duty to grant
bail under article 14(4).
However, this by itself is not
dispositive of the legal problem
of bails, for it seems clear
that this presumption is
rebuttable. Any other reading of
the Constitution would lead to
the untenable conclusion that
every accused person has an
automatic right to bail under
our Constitution. This
presumption is, for example,
rebutted in cases where a
statute specifically disallows
bail based on the nature of the
offence, such as the situations
outlined in section 96(7)
of…….Act 30……….”
In counsel’s view this decision
raises some challenges to the
right to liberty of the
individual which is guaranteed
by the Constitution. Counsel’s
view was that the presumption of
innocence is not rebuttable
unless a person has been
pronounced guilty of an offence
after a hearing or upon a plea
of guilt. Secondly, counsel’s
view is that the constitutional
presumption of innocence cannot
be taken away by a statute, as
the decision implies.
Indeed when one reads the Gorman
decision further, one gets the
impression that the court’s
statement under discussion was
not indicative of what counsel
attributes to it; it was part of
the general principles that have
been applied in questions of
bail that the court was talking
about. Unless that is the
understanding, one would find it
hard to reconcile the viewpoint
that section 96(7) of Act 30 is
one of those instances where the
presumption of innocence is
rebutted with what the court
said subsequently. I am here
referring to what the court said
at pages 801-802, namely: “Thus,
even in the case of offences
mentioned in section 96(7) of
the Criminal Procedure Code,
bail must be granted if there is
no trial within a reasonable
time. Justice Brobbey, in his
Practice & Procedure in the
Trial Courts & Tribunals (Vol 1,
2000 p. 466), writes: ‘Since
the Constitution is the
fundamental law of the land, to
the extent that article 14(3)
and (4) mandate bail for all
offences while Act 30, s 96(7)
excepts the grant of bail in
murder cases, etc the latter is
deemed to have been repealed by
the former by reason of the
inconsistency. This was the view
taken in Dogbey v. The Republic
(1976) 2 GLR 82 and Brefor v.The
Republic (1980) GLR 679. There
is no doubt that the latter view
backed by the two cases is more
accurate.’ This court is in
entire agreement with Justice
Brobbey’s opinion”
It should be pointed out that
this last statement is an
endorsement of the view that in
so far as s. 96(7) appears to be
a fetter or clog on the
undisputed constitutional right
of the courts to grant bail in
every offence, it is
inconsistent with the
Constitution and thus stands
repealed, albeit by implication.
The court, having endorsed this
view, could not at the same time
say that s. 96(7) of Act 30 has
rebutted the presumption of
innocence. At worst they would
be contradictory in terms, in
which case the more beneficial
one to the right of accused
persons or in favour of personal
liberty should prevail. But my
reading of the decision in the
Gorman case does not convince me
the court was contradicting
itself when it is considered in
the light of all the principles
that have been applied and are
applicable to bail cases where
there has been unreasonable
delay in the proceedings. For
soon after affirming the opinion
by the learned author quoted
above, the court proceeded to
discuss the matter before it
which was in respect of an
application for bail in a matter
where there was no delay. The
ratio of that case should thus
be confined to the court’s
decision in matters where there
had been no delay in the
proceedings which does not
attract the duty imposed on the
court to consider bail under
Article 14(4) of the
Constitution.
I would therefore proceed to
consider this action without
having any shadow of the Gorman
decision ahead of me. This
principle of presumption of
innocence is a very important
one in the criminal justice
system and it underpins the
basic concept of individual
liberty under the Constitution.
When the opportunity arose the
US Supreme Court seized the
occasion to firmly place this
principle in its jurisprudence.
That was in the case of
Coffin v. United States, 156
U.S. 432 (1895) decided on
March 4, 1895. The court said
that “the principle that
there is a presumption of
innocence in favor of the
accused is the undoubted law,
axiomatic and elementary, and
its enforcement lies at the
foundation of the administration
of our criminal law…..”
The principle has gained
worldwide acceptance. The UN
Declaration of Human Rights,
Article 11(1) states that:
Everyone charged with a penal
offence has the right to be
presumed innocent until proved
guilty according to law in a
public trial at which he has had
all the guarantees necessary for
his defence.
The same principle is re-stated
by Article 7(1)(b) of the
African Charter on Human and
Peoples’ Rights. Article
19(2)(c) of the Constitution
reaffirms this principle which
Ghana has subscribed to at both
the UN and AU.
In the Gorman case the court was
not called upon to determine
whether s. 96(7) of Act 30 was
inconsistent with Article
19(2)(c) of the Constitution.
Article 19(2)(c) of the
constitution gives a suspect
under investigation or an
accused on trial the benefit
that he is innocent until the
court has found him guilty after
a hearing or following a plea of
guilt. The grant of bail is one
of the tools available to the
court to ensure that a suspect
or an accused, as the case may
be, is guaranteed his innocence
until the court has found him
guilty. The presumption of
innocence embodies freedom from
arbitrary detention and also
serves as a safeguard against
punishment before conviction. It
also acts as a preventive
measure against the State from
successfully employing its vast
resources to cause greater
damage to a person who has not
been convicted than he can
inflict on the community.
Therefore in my humble view any
legislation, outside the
Constitution, that takes away or
purports to take away, either
expressly or by necessary
implication, the right of an
accused to be considered for
bail would have pre-judged or
presumed him guilty even before
the court has said so. That
would be clearly contrary to
this constitutional provision
which guarantees his innocence
until otherwise declared by a
court of competent jurisdiction.
In my opinion, besides article
14(3) and (4) which the court in
the Gorman case endorsed as
having impliedly repealed s.
96(7) of Act 30, the said
statutory provision is also
contrary to the letter and
spirit of Article 19(2)(c) in so
far as prohibition of the right
to apply for the court’s
consideration for bail presumes
the guilt and not the innocence
of a suspect or accused, as the
case may be. Article 14(3) and
(4) provide:
(3) A person who is arrested 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.
In view of these clear
provisions the interpretation
placed on them in the Gorman
case that they impliedly
repealed section 96(7) of Act 30
as amended is sound. For the
court is in no way prohibited
from considering bail in any
criminal offence as section
96(7) purports to do. Thus these
three provisions, namely
Articles 14(3) and (4) and
19(2)(c) and as I shall shortly
demonstrate Article 14(1),
should be read together in order
to appreciate that a prohibition
on the right to bail is in
conflict with the constitutional
provisions on individual
liberty. I will return later to
this.
The danger posed by this law,
that is s. 96(7) of Act 30, is
that it sets no time frame in
which the investigations should
end; it sets no time frame
within which the provision
should cease to apply whether or
not investigations have been
concluded; it sets no specific
conditions in which they are to
apply. It means therefore that
if the prosecution prefers any
of these charges against another
person whether the facts support
the charge or not, the court’s
only duty is to put you away
because the law says so. It is a
sure recipe for abuse of
executive power to stultify all
the provisions on personal
liberty enshrined in the
Constitution. It is necessary to
state that the issue whether to
deprive a person of his personal
liberty under Article 14 of the
Constitution is not a
magisterial or executive act,
but a judicial one. I recall the
words of Justice Frank Murphy in
his dissenting opinion in the
case of Oklahoma Press
Publishing Co. v. Walling, 327
U.S. 186 (1946) at 219that:
“Liberty is too priceless to be
forfeited through the zeal of an
administrative agent.”
The existence of Article 14(4)
whereby the court can grant bail
as a result of unreasonable
delay does not remove the danger
because judges and magistrates
can rely on this law to deny
bail, and indeed the practice
still goes on. The courts yield
to the imperative nature of that
law and thereby deny personal
liberty to the individual
without the restraining hand of
the judiciary. Since the
provision is clearly
inconsistent with the provisions
on personal liberties guaranteed
under the Constitution it should
not be left to stand. Indeed any
law that violates any of the
Chapter 5 rights under the
Constitution is itself
unconstitutional.
At this stage let us refer to
the experiences of other
established democracies on this
question which were considered
for their persuasive influence.
In India the law stresses the
importance of the presumption of
innocence. In an article with
the title: Bail, A Matter Of
Right: Not To Be Denied On
Ground Of Nationality, by
Bijoylashmi Das, the learned
author made reference to Article
21 of the Indian Constitution, a
similar provision like Article
14 of our Constitution, 1992,
and said, rightly so, that
personal liberty is of utmost
importance and that “deprivation
of personal liberty must be
founded on the most serious
considerations relevant to
welfare objectives of the
society as specified in the
Constitution.” Quoting from some
decisions of the Indian Supreme
Court, the learned author
continued thus: “Personal
liberty, deprived when bail is
refused, is too precious a value
of our constitutional system
recognized under Article 21 that
the crucial power to negate it
is a great trust, exercisable,
not casually but judicially,
with lively concern for the cost
to the individual and
community.” This statement is
true and apt and I reiterate
what I earlier said that the
question of bail consideration
is not a magisterial or
executive act, which section
96(7) purports to do, but a
judicial one, to be performed
under the Constitution.
In the United States in the very
year 1789 that the Bill of
Rights was introduced, the
Judiciary Act was enacted. It
allowed bail to be granted by
every court of competent
jurisdiction in every offence
except in capital offences where
bail was restricted to the
Supreme Court and other superior
courts named therein. Thus the
right to bail was recognized
pursuant to the right of the
individual to his liberty until
a judicial pronouncement to the
contrary has been made.
Let us move into specific
subjects. I will consider
extradition laws in the United
States and then go on to
consider anti-terrorism laws in
the United Kingdom. In the
United States, the Bail Reform
Act makes no provision for bail
in international extradition
cases. However, the courts have
not shied away from granting
bail in appropriate cases,
bearing in mind, however, the
need to respect the principle of
comity and co-operation with
other nations. The Supreme Court
had the opportunity to pronounce
on the question of bail in
extradition proceedings in the
case of Wright v. Henkell,
190 U.S. 40 (1903) decided
on 1 June 1903. The court
recognized that international
and diplomatic considerations
weighed against the grant of
bail in extradition proceedings.
However, at page 63, the court
speaking through Fuller, CJ had
this to say: “We are unwilling
to hold that the Circuit Courts
possess no power in respect of
admitting to bail other than as
specifically vested by statute,
or that while bail should not
ordinarily be granted in cases
of foreign extraditions those
courts may not in any case,
whatever the special
circumstances, extend that
relief.” The courts themselves
do recognize the need to be slow
in granting bail in such cases;
hence they have applied what
they call the presumption
against bail in extradition
cases, thereby placing a burden
on defendant to rebut the
presumption in order to get
bail. And even in those cases
where bail has been granted it
has been on very strict
conditions and limited in its
terms. See these cases:
United States v. Kin-Hong, 83 F.
3d, 523 (1st Cir
1996); Martin v. Warden, 993 F.
2d. 824 (11th Cir
1993); Salerno v. United States,
878 F. 2d 317 (9th
Cir. 1989).These references
have been made to show that even
in cases of foreign extradition
which have a bearing on the
nation’s international standing
among the comity of nations the
court has the undoubted power to
consider bail in appropriate
cases even without express
statutory backing as part of its
duty to ensure the liberty of
all persons as duly guaranteed.
And in a constitutional
dispensation the court has a
duty imposed by the Constitution
to ensure the protection of
human rights. The restrictions
that the courts in the United
States have imposed upon
themselves in extradition
proceedings is to acknowledge
that the interest of the State
and for that matter the society
should also be considered in
matters of bail in criminal
offences. That is the beauty of
democracy that all competing
interests are catered for.
In 2001 the UK adopted the
Anti-terrorism, Crime and
Security Act, apparently in
response to the events of
September 11, 2001 in the USA.
On 16 December 2004 the House of
Lords issued a ruling that the
detention without trial of some
foreigners detained at HM
Prison, Belmarsh under Part 4 of
the Act was unlawful, being
incompatible with European, and
thus domestic human rights laws.
See A and others v. Secretary
of State for the Home Department
(2004) UKHL 56; popularly
called the ‘Belmarsh 9’ case. In
response to this ruling the
Prevention of Terrorism Act 2005
(c.2) was passed. In April 2006
a High Court judge issued a
declaration that section 3 of
the 2005 Act was incompatible
with the right to a fair trial
under article 6 of the European
Convention on Human Rights. The
system of control orders in the
Act was described by Justice
Sullivan as an affront to
justice. That was in the case of
MB, Re (2006) EWHC 1000
(Admin). The learned judge
had this to say:
“To say that the Act does not
give the respondent in this
case, against whom a
non-derogating control order has
been made by the Secretary of
State, a fair hearing in the
determination of his rights
under Article 6 of the
Convention would be an
understatement. The court would
be failing in its duty………….if it
did not say, loud and clear,
that the procedure under the Act
whereby the court merely reviews
the lawfulness of the Secretary
of State’s decision to make the
order upon the basis of the
material available to him at
that earlier stage are
conspicuously unfair. The thin
veneer of legality which is
sought to be applied by section
3 of the Act cannot disguise the
reality. That controlees’
rights under the Convention are
being determined not by an
independent court in compliance
with Article 6.1, but by
executive decision-making,
untrammelled by any prospect of
judicial supervision.”Emphasis
supplied. The Court of Appeal,
whilst disagreeing that the
respondent’s Article 6 rights
had been breached nevertheless
agreed that his Article 5 rights
were breached. But the reasoning
of the High Court judge is
sound.
The relevance of the 2004
decision by the House of Lords
in the ‘Belmarsh 9’ case and the
High Court decision in Re MB,
supra, is that the courts took
special recognition of the human
rights laws and would not
compromise them in favour of
other instruments which were an
infraction on the human rights
of individuals. Especially those
situations where the power to
determine the rights of an
individual were placed in the
hands of the executive without
the court’s right of
superintending same cannot be
sustained.
Even in countries which have
legislations that place
limitations or what may appear
to be prohibition on bail for
certain offences, access to the
courts is not completely shut
out. See schedule 1 of the Bail
Act of 1976 applicable in
England and Wales and the Code
of Criminal Procedure, 1973 of
India. The latter classifies
some offences as non-bailable.
But the attitude of the courts
is reflected in the Supreme
Court decision that the basic
rule under the law is bail and
not jail, see the case of
State of Rajasthan, Jaipur v.
Balchand @ Ballay (1977) AIR
2447; (1978) SCR(1) 535.
The courts have been able to
consider bail in all offences
including those classified as
non-bailable, but that right is
denied the Police who are
non-judicial officers. Indeed
the Act itself permits the
courts to grant bail under
certain conditions even for
offences described as
non-bailable. They are so
described because in certain
conditions the accused or
suspect may be refused bail, for
instance where there appears to
be reasonable grounds for
believing that he has been
guilty of an offence punishable
with death or imprisonment for
life. See section 437 of the
said Act.
However, it is noted that under
Scot law the crimes of treason
and murder were made
non-bailable. That was
introduced by section 24(1) of
the Criminal Procedure
(Scotland) Act, 1995. But it did
not survive the ensuing public
disapproval so it was repealed
five years later by section 3(1)
of Bail, Judicial Appointments
etc (Scotland) Act, 2000 thereby
allowing the courts to consider
bail in all crimes. However, the
laws set out some stringent
conditions for bail in some
specific crimes like drugs and
sexual offences.
Under Schedule 1, Part 1 of the
Bail Act of 1976 applicable in
England and Wales, the law sets
out situations in which the
court may deny bail to an
accused. Indeed they are set out
as exceptions to the right to
bail. But they are no more than
the grounds our courts do
normally consider whether to
grant bail or not, like those
situations mentioned in section
96(1) to (6) of Act 30. What is
important to note is that the
right to be considered for bail
is not foreclosed by the law;
the prosecution has to satisfy
the court that an accused has
forfeited his right to bail in
any of the grounds listed in the
schedule.
Under the Criminal Procedural
Code of the Czech Republic, bail
cannot be considered in certain
listed offences including
murder, rape, robbery; but, the
court is not debarred from
considering an application for
bail altogether as it is under
section 96(7) of Act 30. Under
the Czech Code the court is
required to refuse bail where
the person is being held due to
concern of continuation of
criminal activity. In other
words it sets out ground rules
for refusal to allow bail, just
like the English Act cited
above. Several of such
legislations exist globally. Yet
the power to superintend over
the criminal justice system in
democracies has not been denied
the judicial arm of government
which has the mandate to protect
the fundamental rights of
citizens, of course mindful of
the public interest as well.
On the African continent, let us
turn attention to South Africa
which also practices
constitutional democracy like
Ghana. Section 61A of the
Criminal Procedure Code of the
State of Bophuthatswana required
that the court should refuse
bail in certain situations only
upon information provided by the
Attorney-General. In the case of
Smith v. Attorney-General,
Bophuthatswana (1984) 1 S.A.
196(B) the Bophusthatswana
Supreme Court struck down this
provision as invalid the same
being in conflict with the Bill
of Rights, the equivalent of the
Human Rights Chapter 5 of our
Constitution, 1992. This is what
Hiemstra CJ said: “The
universal method of safeguarding
individual liberty is to entrust
it to an independent judiciary
operating in public and
compelled to give reasons. Every
man is entitled to due process
of the law. This principle is so
ancient that it can be traced
back to the Magna Carta…… In
section 61A the judicial process
is eliminated. The order
refusing bail to a suspect is
still made in open court by a
judicial officer, but it is a
pantomime of a court. The
magistrate is not only compelled
to accept the Attorney-General’s
ex parte statements of fact, not
supported by any evidence, but
the statute also tells him what
order to give, namely a refusal
to grant bail. A statute
which eliminates the judicial
process in matters of personal
liberty is plainly
unconstitutional.”
Emphasis supplied.
In arriving at my decision, I
considered the arguments of
Counsel for the defendant which
I entirely rejected. Under
Article 14(1) (g), it is true
the liberty of a person who has
committed or is reasonably
suspected to have committed an
offence may be curtailed. That
provision must not be read in
isolation, but in conjunction
with Articles 14(3) and (4) as
well as 19(2) (c). Indeed
Article 14(1) should be read as
a whole. The said provision,
that is 14(1), does not say,
expressly or by necessary
implication, that a person
detained in the circumstances
described, is not entitled to be
granted bail. No such words
should be imported into that
provision. It does not justify
the existence of section 96(7)
of Act 30 which prohibits the
consideration of bail, contrary
to article 14(1) (g) which
permits the detention of a
person in certain situations,
without prohibiting such a
person from being considered for
release on bail. This provision
in article 14(1)(g) whether
standing on its own or when read
in conjunction with Article
14(4) is clear that it was not
intended that a person held
under the former could not be
granted bail at all in certain
specified offences, which
section 96(7) purports to do.
Counsel for the defendant
appeared to have reached an
illogical conclusion from his
own arguments. Let me repeat the
material part of his argument.
He said that “the Constitution
itself makes it clear that the
requirement to grant bail to a
suspect/accused if exercised
judiciously shall not be held to
be inconsistent with or in
contravention of the
Constitution” Who has the power
to determine that the issue of
bail has been judiciously
exercised? It is certainly not
the executive; it is the
function of the judiciary by
virtue of Article 125 of the
Constitution. Article 14(1) has
set out under what terms and
situations the detention of an
individual may be justified; in
none of those situations is the
court’s involvement excluded.
And as counsel for defendant
duly acknowledged, the exercise
of this duty is to be done
judiciously. From Counsel’s own
arguments the only logical
inference or conclusion should
be that if any other law exists
which does not allow the court
to judiciously determine whether
or not to curtail a person’s
personal liberty that law would
be inconsistent with Article
14(1). For if the court is
denied the right to examine the
question of bail how does it
exercise its function
judiciously? What jurisdiction
the Constitution has granted
cannot be detracted from by any
other law, it can only be added
to.
Counsel’s argument amounts to
the court being called upon to
shirk the duty imposed on it by
Article 14(1) to ensure that any
person who is deprived of his
personal liberty has been
subjected to due process which
calls for examination of every
case regardless of the offence
the person is alleged to have
committed. For Article 14(1)
does not give room for the
lawful detention of a person
based upon the nature of the
offence alleged to have been
committed by him. It is
pertinent to observe that
Article 14(1) says ‘no person
shall be deprived of his
personal liberty except in the
following cases….’ Thus the
Constitution itself has
circumscribed the situations in
which a person may be deprived
of his liberty. Therefore s.
96(7) of Act 30 that seeks to
add to this list is inconsistent
with the constitutional
provision. Thus the existence of
section 96(7) of Act 30, as
amended undermines the express
provisions of Article 14(1) of
the Constitution.
What of Article 21(4) (a) and
(b)? These provisions do not
call for any interpretation at
all. The simple language
employed is clear that by an
order of a court a person’s
right may be curtailed. These
provisions rather give credence
to the position of the plaintiff
that in all cases the continued
detention of a suspect or
accused after forty-eight hours
of arrest, restriction or
detention can only be justified
by an order of court and that
the right of a court to consider
bail cannot be curtailed
permanently by statute.
The plaintiff’s application has
also been brought under Article
15(2) of the Constitution, 1992
which largely deals with the
right to dignity. Clause 1 of
Article 15 states the
inviolability of the right to
human dignity. This right has
been stressed and given
prominence in matters of
governance at least from the
time of Roman civilization.
Before then, religious
theologians had insisted on it
basing their arguments on the
biblical revelation that God
created man in his own image.
There is no need to trace its
history in this short piece.
Suffice it to say that, like the
presumption of innocence, it has
gained worldwide acceptance. The
inviolability of the human
dignity is a core human right
which must be respected and
protected. The UN Charter
recognizes it and so does the UN
Declaration on Human Rights in
its preamble which states that
the ‘recognition of the inherent
dignity and of equal and
inalienable rights of all
members of the human family is
the foundation of freedom,
justice and peace in the world’
The International Covenant on
Economic, Social and Cultural
Rights as well as the
International Covenant on Civil
and Political Rights both state
that all human rights derive
from the inherent dignity of the
human person. In the same vein,
the European Court of Human
Rights regards human dignity as
underpinning all of the human
rights protected by law. See the
case of Pretty v. United
Kingdom; case no. 2346/02 (2002)
ECHR 423 dated 29 April 2002.
Hence the same court applied
the principle ofhuman dignity to
a case founded on the right to a
fair hearing, see the case of
Bock v. Germany 12 EHRR 1990 247
delivered on 29 March 1989.
This principle has been applied
in several cases including forms
of punishment, equality of
sexes, gay and lesbian rights
and several others, depending on
the jurisdiction and in the
context of their constitution
and statutes. I do not intend to
go into these cases on account
of relevancy. However, I note
that the free person and his
dignity are the highest values
of the constitutional order
therefore the State in all its
forms is obliged to respect and
defend it.
I have perused the argument of
the plaintiff and I do not
really fathom the connection
between article 15(2) of the
Constitution and section 96(7)
of Act 30 in the instant case.
This being a case of
constitutional interpretation we
have to examine the provision
from the perspective of its two
legal components, namely the
form of punishment prescribed by
a statute and also the form of
detention that defiles human
dignity. The fact that a suspect
or accused is placed in custody
does not per se violate the
dignity of the individual
person. For it is a requirement
of the Constitution that a
person suffers the consequences
of his crime. For that reason
the Constitutional provision in
Article 14(1)(g) enables the
investigating agencies and/or
the court to place a person
behind bars in appropriate cases
during investigations,
arraignment or trial. What the
Constitution frowns upon is
arbitrariness or the inhumane or
cruel nature of the detention or
punishment, as the case may be.
Counsel appeared not to have
addressed this question
adequately; he rather spent so
much time on American
jurisprudence whereby the courts
there had departed from their
previous decisions, in his quest
to satisfy us to depart from the
decision in the Gorman case. In
the process he got lost in
transit and failed to address
the questions posed by Article
15(2).
This provision gives protection
to the person who is under some
form of detention following an
arrest. The provision ensures
that his human dignity is not
abused by the sort of punishment
that is inflicted upon him or
the way and manner his detention
is effectuated by the State.
That is where all state actors
have a role to play at every
turn in the criminal justice
system to ensure that a
complainant’s dignity as a
person is not abused.
Counsel’s only submission of
some substance is in respect of
the kind of conditions that
prevail in our prisons.
Consequently he thinks when a
person who has not been
convicted is denied bail and is
sent to such jails it would be
violating his human right to
personal dignity. I think this
argument is a little far-fetched
and quite dangerous. The reason
being that if conditions
prevailing in the prisons are
employed as a ground for
striking down a law, then all
criminal suspects and convicted
criminals as well would apply to
be set free on that account. The
ends of justice should not lead
to chaotic results and absurd
situations. That surely is
contrary to the constitutional
provisions and even
international human rights
instruments which allow the
prosecution and possible
imprisonment of persons who fall
foul of the criminal laws.
Counsel did not invoke this
provision appropriately. In my
view, the provision is invoked
where the plaintiff complains
that the legislation in question
has prescribed some form of
punishment that is cruel,
degrading or inhuman which is
consequently inconsistent with
this constitutional provision.
Secondly, the provision applies
if there is a complaint that a
particular legislation has
prescribed some form of
detention which is a violation
of his human dignity. In either
case it will be within the
plaintiff’s right to have such
legislation declared
unconstitutional. Here again the
plaintiff has not demonstrated
that section 96(7) of Act 30
prescribes a form of punishment
or detention that violates the
human dignity. Indeed it
contains no such provision. The
conditions in the prisons are
not the subject of this
legislation under
consideration.
Let us wind down by returning to
the earlier arguments on the
Gorman case. Counsel for the
plaintiff was concerned that
when the court used the
expression ‘criminals’ in the
Gorman case to describe persons
who had not been convicted, it
“makes it virtually impossible
for such an applicant to seek a
bail from the court” I think the
court went on to explain that a
court could grant bail in all
cases first as a
constitutionally imposed duty
under Article 14(4) where there
has been unreasonable delay and
in other cases where there has
been no such delay. The court
was concerned that bail should
not be used as an instrument of
oppression by state actors
against accused persons whilst
at the same time it should not
be manipulated by persons who
have been accused of committing
crimes particularly serious
crimes to be left at large in
situations which call for their
incarceration pending trial. It
was a timely caution to the
courts, especially trial courts
to exercise due care in
questions of bail, more
particularly in serious crimes.
Let me return to the discussion
on Articles 14(1), (3) and (4)
and 19(2)(c). It is observed
that an application for bail may
be made in any offence wherein
Article 14(4) applies, that is
in cases of unreasonable delay
in the pre-trial proceedings or
during the trial where the
accused has been placed in
custody. This provision has
additional support in Article
19(1) which provides that A
person charged with a criminal
offence shall be given a fair
hearing within a reasonable
time. This provision taken
together with Article 14(4)
confirms the importance attached
to time in dealing with criminal
offences lest the rights of the
individual should be abused,
even for those who are on bail.
However, a critical appraisal of
Articles 14(4), 19(1) and
19(2)(c) would appear to confer
the power or jurisdiction to
consider and grant bail to the
trial court, which in the
context means the court with the
jurisdiction to hear the
particular offence. For instance
in cases of piracy or murder and
others where the High Court is
the only court with original
jurisdiction, application for
bail cannot be made to any other
court in the first instance.
Thus even if the complaint of
unreasonable delay is from the
pre-trial proceedings as
envisaged under Article 14(4),
nevertheless a committal court
or a holding court, if it may be
so called, has no jurisdiction
to entertain any application in
respect of offences which it has
no jurisdiction to hear.
In respect of applications for
bail brought under Article
14(4), which are mostly in
serious crimes, the appropriate
court is required first of all
to make a determination that on
the facts and circumstances
there has been unreasonable
delay. If it arrives at a
contrary decision the court of
course will not proceed at all
to the next phase. If it clears
the constitutional hurdle and
thus determines that there has
been unreasonable delay, it
becomes the duty of the court to
proceed to assess the various
grounds for the application
under enabling statutes and
applicable jurisprudence. It
must always bear in mind that it
has a constitutional duty under
Article 12(2) to balance the
interest of the individual
against that of others and the
public as well. These safeguards
are in place under the
Constitution to ensure the
enjoyment of the rights
guaranteed under the
Constitution by the entire
members of society and ensure a
smooth and effective operation
of the criminal justice system.
Thus whilst it is possible to
let loose a person on trial for
armed robbery for instance, yet
it is still possible to put such
a person behind bars if that
will serve the general good of
other persons or the community.
It becomes obvious that the
court should not be in haste in
taking decisions on bail under
Article 14(4), it must receive
all the evidence it needs from
both the accused and the State
and should thus afford them
every opportunity to present the
evidence to enable it make an
informed decision. This
constitutional provision imposes
on the court more than a passive
acquaintance with the laws on
bail; it requires more than a
cursory examination of a bail
application; it requires more
than ‘having perused the papers
filed, and having heard counsel
on both sides, I hereby grant,
or refuse to grant the
application’, as the case may
be. It calls for a well-reasoned
decision. Thus applications for
bail in serious offences should
be taken as a serious business
in the interest of society which
has adopted a constitution
impliedly removing the
restrictions imposed by section
96(7) of Act 30 and placing the
trust in the court that all
competing interests would be
taken care of.
To conclude I uphold the claim
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, void
and of no effect. In my view
article 14(1)(g) does not
justify the continued existence
of section 96(7) of Act 30, as
amended. Indeed in so far as
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 to that extent is
null, void and of no effect. And
in so far as the prohibition
imposed by section 96(7) of Act
30 does not fall within the
exceptions in Article 14(1) it
is inconsistent with it and is
thus null, void and of no
effect. Section 96(7) of Act 30
is accordingly struck down. I do
hereby reject the claim founded
on Article 15(2) of the
Constitution for reasons
explained above.
(SGD)
A. A. BENIN
JUSTICE
OF THE SUPREME COURT
WOOD (MRS) CJ
I have had opportunity to read
both the lead opinion and
dissentient of my respected
Brother and Sister, Benin JSC
and Adinyira (Mrs) JSC
respectively. Unfortunately, I
disagree with the latter’s
ratiocination on the principal
issue before this court, namely,
the constitutional validity of
section 96 (7) of the Criminal
and other Offences (Procedure)
Act, 1960 (Act 30) viz a viz
articles 14 (1), 15 (2) and 19
(2) of the 1992 Constitution.
Contrariwise, I agree with the
Benin JSC findings of an
existing inconsistency between
these two provisions.
I would however take the liberty
to contribute to this important
discourse, with its many
possible far-reaching
ramifications, particularly, in
relation to the status quo,
given that for some decades,
before this epoch-making
decision, courts have regulated
affairs on the assumption that
section 96 (7) of Act 30, was
perfectly constitutional and not
in conflict with the relevant
articles 14 (1), 15 (2) and 19
(2) (c) of the Constitution.
Thus, hitherto, in the lower
courts in particular, where the
bulk of criminal proceedings in
respect of those serious
offences listed under section 96
(7) of Act 30, are conducted
(initiated or tried),
applications for bail, have
typically been met with the
common refrain- “not- entitled-
to- bail”, on account of the
section 96 (7) of Act 30
prohibition.
Our decision demands a further
exercise of our constitutional
jurisdiction under article 2 (2)
of the Constitution. Making the
appropriate consequential orders
and issuing broad directions
will meet the demands of
justice, given its possible
effect on the many accused
persons being held in pre-trial
detention, on grounds that their
offences were non-bailable.
One of the cardinal features of
constitutional democracies
governed by the rule of law is
the power of judicial review. It
is a strong bulwark against
illegality and impunity and
insulates citizens against their
human rights violations. Dr.
Date-Bah JSC, in the case of
Adofo v Attorney –General
[2005-2006] SCGLR 42, spoke the
mind of this court on the
rationale behind judicial review
litigation, the legal process
through which, as in this
instant action, the apex court
determines the constitutionality
of executive or legislative
action. He said of the latter:
“The power of judicial review of
the constitutionality of
legislation, which is explicitly
conferred on this court by
articles 2(1) and 130 (1) of the
Constitution is one that should
vigilantly be enforced by this
court in the discharge of its
obligation to uphold the
Constitution of this country…
The Constitution expects judges
to protect individuals and
minorities from the power of the
majority. The provisions on the
fundamental human rights and
freedoms enshrined in Chapter 5
of the 1992 Constitution are
intended to facilitate the
fulfillment by judges of this
expectation.”
Buoyed by articles 2(1) and 130
(1) of the Constitution, the
Plaintiff, desirous of advancing
the frontiers of our
constitutional jurisprudence,
and safeguarding the individual
rights and liberties of the
citizenry, has invoked the
original jurisdiction of this
court for declaratory relief and
further nullification of the
relevant statutory provision.
The action is premised on the
ground that:
“...Section 96 (7) of the
Criminal and Other Offence (sic)
(Procedure Act), 1960 (Act 30)
as amended by the Criminal
Procedure Code (Amendment) Act,
2002 (Act 633) contravenes
Articles 15 (2) and 19 (2) (c )
of the 1992 Constitution…”
As per paragraph (4) of the
Plaintiff’s statement of case,
section 96 (7) is said to
provide that:
“…a court shall refuse to grant
bail in a case of treason,
subversion, murder, robbery,
hijacking, piracy,rape and
defilement or escape from lawful
custody”
This statement contains an error
which even if inadvertent, is
nonetheless significant enough
to merit correction.
Pertinently, some offences have
been excluded from the list of
serious offences provided under
section 96 (7) of Act 30, and
which offences, in the lexicon
of criminal law in our
jurisdiction, are referred to as
“non-bailable” offences.
Thus, the correct legal
position, following the revision
and consolidation of all
amendments under the principal
enactments, per Laws of Ghana
(Revised Edition) Act 1988, Act
562, section 96 (7) of the
Criminal and Other Offences
(Procedure ) Act,1960, (Act 30)
is that:
“A Court shall refuse to grant
bail;
(a)
In a case of acts of terrorism,
treason, subversion, murder,
robbery, offences listed in
Parts 1 and 11 of the Narcotic
Drugs Control, Enforcement and
Sanctions) Law, 1990 (P.N.D.C.L.
236), hijacking,piracy,
rape,defilement or escape from
Lawful Custody, or 13 (a)(15)
(b)
Where a person is being held for
extradition to a foreign
Country.”
The determinative point in this
action thus turns on the
constitutional validity of
section 96 (7) of Act 30, viz a
viz articles 14 (1) and 19(2)
(c) of the 1992 Constitution.
I agree with my Sister Mrs.
AdinyiraJSC, that the Plaintiff
expended considerable time and
energy, in putting up a case
unsupportable in law. This he
did by urging a departure from
what he erroneously thought was
a previous decision of this
court, and thus exposed himself
to clear danger of a “non-suit”.
That pathway, which resulted in
copious references to decisions
of the United States Supreme
Court, to demonstrate how the
court changes its opinions
overtime, was therefore clearly
of no assistance or precedent
value to this court. And so the
argument inter alia that:
“The Plaintiff recognises the
decision in Gorman v The
Republic. However, the
Plaintiff’s case is that, the
decision should not stand the
test of time. Gorman was in
2003. Today we are in 2015; a
lot of water has passed under
the bridge as such calls for a
review of Gorman.”
is, for the purposes of the
central question in this instant
action, non sequitur. The reason
is simple. Clearly, undergirding
the doctrine of stare decisis
and its related principles as
pertains to this court’s
governing jurisdiction, is the
fact that the decision from
which the departure is urged, is
a definitive or conclusive
decision in a previous action.
However, in the case of Gorman
and Others v The Republic
[2003-2004] SCGLR 784 (Gorman
case), this court made no
distinctive pronouncement on the
constitutionality or otherwise
of the section 96 (7) of Act 30.
Nonetheless, the saving grace
as regards Counsel’s approach is
this. In court room litigation,
it is not Counsel’s mere
spirited views nor propositions
that informs a court’s decision
one way or the other. Otherwise,
court work would be in perpetual
jeopardy. Judges would be
rendered judicially impotent and
ineffectual, without the ability
to pronounce on any dispute,
given parties’ competing
interests and the divergent
opinions that are invariably
advanced in support of their
respective positions.
Classically, Counsel’s or a
party’s significantly different
views on any given matter, only
assists the court to comprehend
their respective claims, and
identify the law and facts in
issue. But certainly, their
assertions, opinions, theories
or arguments are not the
determinants for either
identifying the real issues or
judging the matter.
Thus, beyond Counsel’s spirited
arguments, it was incumbent on
us to determine, the subsidiary
issue of whether or not the
court authoritatively decided
the constitutional validity of
section 96 (7) of Act 30 viz a
viz articles 14 (1) and 19 (2)
(c) of the Constitution- the key
issue for adjudication in this
instant action.
I agree entirely with the
finding that the Gorman case is
not an authoritative
pronouncement of this Court on
the constitutional validity of
the section 96 (7) of Act 30,
and which would neccessarily
require our sound and compelling
reasons, if we are minded to
depart therefrom.
Four issues were raised in the
Gorman appeal hearing before
this court. These, together with
the arguments in support
thereof, are neatly set out in
the head notes. The
constitutionality or otherwise
of articles 14(1) and 19 (2)(c )
viz a viz section 96 (7) of Act
30 do not from part of the
issues raised before this
court. The appeal questioned
the correctness of the Court of
Appeal decision, which had
reversed the trial High Court
court’s grant of bail, and
denied the accused bail, on
account, specifically, of the
heineousness or gravity of the
offence. In other words, the
Court of Appeal’s decision to
rescind the bail earlier granted
by the High Court, was not
premised on the ground that per
section 96 (7) of Act 30, by the
operation of law, the appellants
were not entitled to bail; their
offences being “non-bailable”.
Hence, no arguments were
advanced by the parties; either
with the leave of the court -
which leave they sought either
on their own volition, or was
granted by the court suomoto- as
is the just legal requirement,
following the court’s first time
incursions into the matters
related to section 96 (7) of Act
30, and which finally
culminated, inter alia, in the
following broad statements only:
“Drawing on our general
analysis of the law above, we
summarize our holdings as
follows:
“(5) Outside the strictures of
s.96 (7) of the Code and article
14( 9) of the Constitution, the
presumption of the grant of bail
is still extant, and is
exercised under judicial
discretion which is itself
fettered by other provisions of
s. 96.
(6) There is no prima facie
inconsistency between the
relevant provisions of the code
and the 1992 Constitution.”
Consequently, the court’s
pronouncements on the section 96
(7) of Act 30, constitutes
obiter dicta. The same is
without binding authority, and
thus of persuasive precedent
only, if at all. It is not the
ratio decidendi of the Gorman
case; a mandatory binding
authority, from which this court
can depart.
Admittedly, the 1979 High Court
case of Owusu v The Republic
[1980] GLR 460, raised a similar
legal question, given that
article 14 (3) (b) and (4) of
the 1992 Constitution, on which
that case was premised, is
couched in similar words as
article 21 (3)(b) and (4) of the
1979 Constitution. In that
case, the applicant who had been
charged with the offence of
abetment of murder, in applying
for bail, was met with a similar
argument, namely, that section
96 (7) (a) of Act 30 prohibited
the grant of bail. But, the
decision on that critical legal
question, if at all is of
persuasive authority only.
However, this action is the
first frontal challenge to the
constitutionality or otherwise
of section 96 (7) of Act 30, in
the context of the 1992
Constitution. And on this
substantive issue, I agree with
my brother Benin JSC that this
statutory provision contravenes
articles 14 (1) and 19 (2) (c)
of the 1992 Constitution, and
clearly to that full extent null
and void and of no effect.
Denial of personal liberty
constitutes a most serious human
rights violation under both
domestic and international law.
The Plaintiff thus rightly
questions the constitutional
validity of section 96 (7) of
Act 30 within our entrenched
human rights constitutional
framework, in the light of the
high value attached to personal
liberty, within the context of
the preamble to the 1992
Constitution, article 14 and
additionally the article 19 (2)
presumption of innocence
guaranteed an accused person
until otherwise found guilty by
a court of competent
jurisdiction, following due
process, namely, the fair trial
procedures detailed under the
Constitution and other laws of
Ghana.
Thus, the determination of this
validity question requires a
proper construction of these
relevant constitutional and
statutory provisions in a manner
consistent with the
well-established interpretative
principles of this court.
Articles 14 (1) (f) (g) (2) (3)
&(4) and 19(2) (c) of the 1992
Constitution provide:
(a)…
(f) for the purpose of
preventing the unlawful entry of
that person into Ghana, or of
effecting the expulsion,
extradition or other lawful
removal of that person from
Ghana or for the purpose of
restricting that person while he
is being lawfully conveyed
through Ghana in the course of
his extradition or removal from
one country to another; or
(g) Upon reasonable suspicion of
his having committed or being
about to commit a criminal
offence under the laws of Ghana.
(2) A person who is arrested,
restricted or detained shall be
informed immediately; in a
language that he understands, of
the reasons for his arrest,
restriction or detention and of
his right to a lawyer of his
choice.
(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 either 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.
Article 19 (2) (c) of the
Constitution provides:
(2) A person charged with a
criminal offence shall…
(c) be presumed to be innocent
until he is proved or has
pleaded guilty;
A contextual, holistic, liberal
and suis generis interpretation
of these fundamental human
rights provisions, in conformity
with the established
constitutional principles of
this court, as expounded in a
long line of cases, including
the more recent case of
BortierQuaye v E C &
Attorney–General [2012] SCGLR
433, which advocates a purposive
“reading of entire provisions
with a view to assuring that
every provision is given
effect…” validates the
conclusions reached by Benin JSC
in this matter.
Constitutional human rights and
freedoms provisions are entitled
to the most benevolent and
liberal construction on account
of their very essence -
entrenched constitutional laws
pertaining to fundamental rights
and freedoms. Thus, a narrow and
restrictive interpretation, in
a manner that fail to advance
individual rights and liberties
is not permissible.
Article 14 (1) explicitly
delineates the constitutional
and therefore only valid
limitations to the right to
personal liberty. Article
14(1)-(4) which enumerates the
conditions for curtaliment, is
thus subject to a strict and
narrow construction. Also, any
substantive or procedural
legislation which is
inconsistent with the enumerated
grounds, risks nullification on
grounds of unconstitutionality.
Unlike what obtains in some
other jurisdictions, both
article 14 and section 96 (7)
of Act 30 do not specifically
provide for, and draw a
distinction between “bailable”
and “non-bailable” offences. I
am inclined to think that, we
borrowed the “bailable” or
“non-bailable” terms, for ease
of reference, from a
jurisdiction with a different
legal framework, possibly
India, but these are not terms
of art and not statutorily
provided for. On the other hand,
the Indian Penal Code
specifically classifies offences
into bailable and non-bailable.
The terms are defined under
section 2(a) of the Criminal
Procedure Code, 1973 (Cr.Pc),
and with detailed provisions on
their respective scope and
applicability, and the grounds
for the grant of bail in
non-bailable offences.
Instructively then, foreign
precedents are not of much
assistance on the issue of their
scope and applicability.
Giving our article 14 a sui
generis construction, it is to
be noted that bail, not being
an inalienable right, article 14
(4) does not confer on “a
person arrested, restricted, or
detained under paragraph (a) or
(b) of clause (3) of article
14”, an automatic absolute right
to bail in all cases and under
all circumstances. But neither
does it provide for the complete
opposite, namely an automatic
denial of bail. Automatic, does
not, in my view, imply that the
court’s decision on whether bail
must be denied or granted, is
mechanically triggered upon the
mere production of a charge
sheet, as the case may be, with
a stated bailable or
non-bailable offence , even if
the same were a trumped- up
charge, or plainly if the facts
do not support the charge. In
other words, it has never been
the legal nor judicial thinking
that in criminal proceedings,
bail considerations kick in at
the mere wave of a charge
sheet. Fidelity to the rule of
law and due process dictates
that the full panoply of the
judges’ powers be deployed fully
to serve justice to both the
prosecution and the defence
along the entire judicial chain
process. Thus, ordinarily, if
the facts as presented in court
-which must necessarily disclose
the nature of the evidence to be
proferred -do not support the
charge, the person arrested,
detained or charged is entitled
to a discharge. Also, section
96 (7) of Act 30, does not mean
persons charged with any of the
enumerated offences are
completely debarred or
prohibited, from applying for
bail. It is their constitutional
right to apply for bail at any
stage of the judicial process.
But as I shall demonstrate, bail
is inevitably denied on account
of the mandatory prohibition
under section 96 (7) of Act 30.
By way of comparative analysis,
article 14 of the Constitution
does not expressly or impliedly
prohibit the grant of bail to
persons charged with the
offences listed under 96 (7) of
Act 30, as was the expressly
provided under the old 1969
Kenyan Republican Constituition.
Section 72 (5) of the 1969
Constitution of Kenya, was a
definite amendment specifically
effected “to prohibit the grant
of bail to offences punishable
by death.”(Criminal Case No. 115
of 2008 Republic v Milton
Kabulit& 6 Others [2011] eKLR
Refers)
What article 14(3) and (4 ) of
the Constitution of Ghana does
is to vest discretionary power
in the courts, to grant or deny
bail to persons charged with a
criminal offence; under the
clear obligation that the power
shall be exercised rationally-
not arbitrarily or capriciously-
but judicially, in accordance
with substantive and procedural
due process. It does follow
that, in all criminal cases, the
only grounds on which bail may
be granted or denied, are those
set out under section 96
(1)-(6) of Act 30, which
criteria- for grant or refusal
of bail- includes the nature of
the accusation and the nature of
the evidence in support of it.
These are the factors that the
court is obligated to scrutinize
on an application for bail.
Importantly, article 14 (3) and
(4), does not provide for
indefinite pre-trial detention.
Thus, even where for compelling
reasons bail is denied, the
court has a constitutional duty
to provide a fair trial within a
reasonable time, failing which
the person is entitled to be
released on bail. The courts
have a duty to strictly uphold
the constitutional right to a
fair trial within a reasonable
time for persons under pre-trial
detention. That is the principal
antidote against lengthy
pre-trial incarceration periods,
which unavoidably, is a
restriction on liberty and which
also militates against the
presumption of innocence. For
purposes of clarity, I reproduce
the relevant provisions:
(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 either 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.
A further safeguard of human
liberty and dignity is the
constitutional right of
presumption of innocence
guaranteed under article 19 (c )
of the Constitution. This
important right is embodied in
the following International and
Regional instruments to which
Ghana is a signatory.The
Universal Declaration of Human
Rights (UDHR) (Article 11(1),
International Covenant on Civil
and Political Rights (ICCPR)
(Article 14 (2) and the African
Charter on Human and People’s
Rights (7b). I concede that
likewise, this presumption does
not raise an automatic or
absolute right to bail. However,
it being one of the universally
acknowledged most powerful
protections afforded the
individual, it is the juridical
synergy between articles 14 (3)
and (4) in particular and 19 (2)
(c ), on which Plaintiff anchors
his case and prays for the
nullification of section 96 (7)
of Act 30.
The article 14 having provided
the substantive legal framework
within which the right to
liberty operates, to test the
limits of legality of section 96
(7) of Act 30 by reference to
its express provisions viz a viz
the express provisions of
articles 14 and 19(2) (c), begs
the following question. How do
we interprete section 96 (7) of
Act 30? Differently stated,
what is the legislation
designed to accomplish?
Statutory provisions are
equally subject to purposive
interpretation. This has been
the long- standing legal
position as firmly held by such
cases as; Nana Hyeaman 11 v
Osei and Others [1982-83] GLR
495, Eshun and Another v Poku
and Others [1989-90] 2 GLR 572
and Appiah v Biani [1991] 1 GLR
155, and the more authoritative
pronouncement of this court in
the case of Asare v. Attorney
–General [2003-2004] 2SCGLR 823;
Adofo and Others v
Attorney-General and Another
[2003-2005] SGLR 239 and
Republic v High Court, Accra; Ex
Parte Yalley (Gyanae and Another
Interested Parties [2007-2008] 1
SCGLR 512.
An equally significant statutory
interpretation principle
requires that laws that curtail
rights and freedoms, must not be
construed expansively or
liberally, but narrowly or
restrictively.
On the proper construction of
section 96 (7) of Act 30, I am
not persuaded by the opinion
expressed by my Sister Mrs.
AdinyiraJSC. In summary, she
argues that the contrary Benin
opinion arises from “a
mechanistic out of context
construction of the entire
provision within the context of
the word “shall” and as
buttressed by the use of the
phraseology “in a case of”,
rather than the use of “where a
person is charged”. She urges
that our section 96 (5) and (6)
would require some pre-trial
evidential hearing akin to what
obtains in some other
jurisdictions such as the US, UK
and India. Pertinently, she
reasoned:
“Certainly, determining
whether for example a case of
murder has been established by
the prosecution requires a
judicial enquiry into the nature
of the evidence and not by
merely looking at the charge
sheet. This determination by the
court is a mandatory judicial
process required under section
96(6) and it implies a hearing
with the accused present, and
accorded due process. This is
the procedure envisaged under
article 14(1) when a person is
arrested and detained under 14
(i) (g). In some jurisdiction
like US, UK, and India, this
process is usually called a pre
trial session for bail in
non-bailable offences; and
presided over by a superior
court judge that has
jurisdiction to hear such cases.
If section 96(7) of Act 30 is
placed in its proper context it
means that only persons who fit
in these categories of offences
are subject to detention without
bail after the judicial process
elaborated in section 96(5) and
(6) has been followed. I
therefore hold that section
96(7) of Act 30 does not
eliminate the judicial process
in matters of personal liberty
and it is also erroneous to say
access to the courts for bail in
those cases is also ousted. That
is not the intent of the section
and this is not how other
jurisdictions with similar
provisions have understood it.”
But, I found it difficult to
subscribe to her views. Sound
judicial policy, judicial case
management and other prudential
reasons necessitate that some
form of a judicial enquiry be
conducted, particularly at the
pre-trial stage, when persons
are brought before the courts
pursuant to article 14 (3) and
(4). This would enable the
court to decide or give
directions on such pertinent due
process issues as the accused
person’s accessibility to legal
counsel, the thorny issue of
bail, whether the accused
requires psychiatric or some
other medical examination or
treatment, trial dates and other
related matters. Beyond this, I
think that had the legislature
intended the peculiar type of
statutory “pre-trial hearing”
advocated by my learned Sister,
and which specifically obtains
in other jurisdictions, section
96 (7) of Act 30 or some other
legislation, would have
expressly or impliedly provided
for same. Secondly, the
terminologies referred to are
not terms of art. Indeed,
article 14 (3) and (4) does not
even deploy the use of the
specific term “a person charged
with an offence”, although this
is the individual clearly
envisaged under article 14 (4),
for example. Such a person is
simply described or referred to
as “a person arrested,
restricted or detained…and is
not tried within a reasonale
time”. And so I would not think
that the law contemplates a
special bail hearing as
mandatorily required in other
jurisdictions.
Indeed, the case of Republic v
Owusu (Supra) which she relied
on to buttress her views
rationalised that:
“It was only when on the
summary of evidence a case of
murder, treason… etc could be
said to have been committed,
that the court is mandatorily
stopped from granting bail.”
But summary of evidence is
peculiar to trial on indictments
only. And yet a number of the
offences listed under section 96
(7) of Act 30, are subject to
summary trial before the High or
Circuit Courts. How does
summary of evidence fit into the
summary trial mode?
In my view, the whole tenor of
section 96 (1)-(6) of Act 30,
juxtaposed with section 96 (7)
of Act 30, wherein the word
“shall” is employed, invariably
leads to the conclusion that
section 96 (7) of Act 30 is
purposefully designed to curtail
the discretionary power vested
in the courts by the
Constitution, to the end that
persons charged with the
offences listed under 96 (7) of
Act 30 are not entitled to be
admitted to bail. Indeed, it is
the very provision that leads
inescapably to this conclusion.
Otherwise, why the general
section 96 (1)-(6) of Act 30, on
bail and recognisances,
regarding the conditions under
which bail may be granted,
including the criteria, the
amount and other conditions of
bail etc. in the one breadth,
and followed in another breadth
by the mandatory cut -and- dried
subsection (7), which states
that:
“A Court shall refuse to grant
bail:
(a)
In a case of acts of
terrorism…”,
(b)
The use of the word “shall”
denotes an obligation as defined
by section 42 of the
Interpretation Act, 2009, Act
(792) ,which provides:
(c)
“In an enactment the expression
“may” shall be construed as
permissive and empowering and
the expression “shall” as
imperative and empowering.”
In other words, what is the
relevance or utitlity of section
96 (7) of Act 30, if section 96
(1)-(6) are statutory
provisions of general
application intended to cover
all criminal offences, without
exception. In my view, the
language employed, in the
context of the word “shall” as
properly construed, is intended
to prohibit the grant of bail in
those cases specified under
section 96 (7) of Act 30.
Section 96 (7) of Act 30 is
therefore an unlawful addition
to the constitutional
limitations carefully
circumscribed under article 14
(1). It is unstitutional, an
infraction designed to fetter
the discretionary authority
vested in the courts by article
14 (3) and (4) of the 1992
Constitution. To that extent,
section 96 (7) of Act 30
conflicts with the guaranteed
constitutional right to personal
liberty per article 14 (1) and
presumed right of innocence
under article 19 (2) (c)- a
fundamental element of the right
to fair trial- and the same
must be struck down.
Does it mean that striking down
the impugned legislation,
exposes this nation to grave
risk, since the well-
intentioned, albeit
unconstitutional, imnvalidated
legislation, was designed to
promote national and
international security and
stability, by offering
protection against violent
crimes? Does it amount to an
abandonment of our national and
international obligations ? I do
not think so. I would not
underestimate the potentialities
of article 14 of the
Constitution and section 96 (1)
–(6) of Act 30 in our
jurisprudence. These laws are
sufficiently elaborate, weighty
and far-reaching enough to
assure simultaneously a healthy
balance between the two
important competing rights and
interests which the constitution
has a burden to uphold, namely,
the personal liberty rights of
accused persons and national and
international security and
stability. Indeed, the court’s
constitutional authority under
article 14, coupled with section
96 (1)-(6) of Act 30, contain
sufficient substantive and
procedural safeguards for the
protection and preservation of
society. What remains to be done
is for the State to strengthen
the law enforcement institutions
holistically, through the needed
reforms, eliminating the
systemic weaknesses that result
in underperformance and further,
provide adequate resources, to
enable persons whose liberty
must unavoidably be
restrained, obtain the benefit
of a trial within reasonable
time.
Finally, following the resultant
declaratory orders, I urge, that
we examine closely the
constitutional doctrine of
prospective overulling and opt
for orders that would minimize
an ugly direct or indirect
effects of our decision in this
case.
As a general rule, a declaration
of unconstitutionality, applies
both retrospectively and
prospectively. Under the
doctrine of prospective
overruling, which has its origin
in American jurisprudence, and
which has been adopted,
developed and applied in
deserving cases in other
jurisdictions, including India,
Malaysia, Signapore, United
Kingdom, Uganda and other
Commonwealth countries, this
court has power to decide
whether, to limit the
retroactive effect of the
declaration of invalidity. The
rationale for the the rule is to
provide a pragmatic solution to
total chaos or anarchy,
inconvenience, hardship and
injustice in the administration
of justice, following a
declaration of
unconstitutionality, in those
clearly bona fide cases where
isses had been determined in the
honest belief that the impugned
legislation was valid law. A key
factor that should influence the
invocation of the rule is the
extent of the entrenchment of
the existing rule. Invoking
the doctrine would thus prevent
an indiscriminate wholesale
nullification of long standing
settled issues and decisions
based on the invalidated law, a
potential source for large scale
re-litigation of settled rights
and obligations and a
multiplicity of suits.
We have constitutional authority
to determine whether our
decision shall operate
prospectively or
retrospectively. It derives
from article 1 clause (2),
sub-clause (2) of the 1992
Constitution, which provides:
“The Supreme Court, shall for
the purposes of a declaration
under clause (1) of this
article, make such orders and
give such directions as it may
consider appropriate for giving
effect, or enabling effect to be
given, to the declaration so
made.”
In this instant case, where the
impugned legislation has been
applied in a large number of
cases over a long period of
time, I urge that we avoid a
strict retroactive application
of our decision, so as to avert
a wholesale re-opening of
settled issues and prolonged
litigation in relation to all
persons being held in pre-trial
detention under the impugned
section 96 (7) of Act 30.
Official records show that as of
4th May, 2016, as
many as two hundred and fifty
–six (256) accused persons were
being held in pretrial detention
on “non bailable offences”
charges at the Nsawam Medium
Security prisons alone. In order
to avert a crisis in the
administration of justice, the
full effects of this decision
must be managed in a way that
would not over burden our
already distressed criminal
justice system. I have
confidence that the full scope
and applicability of the
doctrine will be explored,
developed and clarified through
case law, as had been done in
other jurisdictions.
This case marks a watershed in
the history of our criminal
jurisprudence. I commend the
Plaintiff, a private legal
practitioner for his industry in
initiating this judicial review
litigation in the public
interest, giving us the
opportunity to examine bail law
in the light of our
constitutional framework.
(SGD) G. T.WOOD (MRS)
CHIEF JUSTICE
DOTSEJSC:
I have had the opportunity of
reading the opinions of my
learned Sister and Brother,
Adinyira (Mrs) and Benin JJSC.
The facts and issues arising out
of this case have been admirably
set out in the opinion of Benin
JSC and I need not repeat them
in this opinion.
INTRODUCTION
This is a concurring opinion to
the conclusions arrived at by my
brother, Benin JSC and I may
only relate the facts of the
case whenever the need arises
for purposes of emphasis.
On the contrary, I should be
deemed as being unable to agree
with the conclusion of my
respected sister AdinyiraJSC
that section 96 (7) of Act 30 as
amended is not inconsistent with
the provisions on personal
liberties guaranteed under
article 19 (2) (c) of the
Constitution 1992.
What then are my reasons in
agreeing with Benin JSC that
section 96 (7) of the Criminal
and other Offences (Procedure)
Act, 1960, (Act 30) as variously
amended is inconsistent with and
contravenes article 19 (2) (c)
of the Constitution 1992 and for
that reason is null, void and of
no effect, and should be struck
down?
DUTY OF COURTS
The power of the common law
courts including the courts in
Ghana to admit persons accused
of crime to bail has over the
years been recognized as an
integral part of our criminal
jurisprudence. Professor
Henrietta Mensa-Bonsu, writing
on the topic “The right to Bail,
whose Right? Statute, Judge made
law and the 1992 Constitution”,
(and published in the
January-June 2014 Vol. 3, No 1,
Banking and Financial Law
Journal of Ghana, pages
199-223), gave an overview of
how the issues on bail in Ghana
have been perceived in the
following terms, with which I
agree.
“In Ghana, issues surrounding
bail have often generated
controversy either by the denial
of bail or by terms under which
it is granted. In addition, the
power as inherited at common law
has been greatly curtailed by
legislation. Since 1992, the
Supreme Court of Ghana has made
some effort to straighten out
the exercise of the power as it
affects the constitutional
rights of the citizen, but this
effort notwithstanding, the
issues pertaining to bail have
been persistent and recurrent in
nature. Rightly, or wrongly, the
public now perceives of this
power as an instrument for
punishing politically unpopular
defendants through the courts,
or a means by which powerful
accused persons escape their
just deserts. These incorrect
notions of the role and purpose
of that instrument thus
underscores the need to subject
the instrument to some
examination, in order to shed
some light on its historical
antecedents and thereby
elucidate the principles that
have guided and continue to
guide the exercise of this power
by situating it in its
historical context.”
It is in the above context that
I consider the plaintiff’s
action as a real challenge and
opportunity to address some of
the issues that are relevant in
the said article.
FACTS
The crux of the Plaintiff’s case
is that, section 96 (7) of Act
30, as amended, contravenes
articles 15 (2) and 19 (2) (c)
of the Constitution 1992.
Section 96 (7) of Act 30, as
amended by Act 633, 2002 and
section 41 (1) (a) of the
Anti-Terrorism Act, 2008, Act
762 provides as follows:-
“a court shall refuse to grant
bail in a case of treason,
subversion, murder, robbery,
hijacking, piracy, rape and
defilement or escape from lawful
custody; or acts of terrorism
and (b) where a person is being
held for extradition to a
foreign country”
The plaintiff states rightly in
my view that the no bail
provisions as captured supra in
section 96 (7) of Act 30 as
amended has raised serious
constitutional challenges and
issues especially when viewed
against the automatic
presumption of innocence until
proven guilty or confession of
the crime which are
constitutional guarantees under
the Constitution 1992.
What should be noted is that,
the provisions in section 96 (7)
of Act 30 already referred to
supra have completely ousted the
unquestionable and time honoured
traditions of the discretionary
nature of the court’s powers to
grant bail to an accused person
where the charge or offence is
even one of those in respect of
which the court’s discretion has
now been ousted.
It must also be observed that,
section 96 (4) of Act 30
provides as follows:-
“A court shall not withhold or
withdraw bail merely as a
punishment.”
Section 96 (5) of the same Act
30 also provides as follows:-
“A court shall
refuse to grant bail if it is
satisfied that the defendant
(a)
may not appear to stand trial,
or
(b)
may interfere with a witness or
evidence, or in any way hamper
police investigations, or may
commit a 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 is on
bail”.
All the above procedural rules
in Act 30 in my opinion have to
be practicalised with the
constitutional provisions
guaranteeing fundamental human
rights and personal liberties in
Chapter 5 of the Constitution
1992. In any case, sections 96
(4) and (5) of Act 30 do not
take away the discretion of the
courts in the issue of grant of
bail.
What then is the effect of
providing that a court should
not withdraw, withhold or refuse
to grant bail as a punishment
when it is provided in the same
law that the court’s are
forbidden to grant bail in the
vast number of cases as listed
in section 96 (7) of Act 30 as
amended?
What then comes to my mind is
who determines for example that
an offence is defilement, rape,
murder, robbery etc. such that
bail is not to be granted by the
courts? This issue faced Roger
Korsah J, ( as he then was) when
presiding in the High Court,
Kumasi in the case of Seidu v
Republic [1978] 1 GLR 65 in
which he stated when considering
an application for bail under
the no bail regime as existing
under the then prevailing NRCD
309 as follows:-
“The issue as to whether a case
was one of murder or some other
crime had to be determined
objectively. Although the
prosecution had to describe what
charge it would proffer against
a party, it was however the
duty of the courts to decide
whether the case was one of
murder or some other crime
considering the evidence in
support of the accusation. A
case would not be considered as
a murder case until it had been
decided by the court having
jurisdiction to try it to be
so.”
At this stage, I think it is
somewhat important to set out in
detail, the facts in the
Seidu v Republic case
already referred to supra.
FACTS IN THE SEIDU CASE
The Applicants for bail therein
were facing a provisional charge
of murder. They were arrested
upon the confessions of an
accomplice who named them as
being his accomplices in the
murder of the deceased. The
Applicants denied the charge and
were granted bail by the
District Court. The Republic
then applied to the High Court
to quash the grant of bail by
the District court granting
bail. The Applicants attended
court voluntarily to the
Certiorari hearing.
The High Court, in quashing the
order of bail held that,
since a district court was
incapable, by virtue of section
39 (1) (b) of the Courts Act,
1971, (Act 372) of trying an
offence punishable by death or
imprisonment for life, it had no
jurisdiction to grant bail.
(This proviso is now contained
in section 48 (1) (b) of the
Courts Act, 1993 (Act 459).
The Applicants then applied to
the High Court for bail. After
nine months of police
investigation, the only evidence
found against the applicants was
a blood stain found in the van
belonging to the wife of the
first applicant. Even though the
blood was found upon analysis to
be human blood, the Pathologist
was unable to declare that the
sample of blood belonged to the
same blood group as the
deceased. The issue that faced
the court in the Seidu case
was whether despite the
mandatory provisions of section
96 (7) of Act 30, as amended by
the Criminal Procedure Code
(Amendment) Decree, 1975 (NRCD
309), the court could, in the
absence of evidence supporting a
charge of murder, grant bail and
furthermore, who had the right
to decide whether a case was one
of murder or some allied crime.
Section 96 (7) of Act 30, as
amended by NRCD 309 provided as
follows:-
“A court shall refuse to grant
bail (a) in a case of treason,
subversion, murder, robbery,
hijacking, piracy or escape from
lawful custody…”
It is apparent that, the current
section 96 (7) of Act 30 is
almost similar to the provisions
under the legal regime when
Seidu v Republic was decided in
1978, except that some more
offences have been added to the
no bail regime.
Based upon the above facts and
the legal regime then existing
in 1978, Roger Korsah J, held as
follows, (see page 68 of the
report):-
“Now before Act 30, s.96 was
amended by N.R.C.D 309, the
granting of bail in murder cases
was not unknown although it was
uncommon, and no one doubted the
power of the High Court to grant
bail in such cases. My
brother Taylor J, has in
characteristic style dealt with
this topic in Okoe v Republic
[1976] 1 GLR 80 at p.87 and
I have no desire to belabour the
point, but suffice it to say
that the sole test as to
whether a party ought to be
bailed is whether it is probable
that, that party would appear to
stand his trial. Of course,
in applying this test, regard
must be had to the nature of the
accusation, the nature of the
evidence in support of the
accusation and the severity of
the punishment which conviction
will entail. But for the
provisions of Act 30, s. 96 as
amended by N.R.C.D 309, there is
no doubt in my mind that, on a
consideration of the evidence in
support of the accusation, every
court having power so to do
would grant bail to the
applicants herein.” emphasis
supplied
From the above analysis and
rationale of the decision of the
learned Judge in the Seidu v
Republic case, already
referred to supra, the following
principles must guide courts
having jurisdiction to consider
bail applications in serious
cases such as indictable
offences and or offences tried
summarily.
1.
Whether the accused would appear
to stand for his trial
2.
The nature of the evidence in
support of the charge or offence
against the accused.
3.
Closely linked to the above is
the nature of the accusation,
and
4.
The severity of the punishment
which conviction will entail.
It is therefore quite clear
that, the power of the courts to
grant bail in the offences for
which bail had been debarred was
not uncommon. I believe it was
this realization by the learned
Judge in the Seidu v Republic
case which led him to again
state as follows:-
“A careful reading of Act 30, s.
96 (7) as amended by N.R.C.D
309, especially having regard to
the phrase “shall refuse” would
suggest that the legislature
recognized the power bestowed on
the High Court to grant bail in
murder cases and did not seek to
abolish it, but was saying that
the court should not exercise
the power in murder cases.”
By parity of reasoning, it meant
that the legislature was saying
that, the courts should not
exercise that power in all the
offences listed in the amendment
to section 96 (7) as currently
existing in Act 30. There is
therefore the need to examine
the factors to be considered
very critically when
applications for bail in respect
of these offences are being
considered. See also the
decision of Aboagye J, (as he
then was) in the case of Prah
and Others v The Republic [1976]
2 GLR 278 where he 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 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.”
The decision in the Prah v
Republic case is consistent
with the reasoning in the Seidu
case, that where the facts in a
charge, do not support the
offence charged, the accused is
entitled to bail even in non
bailable offences.
What must be noted in the
instant case is that, the
provisions guaranteeing the
enjoyment of personal freedoms
have been provided in Article 19
(2) (c) of the Constitution
1992, among others. This being a
constitutional provision, it is
on a higher pedestal in the laws
of Ghana, reference article 11
(1) of the Constitution 1992. It
means therefore that Article 19
(2) (c) of the Constitution
takes precedence in the laws of
Ghana and any law found to be
inconsistent to this
constitutional provision, must
on the basis of articles 2 (1)
(a) and 130 (1) (b) of the
Constitution 1992 give way and
be declared inconsistent and in
contravention of the
Constitution 1992. In my
opinion, section 96 (7) of Act
30 as amended, is one such
legislation that is inconsistent
with the Constitution 1992.
Indeed, in looking at the entire
section 96 of Act 30, there is
no doubt, the intention of the
legislature is to ensure that
all persons accused of crime are
not unduly denied of their
personal liberties during the
period of their arrest,
arraignment and trial and before
their conviction and sentence.
1.
I believe that explains the
rationale for the liberal
provisions in section 96 (1)
which allows the courts to admit
persons to bail pending trial or
on appeal on conditions set by
the courts.
2.
Section 96 (2) re-enforces the
provisions of Section 96 (1) by
granting power to the High Court
to vary or modify the bail
conditions granted by the lower
courts.
3.
S. 96 (3) states that the amount
of bail fixed shall not be harsh
or excessive and shall have
regard to the circumstances of
each case.
4.
S. 96 (4) re-emphasises the
principle that courts should not
use bail as a punishment to
accused persons appearing before
them.
5.
S. 96 (5) sets out the
conditions upon which a court if
satisfied shall refuse to grant
bail under certain conditions
which indeed are common law
principles to which reference
has been made in this judgment.
6.
S. 96 (6) sets out the
conditions which the courts are
to consider and take into
account when evaluating whether
an accused if granted bail will
appear and stand trial. These
are also common law principles
which the courts have applied
over the years satisfactorily,
and
7.
S. 96 (7) which contains the
impugned provisions where bail
has been automatically ousted in
respect of the offences listed
therein.
The general tenor of section 96
of Act 30, which deals with
grant of Bail in general
therefore gives very clear
indications that on the whole,
the courts have a discretion to
grant bail to persons appearing
before them in criminal cases
upon conditions stated therein.
The ousting of grant of bail in
s.96 (7) is therefore odd and an
unnecessary interference with
the discretion of the Courts.
In construing s. 96 (7) of Act
30 as amended, a court of law
must act in such a way as not to
defeat the intention of the
Legislature, as gleaned from the
general tenor of the entire
section 96 of Act 30 as a whole.
In this case, even considering
the Criminal and Other Offences
(Procedure) Act 1960 as a whole
with specific reference to
section 96, thereof, it is clear
that the legislative intent
contained therein is not to use
the issue of bail as a
punishment. Further, the grant
of bail should also not be on
harsh and excessive conditions.
With the above as the
philosophical guide to the
unlocking of the principles
behind the provisions contained
therein, courts of law must
apply the rule of construction
based upon the four corners of
the Act – ex visceribusactus.
Thus, it was stated by Coke in
the Lincoln College case,
(1595) 3 Co. Rep. 586 as
follows:-
“The office of a good expositor
of an Act of Parliament is to
make construction on all parts
together, and not of one part
only by itself, - for no one can
rightly understand any part
without perusing the whole again
and again.”
Justice V.C.R.A.C Crabbe,
in his invaluable book,
“Understanding Statutes”
page 60, listed the following as
the factors a court of law must
look for when construing an Act
of Parliament.
a.
“A Court of law will not be
astute to find out ways in which
to defeat the object of the Act,
see Smith’s case (In re London
Marine Insurance Association
(1869) LR 4 Ch. App. 611 at
614.)
b.
A court of law will not only
look at the language of the
preamble or of any particular
section but at the language of
the whole Act. See Bywater v
Branding (1828) 7 B & C 643 at
p. 660.
c.
A court will look at the
context, the collocation and the
objects of the words relating to
the matter in hand in order to
interprete the meaning of the
words according to what would
appear to be the meaning
intended to be conveyed by the
use of the words. See Rein v
Lane (1867) LR 2 QB 144 at
p. 151.
d.
A court of law will not admit
the principle that abstract
justice would require or justify
a departure from the established
rule of construction. See
Exp. Sepulchre’s (1864) 33 LJCH
372 at 375.
e.
A court of law will not, in the
treatment of two consecutive
subsections in an Act, isolate
one from the other and give
effect to each without regard to
the other unless it is
absolutely necessary.”
See RomerL.J, in Minister of
Health v Stafford Corporation,
1952 ch.730
Having considered all the above
factors even without the
constitutional provisions in
article 19 (2) (c) of the
Constitution 1992, I am of the
view that, section 96 (7) of Act
30 as amended must be construed
such as to achieve the
legislative intent of ensuring
that persons who stand trial are
not subjected to arbitrary and
capricious use of the power of
bail by denying them the
enjoyment of their personal
liberties and freedoms.
It must therefore be observed by
all courts that, applications
for bail must be considered when
all the facts of the case are
presented before them. This is
the only way by which a court
can make an informed decision
i.e. by determining whether a
prima facie case of rape,
defilement, murder, robbery,
narcotics etc. has been
committed to enable the court
decide whether if bail is
granted the accused will appear
to stand trial.
The facts of the case of
DodzieSabbah v The
Republic[2009] SCGLR 728 is
a real testimony and proof of
the fact that, the preferment of
charges against persons accused
of crime must be done in good
faith. In otherwords, the
prosecutorial bodies, especially
the Police, the
Attorney-General’s Department,
Narcotics Control Board,
Economic and Organized Crime
Unit etc. must not use their
powers to charge persons
capriciously and arbitrarily
without any regard to the facts
of the case and the laws
applicable. Unfortunately, that
was what happened in the
DodzieSabbah case referred to
supra
See also the unreported decision
of this court in the case ofDodzieSabbah
v The Republic, Suit No.
J3/3/2012 dated 11th
June, 2015 which was in respect
of Article 14 (7) of the
Constitution 1992. Indeed if
regard is not paid to the good
faith principle in the
preferment of criminal offences
against accused persons, the
Government would be saddled and
burdened with the payment of
huge compensations to persons
acquitted on appeal who satisfy
the requirements set out in the
unreported decision in the
DodzieSabbah case on Article 14
(7) of the Constitution 1992.
By parity of reasoning, it can
fairly and firmly be stated
that, a case can only be said to
be rape, defilement, murder,
robbery etc. by the court having
jurisdiction to try that
particular offence. The
practice where courts which do
not have jurisdiction to try an
offence grant accused persons
bail should not only be frowned
upon but should actually not be
the practice. In this
respect, committal proceedings
held in the District Courts
pursuant to section 181 – 188 of
Act 30 should not be construed
as having conferred jurisdiction
on those courts to enable them
adjudicate in indictable
offences.
Thus, it is only the court,
having jurisdiction to try an
offence that can on the facts as
presented decide that this
offence is one of murder, rape,
robbery etc or some other
offence, and then consider
whether on the facts as
presented after bail hearings,
decide to grant or refuse bail.
Furthermore, in view of the
constitutional position I have
taken that section 96 (7) of Act
30 is inconsistent with article
19 (2) (c) of the Constitution
1992, a court must consider
whether to grant bail or not in
the light of the provisions of
sections 96 (4) (5) and (6) of
Act 30.
This is because, taking a cue
from the meaning of bail which
can be summed up as the
procedure by which a person
arrested, detained and or
imprisoned for an offence is set
at liberty, care must be
taken to protect the personal
rights of the accused before he
is convicted.
That is a conditional liberty.
It is conditional for further
proceedings of the person to
whom bail has been granted. The
sole aim of this is to secure
the release of the person
arrested pending his trial upon
sufficient security for his
appearance.
This process is a further
illustration of the principle of
presumption of innocence until
proven guilty which is a
constitutional guarantee under
Article 19 (2) (c) of the
Constitution 1992. If this
presumption is pursued to its
logical conclusions, it has the
tendency of reducing the huge
numbers of remand prisoners
under the criminal justice
system who are on remand
basically because of this no
bail legal regime. Indeed, it
will remove the blot in our
criminal justice system of just
remanding accused persons who
have no chance of being
prosecuted because of lack of
evidence.
However, if a court is satisfied
from the facts presented in any
case, that the accused when
released on bail will not appear
in court, then the court would
be perfectly justified in
refusing to grant bail by giving
reasons.
This point was made with clarity
by Charles Crabbe JSC, sitting
as a single Judge of the Supreme
Court in the case of Republic
v 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.”
I think it is worthwhile to
relate some of the facts in the
Ex-parte Attorney-General case
just referred to supra. This is
to ensure that the logical
reasoning and historical
narration of the antecedents of
bail in the said decision of
Charles Crabbe JSC would be
understood in proper context.
FACTS IN EX-PARTE
ATTORNEY-GENERAL
This was the case in which the
Special Prosecutor for the Armed
Forces Revolutionary Council
Special Tribunal had been tried
and convicted on two counts of
extortion and sentenced to seven
years imprisonment by the
Circuit Court, Accra. He applied
to the High Court for bail
pending appeal and this was
granted by the High Court. The
learned High Court Judge in
granting the application for
bail stated that “in my view
proof of a vital ingredient of
the offence of extortion is
missing. On this ground alone
the conviction is prima facie
bad in law and the appeal is
likely to succeed. I do not
think I need to wait for the
record of proceedings to make up
my mind”.
The Attorney-General, the
Applicant therein, sought
certiorari proceedings to quash
the grant of bail on the grounds
of error of law on the face of
the record. Even though the
substantive application for
certiorari on grounds of error
of law was refused by the
Supreme Court, the Court took
pains to discuss in depth the
historical and jurisdictional
basis of the discretionary
nature of the grant of bail
pending trial and appeal. In
view of the learning which is
derived from this judgment, I
will refer to it in extenso from
pages 418-420 of the report.
“The grant of bail to persons
facing trial is a matter within
the sole discretion of the trial
court.
In a famous American case Stack
v. Boyle 342 U.S. 1 at pp. 4 and
5 (1951) the Supreme Court
stated that:
“The right to release before
trial is conditioned upon the
accused’s giving adequate
assurance that he will stand
trial and submit to sentence if
found guilty . . . Since the
function of bail is limited, the
fixing of bail for any
individual defendant must be
based upon standards relevant to
the purpose of assuring the
presence of that defendant.”
The Statute of Westminster,
Prisons and Bail Act, 1275 (3
Edw. 1 c. 15),
appears to be the first
statutory regulation on the
question of granting bail. This
had come about as a result of
the misuse of the discretionary
power and, of course, then
things were not as they are now.
That statute laid down certain
cases in respect of which
magistrates could not grant
bail. Firstly, serious
offences, such as murder and
treason. Secondly, offences
where there is very little doubt
as to the guilt of the accused,
such as pickpockets caught in
the act. Thirdly, offences
relating to the escape of
prisoners and the like.
A noteworthy feature of the
statute is that it did not
attempt to lay down a single
principle on which the grant of
bail should be based. A list is
provided. A list for the
grant.And a list for refusal.
There was no fundamental change
in the law between 1826 and
1875. True, there were changes
in the procedure in order to
curb and obviate abuse. The
Criminal Law Act, 1826 (7 Geo.
4, c. 64) laid down the
principle that bail should be
granted in cases where the
presumption of guilt is small.
It also stated that:
“. . . where any Person shall be
taken on a Charge of Felony or
Suspicion of Felony . . . and
the Charge shall be supported by
positive and credible Evidence
of the fact, or by such Evidence
as . . . shall . . . raise
strong Presumption of the Guilt
of the Person charged, such
Person shall be committed to
Prison . . .”
The principle then again is that
bail shall not be granted where
there is the strong likelihood
of conviction. The Prevention of
Vexatious Removal of Indictments
into Court of Kings Bench Act,
1835 (5 & 6 Will. 4, c. 33), s.
3—swept away all the factors
which previously governed the
grant of bail.
In their place a single
criterion was substituted—that
of the accused being available
to stand trial. The
Indictable Offences Act, 1848
(11 & 12 Vict., c. 42), placed
the question of bail solely
within the discretion of the
committing justice. And as
Stephen commented in A
History of the Criminal Law of
England (1883) Vol. 1, p.
239:
“The short result is that the
justice may in his discretion
either grant bail or refuse to
bail any person accused either
of felony or of any common
misdemeanour except libel,
conspiracies other than those
named, unlawful assembly, night
poaching and seditious
offences.”
In respect of the latter
offences bail could not be
refused. The Indictable Offences
Act, 1848 provided that in cases
of treason no bail could be
taken except by the High Court.
The only condition upon which
bail would then be granted as
provided by section 23 of the
Act was:
“procuring and producing such
surety or sureties as, in the
opinion of such justice, will
be sufficient to ensure the
appearance of such accused
person at the time and place
when and where he is to be tried
for such offence.”
The Bail Act, 1898 (61 & 62
Vict.,c. 7)
modified this obsolete
requirement of sureties. An
accused could be admitted to
bail on his own recognisance.
From this little skirmish into
history it does appear that the
guiding principle, even in
legislation, for granting
bail is that the accused person
should appear for the further
proceedings. That is the
intendment of the provisions of
our own Code relating to the
grant of bail. The modern
position regarding bail is
summed up by Archbold, Criminal
Pleading, Evidence and Practice
in Criminal Cases (36th ed.),
pp. 71-72, s. 203 thus:
“The proper test of whether bail
should be granted or refused is
whether it is probable that the
defendant will appear to take
his trial . . . The test should
be applied by reference to the
following consideration:
(1) The nature of the
accusation;
(2) The nature of the evidence
in support of the accusation;
(3) The severity of the
punishment which conviction will
entail;
(4) Whether the sureties are
independent or indemnified by
the accused person.”
I deemed it worthwhile to have
quoted the long narrative from
the above judgment for the
following reasons:-
1.
The historical analysis of the
development of bail by the
English courts is relevant for
our purposes because apart from
England being our colonial
masters, most of our received
law has had a lot of English
influence.
2.
Secondly, our system of law is
based on the common law which
draws a lot from English law and
jurisprudence.
3.
Thirdly, unlike the English
practice, our presumption of
innocence until proven guilty is
a constitutional guarantee. This
means that, this presumption
takes precedence over all
statutory legislation. Under
English law, this presumption of
innocence is a common law
principle embedded in their
criminal jurisprudence.
4.
Fourthly, the issue of bail in
the English courts being largely
a discretionary matter within
the province of the Judge is
very much similar to our own
criminal procedure legislations
and practice.
5.
Fifthly, the analysis in the
judgment under reference is also
in tune with modern trends in
criminal procedure which has
been embedded into our
constitutional provisions in
article 19 of the Constitution
1992 guaranteeing fair trial and
also other basic provisions
guaranteeing personal freedoms
and liberties in articles 14,
15, 16 and 17 just to mention a
few under the Constitution 1992.
6.
Finally, the quotation from
Archbold, Criminal Pleading,
Evidence and Practice is almost
similar to our own provisions in
section 96 (6) of Act 30.
What this means is that section
96 (7) of Act 30, if read in
conjunction with sections 96 (4)
and (5), alongside the numerous
cases on the subject of bail
pending trial are sufficient to
preserve the integrity and
sanctity of our criminal
procedure in line with the
constitutional guarantees
enshrined in Article 19 (2) (c)
of the Constitution 1992.
The discretionary nature of the
issue of grant of bail was not
lost on the learned Judge in the
ex-parte Attorney-General case.
Taking a cue from the decision
and analysis of the facts and
the historical context of bail
applications and legislations in
this country and under English
law, I am of the very firm
conviction that, the striking
down of section 96 (7) of Act 30
as amended, as being
inconsistent and in
contravention with Article 19
(2) (c) of the Constitution 1992
will not create any vacuum in
our criminal jurisprudence. This
is because sections 96 (4) (5)
and (6) of Act 30 contain
adequate provisions which if
properly applied, harmonised and
administered by the courts may
achieve the same results without
any trace of unconstitutionality
as the present legal regime
connotes.
It would thus appear that,
despite the striking down of
section 96 (7) of Act 30, which
forbids the grant of bail in the
specific offences mentioned, a
court having jurisdiction to try
an offence, may for good reason
refuse to grant bail to an
accused even in a so called
bailable offence if the facts of
the case show clearly that the
accused, because of his
antecedents, is not likely to
appear and stand trial if
granted bail.
The decision of my brother Benin
JSC, in which I concur is not a
carte blanche for the courts to
admit every Tom, Dick and Harry
to bail pending trial because of
the removal of the statutory
shackles in the impugned section
96 (7) of Act 30. I believe the
courts having jurisdiction in
the offences stated therein,
have an unfettered discretion to
grant bail using the time
honoured principles and
traditions that have guided the
courts and also as provided in
section 96 (4) and (5) of Act
30, already referred to supra.
In my research into this case, I
have found the case of
Republic v Court of Appeal, Ex
parte, Attorney-General (Frank
Benneh) case [1998-99], SCGLR
559, at 568, where Edward
WireduJSC,(as he then was)
presiding, Adjabeng, Atuguba,
concurring for different reasons
and Sophia Akuffo, JJSC,
KpegahJSC dissenting, stated the
following in the case where the
Attorney-General applied to the
Supreme Court for certiorari to
quash the decision of the Court
of Appeal in granting bail to
the accused, Frank Benneh
therein in a narcotics related
offence. Whilst refusing the
application for certiorari the
majority per Edward WireduJSC
(as he then was) stated the
following which I find very
instructive and a useful guide:-
“It is the right of every person
in Ghana to enjoy his liberty,
freedom of movement, etc. as
enshrined in the 1992
Constitution. It is also the
duty of the courts to protect,
defend and enforce these rights
whenever they are being
suppressed or stifled by any
authority or persons in
authority. In the instant case,
the accused is presumed to be
innocent until it is otherwise
established. It would
therefore be unjust to deprive
him of his right to enjoy his
freedom in the absence of any
law prohibiting the grant of
bail to him under the
circumstances as established by
the facts of this case. Respect
for human rights is an attribute
or an element of good
governance, and all efforts must
be made to ensure it’s
observance. The trial tribunal
was therefore not justified
under those circumstances to
refuse the accused’s request for
bail. The Court of Appeal was
therefore right in granting him
bail.”
It must be noted and observed
that the above decision was
given by the Supreme Court on 2nd
December 1998 before the
impugned section 96 (7) of Act
30 in it’s present form was
enacted in 2002 and 2008 in
respect of the Anti-Terrorism
Act, Act 762. Notice is however
made of the amendments earlier
introduced by NRCD 309.
Secondly, the Supreme Court
broadly considered the
constitutional provisions
guaranteeing personal freedoms
and the principle of being
presumed innocent until the
contrary was proved or
established in court.
Thirdly, the Supreme Court did
not measure those personal
liberties against any law which
violated the enjoyment or
threatened enjoyment of those
rights.
That explains why it went on to
state that the enjoyment of
those rights could be curtailed
by the prohibition of the grant
of bail under circumstances
established by law. However,
statutory interventions, no
matter how very well intended
cannot take away constitutional
rights guaranteed under the
Constitution.
Whilst conceding the fact that
the formulation of the principle
of law on the protection of
personal liberties in the Frank
Benneh case was very liberal and
wide, the case nonetheless
states very useful lessons and
guide on the curtailment of
personal liberties.
The Supreme Court must be
understood to have frowned on
curtailment of personal
liberties as guaranteed under
the Constitution 1992.
However, as has been analysed
and decided by my brother Benin
JSC, the provisions of article
19 (2) (c) of the Constitution
1992 are such that, section 96
(7) of Act 30, even though is a
law legitimately passed as an
Act of Parliament, is
inconsistent with the provisions
of article 19 (2) (c) of the
Constitution 1992.
I believe that, the majority
opinion in the Frank Benneh
case, upheld the principle that
an accused is presumed innocent
until the contrary is proved.
The decision in the instant case
will also improve upon and
expand the said principle.
How did the case law on the
operation of grant of bail in
the very serious offences fair
until the decision in the Frank
Benneh case supra.
The case of Okoe v Republic,
already referred to supra comes
up for mention. In this case,
the High Court per Taylor J, (as
he then was) held as follows:-
“Section 96 of Act 30 as amended
by NRCD 309, s. 2 substantially
consolidated the common law
principles governing the grant
of bail when a person was
brought to court and there was
no question of delay in his
prosecution.
Once there was unreasonable
delay in prosecuting the case,
Section 96 was inapplicable and
article 15 (3) (b) and (4) of
the Constitution 1969 (now
Article 14 (3) (b) and (4) of
the Constitution 1992) became
applicable and in such a
situation, bail in all cases
must be given subject only to
the conditions prescribed in the
article.”
Based on that criteria, the
Applicant therein was admitted
to Bail. What must be noted here
is that, but for the issue of
unreasonable delay in the
prosecuting of the applicant
under the relevant
constitutional provisions, the
applicant would have been denied
his constitutional right of
being declared innocent until
proven guilty.
Another case worthy of mention
is the case of Abiam v The
Republic [1976] 1 GLR 270
where Mensa Boison J, also
considered the effect of section
96 of Act 30 as amended by NRCD
309 which stipulated a mandatory
prohibition against the grant of
bail in murder offences in
contra distinction to an offence
of attempted murder which was
the offence therein charged in
the Abiam case, wherefore the
applicants therein were
accordingly granted bail because
there was no statutory
injunction against the grant of
bail.
In the case of Boateng v
Republic, [1976] 2 GLR 444,
Mensa Boison J, again, when
considering a bail application
in respect of the Applicant
therein who had been charged for
stealing cocoa held whilst
dismissing the application for
bail as follows:-
“since the charge of stealing
cocoa was included in the
definition of the offence of
subversion under the subversion
Decree, 1972 NRCD 90, S.1(1),
the Court was precluded under
section 96 (7) (a) of Act 30 as
amended by NRCD 309 from
granting the application for
bail pending trial.”
Similarly, in the case of
Dogbe v The Republic [1976] 2
GLR, 82 Taylor J, (as he
then was) reiterated his earlier
stance in other cases that “the
provisions of Act 30, S. 96 (7)
as amended by NRCD 309 were
mandatory and imperative. They
ousted the hitherto
unquestionable ancient and time
honoured discretion of the
courts to grant bail to a person
accused of crime when the case
was inter alia, even murder.”
It will thus be seen that,
before the decision of the court
in the Frank Benneh case supra,
the courts were generally
refusing to grant bail to
persons accused of offences in
respect of which the no bail
regime had been legislated. The
only exceptions were instances
where, in the opinion of the
court, there was unreasonable
delay in the prosecution of the
accused persons. See Gyakye v
Republic [1971] 2 GLR 280,
and Republic v Arthur,
[1982-83] GLR 249, where the
application for bail in a case
which involved murder, pending
trial, was refused on the
grounds that there was no
unreasonable delay contrary to
the decision in Gyakye v
Republic.
All these decisions indicated
quite clearly that, the
imperative and mandatory
provisions of section 96 (7) of
Act 30 as amended by NRCD 309
which was the then prevailing
legal regime, constituted major
set back to the courts in their
quest to grant bail to persons
accused of crimes in respect of
which Bail was to be refused.
The only exception was that of
unreasonable delay as provided
in Article 14 (4) of the
Constitution 1992 which states:-
“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, either 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.”
Even what constituted this
unreasonable delay was not based
on any objective criteria, but
was subjective. As a matter of
fact, it can safely be concluded
that, the mandatory provisions
in section 96 (7) of Act 30, as
amended, constituted a major set
back and a clog on the powers
of the courts to admit persons
standing trial for offences in
respect of which courts were
precluded from granting bail.
Whilst conceding the fact that,
courts could still have granted
bail using their ancient and
time honoured discretion in
granting bail, the position
under the mandatory provisions
of s. 96 (7) of Act 30 as
amended are a major inhibiting
factor and quite intimidating.
Such was the position of the
case law before the decision in
the Frank Benneh case, referred
to supra which unfortunately did
not receive massive following
until the decision in the Gorman
case already referred to was
handed down by the Supreme
Court. The rest they say is
history.
FACTS IN THE GORMAN CASE
On 28th January 2004,
the five appellants in the
Supreme Court, and one other,
were arraigned before the
Greater Accra Regional Tribunal
on narcotics related charges, to
wit, sections 1 (1) (2) and 56
(c) of the Narcotics Drugs
(Control, Enforcement and
Sanctions Law) 1990 PNDCL 236.
They were all granted bail by
the trial Regional Tribunal. The
Attorney-General, the respondent
therein, appealed to the Court
of Appeal, against the grant of
bail to the accused persons. The
Court of Appeal, on 3rd
March 2004 upheld the appeal and
rescinded the bail granted by
the trial Tribunal.
The Court of Appeal in its
judgment held that in granting
bail, the trial tribunal should
have considered adequately the
fact that the offences levelled
against the accused were
“serious and grave”.
All the accused persons, except
the second, brought appeals
against the decision of the
Court of Appeal to the Supreme
Court.
It must therefore be noted and
observed that the Gorman v
Republic case, as held by
Benin JSC was an appeal case and
not one which invoked the
original jurisdiction of this
court in its interpretative or
enforcement jurisdiction as
provided in article 2 (1) and
130 (1) of the Constitution
1992. The decision of the court
in the case should therefore be
understood in that context.
It is however conceded that, the
court in it’s decision in the
Gorman case appeared to have
considered the case as if the
original jurisdiction of the
court had been invoked.
That is improper, and any such
pronouncements should be
considered as an obiter dicta.
This is because, the court was
not called upon to grant those
reliefs, as if it was deciding a
case invoking it’s original
jurisdiction.
Even though, the Supreme Court,
in the Gorman case, speaking
through my very respected
brother ModiboOcranJSC of
blessed memory made some notable
pronouncements, I will confine
myself to the following which
the court itself stated as
summary of their holdings in the
case on pages 808-809 of the
report as follows:-
(1)
“The constitutional presumption
of innocence embedded in article
19 (2) (c) of the 1992
Constitution does not import an
automatic right to bail.
(2)
The constitutional duty of the
court under article 14 (4) of
the Constitution, to grant bail
to the accused if he or she is
not tried within a reasonable
time, is applicable irrespective
of the nature of the accusation
or the severity of the
punishment upon conviction.
(3)
In the cases falling outside the
direct duty to grant bail under
14 (4), there is a
constitutional presumption of
grant of bail drawn from the
spirit of the language of
articles 14 (1) and (3), and 19
(2) (c), in further protection
of persons charged with offences
which do not mandate the grant
of bail.
(4)
The said constitutional
presumption of grant of bail is
rebuttable; and it is in fact
rebutted by a statutory
provision that expressly
disallows bail, such as the
circumstances outlined in s 96
(7) of the Criminal Procedure
Code, 1960 (Act 30).
(5)
Outside the strictures of s 96
(7) of the Code and article 14
(4) of the Constitution, the
presumption of the grant of bail
is still extant, and is
exercised under judicial
discretion which is itself
fettered by other provisions of
section 96.
(6)
There is no prima facie
inconsistency between the
relevant provisions of the Code
and the 1992 Constitution.
(7)
Considerations of the nature of
an accusation and the severity
of punishment upon conviction,
as part of the decision not to
grant bail under s. 96 (5) &
(6), are constitutional; and
that the gravity of an offence
may be viewed as an aid in
understanding and categorizing
the nature of an accusation.
(8)
The Court of Appeal, in arriving
at its judgment of 3 March 2004
to rescind bail in this matter,
at variance with the judgment in
the Benneh case to grant bail,
did not violate the
constitutional provision on
stare decisis; and
(9)
The Supreme Court is not bound
by the specific result of the
Benneh case since the factual
contexts are distinguishable.”
There appear to be quite some
level of inconsistencies in the
summaries of the holdings of the
Supreme Court as was stated by
the Court itself supra.
There is certainty about the
effect of the provisions of
article 11 (1) of the
Constitution 1992 which puts the
Constitution 1992 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 30 is.
In that respect, the summary in
No. 4 supra, to the effect that
a constitutional provision on
the grant of bail is rebuttable
and infact has been rebutted by
a statutory provision in section
96 (7) of Act 30 is not only
inconsistent with the provisions
of article 11 (1) (a) of the
Constitution 1992, but also
violently violates the tenets of
the supremacy of the
Constitution 1992.
Whilst conceding that the grant
of bail is guided by judicial
discretion, the provisions of
the Constitution on the
protection and enjoyment of
personal liberties is such that
no statutory provision can oust
those principles of
constitutional provision the way
the reasoning was stated in the
Gorman case.
For example, if bail is
understood in the context of the
duty of common law courts to
release accused persons facing
trial on bail by ensuring that
they appear to stand trial at a
later date, then any law to the
contrary, which forbids the
courts from exercising this
discretion which has received
constitutional blessing is
nothing more than inconsistency
of a statutory provision with
that of a constitutional
provision. In that respect, the
statutory provision must give
way and be struck down.
In that, respect therefore, it
is an absurdity and gross
inconsistency to state in No. 6
supra that there is no prima
facie inconsistency between the
relevant constitutional
provision and Section 96 (7) of
Act 30 as amended.
In my humble opinion, the Gorman
case is clearly distinguishable
from the circumstances of the
instant case.
My brother Benin JSC has clearly
demonstrated it to be so, and I
have also explained the
differences in some few words
supra.
Without claiming to be departing
from the Gorman case, any
inconsistency inherent in that
decision with clear
constitutional provisions as has
been amply demonstrated herein,
must be taken into contention in
the final outcome of this case.
The decision by the Supreme
Court in the Gorman case, cannot
be said to be an authoritative
decision on the applicability of
article 19 (2) (c) of the
Constitution 1992. This is
because, that was not the
primary focus of the appeal.
Rather, the said constitutional
provision had been used by the
appellant’s counsel therein to
strengthen his arguments in the
Supreme Court for grant of bail
to the appellants.
CONCLUSION
I deem it appropriate to
conclude this concurring opinion
with the following concluding
remarks by Prof. Mensa-Bonsu,
(in her article already referred
to supra), where she stated
thus:-
“It must be restated that
although bail is more of a right
than a specific right of an
accused, it is derivable from
other well recognized rights to
liberty and the right to a fair
trial. Police officers and
Judges must, therefore, approach
the issue from the standpoint of
being disposed to granting bail
unless persuaded otherwise,
rather than the converse.
Executive interference must be
resisted whilst
constitutional protections must
be liberally construed in order
to make them work for the
citizens. The history and
spirit of the power to grant
bail requires no less of any
Judge who is mindful of the
hopes and aspirations that are
reposed in that high office by
the generality of the citizens.”
It can therefore be safely
concluded that accused persons
who are arraigned before the law
courts are entitled to rights
which include rights to admit
them to bail pending trial.
These rights are to be construed
in the light of the
constitutional and statutory
interventions made in a very
liberal and expansive regime to
give meaning to the
constitutional guarantees of
fair trial.
Any such law as prevails in
section 96 (7) of Act 30 as
amended, is not only
inconsistent with the
Constitution 1992 especially
article 19 (2) (c), but also
offends and violates the letter
and spirit of the Constitution
1992.
The existence of this section 96
(7) of (Act 30) as amended in
our statute books has been a
blemish since the coming into
force of the Constitution 1992.
In associating myself with the
decision of Benin JSC, I urge
that practice direction be given
by this court, pursuant to our
decision in this case which
should serve as a guide to all
courts on how their discretion
in the exercise of the right to
grant or refuse bail
applications must be conducted.
Directions also need to be given
to ensure that the effect of
this decision does not result
into the opening of the flood
gates for all remand prisoners.
Fact of the matter is that,
there is no automatic right to
the enjoyment of bail by an
accused before the courts. Every
case must be dealt with on a
case by case basis. As already
stated by me, the primary duty
of a court is to ensure that an
accused when granted bail will
appear and stand for his trial.
Bail should not be used as a
punishment to deny the grant of
bail. Whenever there are grounds
which indicate that an accused
may not appear to stand trial
due to his antecedents or facts
of the case, the Court should
decline bail to such an accused
person.
Since my decision is that, there
is now no law prohibiting courts
from the grant of bail, in the
non-bailable offences, reference
should be made to sections 96
(4) (5) and (6) of Act 30 and
present day realities, (such as
the dangers associated with
terrorism, narcotics and it’s
related crimes) whenever bail
applications are considered by
the courts having jurisdiction
in those offences. Since all
these issues have been
adequately addressed by my
brother Benin JSC, and I concur
with his opinion, there is
nothing more useful to add.
To the extent of the
inconsistency, between Article
19 (2) (c) of the Constitution,
and section 96 (7) of Act 30 as
amended I endorse the decision
of my respected brother Benin
JSC that the said section 96 (7)
of Act 30 be struck down.
I therefore rest my concurring
opinion with the following
quotation:-
Michael G. Trachtman, writing in
page 9 of his celebrated book,
“The Supremes’ Greatest Hits,
The 34 Supreme Court cases That
Most Directly Affect Your Life”
stated as follows:-
“Like the highest courts of
other democracies, the Supreme
Court has the authority to
decide, once and for all, what
important laws really mean when
applied to the real life
situations that arise after the
laws are enacted.”
In this regard, it is the duty
of this Supreme Court to decide
whether section 96 (7) of Act 30
as amended, when applied to the
real life situations of grant of
bail to persons accused of crime
are consistent with the basic
laws of the land. Not being so
consistent, the said section 96
(7) is accordingly struck down.
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANINYEBOAH
JUSTICE OF THE SUPREME COURT
AKAMBA, JSC
I have had the privilege of
reading both the well-reasoned
lead opinion of my able and
respected brother Benin JSC as
concurred in by Her Ladyship the
Hon. Chief Justice (Presiding)
and my brother Dotse, JSC as
well as the dissenting opinions
of my sister Adinyira (Mrs) and
brother Gbadegbe, JJSC. I would
have just been satisfied in
associating myself with the
opinions expressed by Benin JSC
but for my desire to contribute
to this epoch making
constitutional interpretation of
articles 14(1), 15 (2) and 19
(2) of the Constitution 1992, as
they affect S. 96 (7) of the
Criminal and other Offences
(Procedure) Act 1960 (Act 30)
which latter restrains the
Courts from granting bail to any
persons accused of crimes listed
thereunder including treason,
subversion, murder, robbery etc.
Much as I am in agreement with
their reasoning and conclusion I
wish to express myself on
certain aspects of the effect
that S. 96 (7) of Act 30 has on
the Constitutional provisions on
the liberty of the individual
and the extent, if any, that the
court in the Gorman case dealt
with this Constitutional
question. I begin on the premise
that the section 96 (7) as it
stands now runs contrary to the
express and guaranteed
constitutional right to liberty
of the individual which can only
be taken away by law as captured
in Article 14 (1) of the
Constitution 1992.
It is trite to observe that the
Constitution 1992 as the supreme
law of the land has guaranteed
the individual’s liberty as
captured under chapter five (5).
This right cannot be taken away
by an enactment except where the
Constitution specifically so
permits. It is instructive to
read article 14 (1) of the
Constitution 1992 to the effect
that:-
“14 (1) Every person shall be
entitled to his personal liberty
and no person shall be deprived
of his personal liberty except
in the following cases and in
accordance with procedure
permitted by law-
(a) in execution of a sentence
or order of a court in respect
of a criminal offence of which
he has been convicted; or
(b) in execution of an order of
a court punishing him for
contempt of court; or
(c) for the purpose of bringing
him before a court in execution
of an order of a court; or
(d) in the case of a person
suffering from an infectious or
contagious disease, a person of
unsound mind, a person addicted
to drugs or alcohol or a
vagrant, for the purpose of his
care or treatment or the
protection of the community; or
(e) for the purpose of the
education or welfare of a person
who has not attained the age of
eighteen years; or
(f) for the purpose of
preventing the unlawful entry of
that person into Ghana, or of
effecting the expulsion,
extradition or other lawful
removal of that person from
Ghana or for the purpose of
restricting that person while he
is being lawfully conveyed
through Ghana in the course of
his extradition or removal from
one country to another; or
(g) upon reasonable suspicion of
his having committed or being
about to commit a criminal
offence under the laws of Ghana.
(2) A person who is arrested,
restricted or detained shall be
informed immediately; in a
language that he understands, of
the reasons for his arrest,
restriction or detention and of
his right to a lawyer of his
choice.
(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 wither 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.
The courts are the guarantors of
the liberty of the individual as
provided under the constitution.
It is clear from article 14 (4)
supra, that the mandate to
determine whether or not to
grant bail to a person arrested,
restricted or detained is vested
in the courts and not in the
Executive or Legislative arms of
government. In simple logic,
what business does Parliament,
the law maker, have in
arrogating to itself, the right
to tell the courts, that
notwithstanding the clear
provisions of the Constitution
guaranteeing the liberty of the
individual, the courts should
refrain from granting bail in
those stated crimes? That is the
exact import of Section 96 (7)
of Act 30 should it continue to
operate on our statute books. As
I intimated supra whenever the
Constitution desires to empower
any body or authority to do an
act contrary to or in
furtherance of a stated right or
obligation it specifically
provides for same. For instance
article 159 of the Constitution
empowers the Chief Justice to
make regulations for the
efficient function of the
Judicial Service. It enacts:
“159 The Chief Justice may,
acting in accordance with the
advice of the Judicial Council
and with the approval of the
President, by constitutional
instrument, make regulations for
the efficient performance of the
functions of the Judicial
Service and the Judicial Council
under this Chapter.”
No such power has been extended
to the Legislature to make any
regulations in furtherance of
article 14 (4) of the
Constitution and thus enabling
the curtailment of the liberty
of the individual as section 96
(7) of Act 30 (1960) purportedly
does.
I have read the lead dissenting
opinion and I find it, with the
greatest respect, to be rather
academic and without answering
the core issue before us. It is
trite to state that Article 14
(1) (3) and (6) emphasize that a
person who is arrested,
restricted or detained must be
brought before a court within
forty-eight (48) hours and when
not tried within a reasonable
time for the court to determine
whether or not to release him on
bail. These provisions do not
curtail the grant of bail as
canvassed in the dissenting
opinion. On the contrary they
emphasize the fact that within
48 hours, a person arrested for
any offence must be put before
the Court for the Court to
determine whether or not to
continue with the detention or
grant him/her bail.
The Constitution grants the
discretion to the court to
determine the desirability of
bail and not for statute to deny
bail as of right as S. 96 (7)
proclaims. If this situation is
allowed to stand as advocated in
the dissenting opinion, it would
be a slap in the face of the
constitutional provisions in
article 14 (1) (3) and (4). As
regards article 21 (4) quoted in
the dissenting opinion, it is
instructive that the said
article 21 (4) (a) and (b) are
restrictions imposed by order of
a court pursuant to the exercise
of the Court’s discretion. This
is contrary to the wording of
S.96 (7) of Act 30 which
restrains the courts from
granting bail in respect of the
listed offences.
In any case one cannot use the
example of article 21 (4) (a)
and (b) of the Constitution
which is the Constitution itself
listing out some exceptions as a
justification in contra
distinction from the Legislature
seeking by S. 96 (7) of Act 30
to water down powers the
Constitution has given the
courts to exercise under their
wide discretion to safeguard the
liberty of the individual.
Lastly, I wish to comment on the
reference to article 14 (6) of
the Constitution as an apparent
endorsement of the view that a
person may be held contrary to
article 14 (3) of the
Constitution. The article under
reference speaks of lawful
custody which to me cannot mean
anything else than the period
permitted under the law for
detaining persons arrested for
infringing the law. The article
14 (3) of the Constitution
stipulates that a person
arrested, restricted or
detained, shall be brought
before a court within
forty-eight hours after the
arrest, restriction or
detention. Short of certain
practical obstacles the
provision is devoid of any
ambiguity. It is within the
mandate of the court to consider
bail if the person’s trial
cannot commence as provided in
article 14 (4) of the
Constitution.
COMMENT ON GORMAN CASE
It emerged in the course of
these discussions that whatever
pronouncement that was made in
the Gorman case regarding
article 19 (2) (c )vis a vis
section 96 (7) was made per
incuriam as the court was not
called upon to determine that
issue. While it is true to state
that the court in the Gorman
case, {i.e. Gorman and Others v
The Republic (2003-2004) SCGLR
784} was not called upon to
determine article 19 (2) (c ) of
the Constitution, it cannot be
right to refer to whatever
consideration and pronouncement
that was rendered of those
provisions as having been made
per incuriam. With the greatest
respect, 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 Appeal’s refusal to
grant them same. In considering
the issue of bail the court did
make some pronouncements
pertaining to Article 19 (2) (c
) of the Constitution and
section 96 (7) of Act 30. These
pronouncements as far as they
go, can only be described as
obiter in the light of the
obvious fact that the
application before the court was
not one for an interpretation of
the Constitution but an
application for the exercise of
the court’s power to grant bail
simpliciter, a power conferred
under Article 14 (4) of the
Constitution. These obiter
pronouncements cannot be a
reason for ousting our
jurisdiction in the present
action. A judgment per incuriam
is one which has been rendered
inadvertently as for example
where the judge has forgotten to
take account of a previous
decision to which the doctrine
of stare decisis applies or a
judgment rendered in ignorance
of legislation. On the other
hand an ‘obiter dictum’ is a
remark made or opinion expressed
by a judge, in his decision upon
a cause, ‘by the way’- that is
incidentally or collaterally and
not directly upon the question
before the court, or it is any
statement of law enunciated by
the judge or court merely by way
of illustration, argument,
analogy or suggestion. (See
Black’s Law Dictionary, Eight
Edition, by Bryan A Garner). The
court in Gorman’s case was
called upon to consider whether
or not to grant the applicants’
bail having been denied same by
the Court of Appeal. The court’s
pronouncements on article 19 (2)
of the constitution was obiter
in the circumstance.
CONCLUSION
In the result, aside from the
above observations, I agree with
the views advanced by my
brothers Benin and DotseJJSC and
my sister the Hon. Chief Justice
Wood that section 96 (7) of Act
30 cannot and should not stand
as it is contrary to the letter
and spirit of articles 14 (1)
(2) (3) (4) and 15 of the
Constitution and to that extent
is hereby struck down. This is
an appropriate case to order
that the present outcome should
have prospective effect and I
hereby so order.
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME COURT
DISSENTING OPINIONS
ADINYIRA (MRS.) JSC:
The Plaintiff issued a writ
seeking:
1.
A declaration that
section 96(7) of the Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30) contravenes
Articles 15(2) and 19(2) (c) of
the 1992 Constitution and is
therefore null, void and of no
effect.
2.
Such further or other
orders as the Honourable Supreme
Court will deem fit to make.
3.
Cost for court expenses
and counsel fees.
Comment on Plaintiff’s statement
of Case
Before I go on I am drawn to
respond to a matter relating to
the Plaintiff’s statement of
case at least for the benefit of
the profession. Though the
Plaintiff’s writ was dressed as
a writ to invoke our original
jurisdiction for interpretation
and enforcement, yet he spent a
substantial portion of his
submissions making it appear
that the same was an application
for a review of this Court’s
previous decision in
Gorman [and Others] v The
Republic [2003-2004] SCGLR [784]
which he believed was an
authoritative decision of this
Court on same provisions and
binding on us. If his position
were to be correct, the
Plaintiff would have non-suited
himself by his own submissions
as he would not have a cause of
action to relitigate the same
issue. Review application is
not the right forum. See
OkudzetoAblakwa (No3) &
another [2013-2014] 1 SCGLR 16.
It was therefore proper for us
to look at Gorman case to
determine whether the Supreme
Court considered the issue as
to whether there was any
inconsistencies between section
96(7) of Act 30 and article 19
(2) (c ). It
is the view of the Court that
whatever
pronouncement made in reference
to the said provisions by the
Court in Gorman case was made
per incuriam as the Court
was not called upon
to determine that issue. The
reasons for that conclusion are
sufficiently discussed in the
opinions of my brothers Benin
and DotseJJSC and I have nothing
useful to add.
Plaintiff’s Arguments
The Plaintiff submits that:
“… the effect of section 96(7)
of Act 30 whittles down the
constitutional provision on the
presumption of innocence when
viewed against the automatic
presumption of innocence until
proven guilty and in the absence
of express provision in the
constitution itself to the
effect that such a provision is
subject to any necessary
modification by any enactment, a
statute cannot have the force of
whittling down a constitutional
provision as a result of article
1 (2) of the Constitution 1992
stating the supremacy of the
Constitution.”
The Plaintiff submits further
that “the only grounds on which
an accused shall be refused bail
be the ones specified in section
96(5) and section 96(7)” sic!
Defendant’s Response
The Defendant relying on
articles 14 (1) (g) and 21 (4)
(a) and (b) argued that by the
combined effect of these
articles, the refusal to grant
bail under section 96(7) of Act
30 cannot be said to be
unconstitutional.
Agreed Issue
The agreed issue set down for
our determination was:
“Whether
section 96(7) of the Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30) contravenes
Articles 14 (1), 15(2) and 19(2)
(c) of the 1992 Constitution and
is therefore null, void and of
no effect.
The issue in respect of whether
section 96(7) of Act 30 is
inconsistent with article 15(2)
has effectively been dealt with
by my esteemed brother Benin JSC
whose judgment I had the benefit
to read beforehand. I agree with
his reasoning and conclusion in
dismissing the claim on that and
I have nothing useful to add
except that: “Ours is to
interpret the Constitution in
the context of disputes, broadly
interpreted” per AdadeJSC in
Bilson v. The Attorney- General
[1993-94] SCGLR 104 at
108.[e.s.]
What remains is the central
issue whether section 96(7) of
Act 30 contravenes articles 14
(1) and 19(2) (c) of the 1992
Constitution and is therefore
null, void and of no effect; on
which I wish to express my
individual opinion which is in
dissent to the reasoning by my
brethren that section 96(7) of
Act places a fetter on the
discretion of the Court to grant
bail in non-bailable offences
and therefore is in conflict
with Article 19(2) (c). In doing
so I think it would be pertinent
to examine the said section
within the context of the entire
article 14 with other relevant
constitutional provisions such
as article 12 (2) that limits
the fundamental human rights to
“respect for the rights and
freedoms of others”; and article
21 (4) (b) which expressly
states that:
(4) Nothing in or done under the
authority of, a law shall be
held to be inconsistent with, or
in contravention of, this
article to the extent that the
law in question makes provision
(b) …[or] for the purposes
of ensuring that he appears
before a court at a later date
for trial for a criminal offence
or for proceedings relating to
his extradition or lawful
removal from Ghana. [e.s.]
Section 96(7) of Act 30 is one
such ’provision’‘
It is incorrect to suggest that:
“section 96(7) as amended has
been a blot on our statute book
since the coming into force of
our 1992 Constitution” as it was
contained in the 1969
Constitution and 1979
Constitution respectively and
these earlier constitutions had
analogous provisions as article
14 of our present 1992
Constitution.
Section 96(7) of Act 30 in its
current form was enacted in 1975
by the Criminal Procedure Code
(Amendment Decree); with the
offences of narcotics and
terrorism added in 2002 and 2008
respectively and were all
consolidated and revised. The
judicial thinking that section
96(7) of Act 30 placed a fetter
on the discretion of the courts
in granting bail in murder,
treason etc came about by the
courts routinely following the
narrow and strict interpretation
placed on the wording of a
previous provision in section 96
(1) of Act 30 which came into
effect on 1 February 1961; that
excluded capital offences from
the provisions of section 96 on
the grant of bail. That section
said:
“When any person, other than a
person accused of an offence
punishable with death
appears or is brought before any
court…he may in the discretion
of the court be released upon
his entering… a bond.”
With the coming into effect of
the 1992 Constitution with
article 14 (4),similar in
wording as in similar provisions
of the previous Constitutions of
1969 and 1979 respectively, some
courts refused bail as they
still held on to the view that
that section 96(7) totally
ousted their power to grant bail
in those offences in spite of
the clear language of article 14
(4).Justice S.A. Brobbey
commented on this thorny issue
in his book, Practice &
Procedure in the Trial Courts &
Tribunals [Second Edition]. He
writes at page 542:
“The thorny question posed by
Act 30, s 96 (7)as amended… and
the 1992 Constitution, Article
14(3) and (4) is whether or not
a person charged with any of the
offences specified in subsection
7, especially murder may be
granted bail. There are two
conflicting views on this. One
is that subsection 7 is so
categorical that it ousts the
jurisdiction of the courts to
grant bail to anyone charged
with any of those offences. See
Donkor v the Republic [1977]2GLR
383 and Boateng v the Republic
[1976]2 GLR 444.
The other view is that where a
person charged with any offence
is not tried “within a
reasonable time” he
should be granted bail in terms
of the constitutional provisions
of article 14(3) and (4). Since
the Constitution is the
fundamental law of the land, to
the extent that article 14(3)
and (4) mandate bail for “all”
offences while Act 30, s 96(7)
excepts the grant of bail in
murder cases, etc the latter is
deemed to have been repealed by
the former by reason of the
inconsistency. This was the view
taken in Dogbey v. The Republic
(1976) 2 GLR 82 and Brefor v The
Republic (1980) GLR 679. There
is no doubt that the latter view
backed by the two cases is more
accurate.”
I have examined in detail
Dogbeyand Brefor cases and I do
not find any words or expression
by Taylor J (as he then was), to
the effect that Article 15 (3)
(b) and (4) of the Constitution
1969 and article 21 (3) (b) and
(4) (a) repealed section 96 (7)
of Act 30 by reason of
inconsistency as the learned
Justice Brobbey suggests.
Justice Taylor rather held a
strong contrary view and
inBrefor, after a long discourse
on the rules of interpretation,
he held at page 703:
“…the most casual consideration
of the problem will reveal
that it is impossible by any
process of interpretation to
contend that the constitutional
provisions repeal the said
section 96 (7) of Act 30.The
two ought to be read together
and the principles of statutory
interpretation I have canvassed
in this ruling demonstrate that
the law immediately coming
before the Constitution, 1979
and after it, is that a court is
to refuse bail in murder cases,
etc, except in the cases of
unreasonable delay in trials as
it is provided in article 21(4)
(a) of the constitution, 1979.”
But even then Justice Taylor
denied bail in the two cases as
he did not consider the three
years delay in holding a trial
unreasonable. Whereas Andoh J.
in Owusu v. The Republic [1980]
GLR 460 granted bail as he
considered three years was undue
delay, and he commented on the
wrong interpretation placed on
section 96(7) of Act 30.
In contrast, courts in other
jurisdiction appear to deal
differently with non bail
offences. I will rely on the
same cases cited by my eminent
brother Benin JSC, namely,
Wright v. Henkell 190 U.S. 40
(1903)decided on 1 June 1903;
United States v. Kin-Hong, 83 F.
3d, 523 (1st Cir
1996); Martin v. Warden, 993 F.
2d. 824 (11th Cir
1993); A and others v. Secretary
of State for the Home Department
(2004) UKHL 56; and MB, Re
(2006) EWHC 1000 (Admin). These
cases illustrate how courts in
other jurisdictions with similar
‘no bail’ provisions did not
consider themselves ‘fettered’
or totally banned from
considering bail in their bid to
adhere to their duty to uphold
personal liberty as enshrined in
their constitutions. Some of
the cases cited related to
extradition, and acts of
terrorism in which executive
orders or executive instruments
for the detention of suspects
were made denying the courts the
power to investigate the reasons
for the detention. Even in the
face of these restrictions; the
courts asserted their power to
consider bail even though they
did not eventually grant the
request. In their desire to
protect the personal liberties
of accused persons, the judges
were also aware that the
interest of society should also
be considered in matters of bail
in criminal offences and
therefore exercised
self-restraint.
The Plaintiff’s submissions are
extreme over simplification of
constitutional doctrines raised
in this case; and also reflects
what I consider a narrow and
strict interpretation of the
section 96 (7) of Act 30.The
problem is not with the
subsection but the
jurisdictional orientation of
some of the courts in dealing
with issues of bail in cases
they do not even have
jurisdiction to hear, the most
obvious example being murder;
and even then most of the
offences listed in the said
section are first degree
felonies, which should be tried
on indictment and not summarily
by lower courts His submissions
brings to light the need for a
thorough revision of criminal
procedure and administration of
criminal justice in Ghana to
reflect constitutional and
international human rights
instruments and conventions on
the primary issues before us:
the liberty and freedom of
movement of persons who violate
the criminal law.
A determination of the set down
issue therefore calls for a
thorough but short discussion on
the real import and place
application of this age old and
universally declared human right
of the presumption of innocence
of an accused person as
enshrined in
article (19(2) (c) of our
Constitution, in relation to the
question of bail; and a true and
purposive interpretation of
section96 (7) of Act 30vis a vis
articles 14, 12, (2)1 (4) (b)
respectively.
Article 19(2) (c) - Presumption
of Innocence
The presumption of innocence
sometimes referred to by the
Latin expression
Eiincumbitprobatio qui dicit,
non qui negat (the burden of
proof is on the one who
declares, not on the one who
denies), is the principle that
one is considered innocent
unless proven guilty. It is thus
a due process requirement that
the prosecution proves the
charge against the accused
beyond reasonable doubt. The
doctrine is therefore more
appropriately relevant in
determining the evidential
burden on accused persons in
criminal trial. Article 19 (2)
(c) which provides that a person
charged with a criminal offence
shall be presumed to be innocent
until he is proved or has
pleaded guilty is one of the
protection accorded to an
accused person’s right to fair
trial as enshrined in article19
(1) which provides that: “A
person charged with a criminal
offence shall be given a fair
hearing within a reasonable time
by court.” Article 14(4) makes
it mandatory that when an
accused person is not put to
trial within a reasonable time
that person shall be granted
bail by a court.
An accused person’s right to be
presumed to be innocent until
proved guilty at his trial is
strengthened by his right to be
considered for bail prior to
trial; this serves to prevent
the infliction of punishment
prior to conviction; as the
purpose for granting bail is to
ensure the accused person turns
up for his trial and not based
on his guilt or innocence.
For lack of any better precedent
in our jurisprudence on the
subject, I refer to the dictum
of Coleridge J in R v Scaife
(1841)5 JP 406; which can still
be classified as locus
classicus. He said at page 406:
I conceive that the principle,
on which parties are committed
to prison by magistrates
previous to trial, is for the
purpose of ensuring the
certainty of their appearing for
trial. It seems to me that the
same principle is to be acted on
in an application for bailing a
person ‘is not a question of the
guilt or innocence of a person.
Bail is a question of the
consideration of a very
important element whether the
party if admitted to bail would
appear to take his trial. Thus
the requirements as to bail are
merely to secure the attendance
of the prisoner at the trial”
Though this presumption of
innocence does not raise a right
to automatic bail, it raises
a right not to be denied
reasonable bail without just
cause, as in contrast with
breach of article 19 (1) where
the grant of bail is automatic
irrespective of the nature of
the offence. For instance where
a person is charged with an
offence for which a punishment
by imprisonment could not
lawfully be passed, it will be
without just cause to deny
reasonable bail in such
circumstances. That is one of
the underlying reasons that a
distinction is made between
bailable offences which cover
minor offences and non bailable
offences, which cover violent
and serious offences against the
person, the state and
international relations.
It is worth stressing again that
since the purpose of granting
bail is to secure the presence
of a person to attend his trial,
and not based on his guilt or
innocence, then where it can be
demonstrated that the person is
a flight risk or a danger to the
community , or for his own
protection (from vigilantes and
mob attack), or may interfere
with evidence or witnesses and
bail is refused; it would be
erroneous to say that the
person’s rights under article
19(2) (b) i.e. presumption of
innocence has been infringed. I
will return to Article 19(2) (c)
later.
Section 96(7) of Act 30
Section 96(7) provides that: “A
court shall refuse to grant bail
in a case of treason,
subversion, murder, robbery,
hijacking, piracy, rape and
defilement or escape from lawful
custody, or… where a person is
being held for extradition to a
foreign country”.
The Plaintiff’s argues that the
wording of section 96(7) of Act
30 that the Court shall not
grant bail in the cases listed
leaves no room for the courts to
exercise their discretion to
consider bail in those cases
and that it whittles down the
presumption of innocence. I find
this notion erroneous as
the Plaintiff has taken and read
section 96(7) of Act 30
literally, narrowly and out of
context. The text alone
cannot offer acceptable meaning
without the context in which it
is made. This narrow approach
is against the rules of
construction or interpretation
of a statute. It is axiomatic
that the purposive approach is
the best approach as
consideration is given to the
subject matter, the scope, the
purpose and to some extent, the
background.
Guided by the purposive
approach, I will make a
contextual analysis of section
96(7) of Act 30 within the
entire section 96 and in
relation to
article 19(2) (c)to dispel this
thinking that the subsection
puts a fetter on judicial
discretion and offends the
principle of presumption of
innocence.
Courts are accorded in section
96 (1) the general right to
grant bail which by necessary
implication grants the right to
refuse bail as well.
Section 96(5) states a duty to
refuse bail in certain
situations including the
likelihood that the defendant
may not appear to stand trial.
It states the conditions on
which bail shall be refused: “A
Court shall refuse to grant bail
if it is satisfied that the
defendant may not appear to
stand trial, or may interfere
with a witness or the evidence
or in any way hamper police
investigation, or may commit a
further offence when on bail, or
is charged with an offence
punishable by imprisonment
exceeding six months which is
alleged to have been committed
while the defendant was on
bail”.
In my view the first condition
is the most decisive as a person
in custody is entitled to be
considered for bail, and if
there are reasons to satisfy the
court that the defendant is a
flight risk then it is a just
cause to refuse bail.
Section 96(6) states the factors
the court has to take into
consideration in deciding
whether a person in custody may
not appear to stand trial if
released on bail.
Factors to be taken into account
in considering the likelihood of
the accused not turning up for
trial is not only in respect of
the nature of the offence or the
punishment, but, most
importantly, whether the
evidence in support of the
accusation is strong.
The offences listed in section
96(7) are of a type
where the risk of flight by the
accused is high due to the
severity of the offence and
attendant punishments of
capital punishment, life
imprisonment
or a long sentence are given
respectively upon conviction.
The well known test of whether
a person ought to be granted
bail is whether it is probable
that person will appear to take
his trial. Obviously if this
test is applied successfully in
a case where a person is charged
with any of the offences listed
in the ensuing subsection (7)
which by their nature are very
serious offences and carry heavy
sentences, and there is strong
evidence in support of the
charge, then there is a just
cause to deny bail as from all
indications it is likely that
the accused may not turn up for
trial. In that respect bail
shall not be granted in line
with subsection (5). That is the
intent of subsection 96(7) to
list such offences which in the
administration of criminal
justice are termed non-bailable
offences, and acceptable by
international norm and are
applied reasonably and not
arbitrarily.
Having placed section 96(7) in
its right context, I deem it
proper to consider this
subsection in detail. Section
96(7) states:
7. A court shall refuse to
grant bail-
a)
in a case of
treason, subversion, murder,
robbery, hijacking, piracy, rape
and defilement or escape from
lawful custody , or
b)
where a person is being held for
extradition to a foreign country
The exclusive focus put on the
mandatory meaning of the word
‘shall’ in section 96(7) of Act
30is mechanistic and fails to
take account of the context
in which it is used. I do not
think the words “shall refuse to
grant bail” means that the court
is prohibited from hearing an
application for bail in those
kinds of offences. No proper
interpretation could be made
without reference to the
context. It should be noted that
the section 96(7) of Act 30
which follows subsections (5)
and (6) does not say the court
shall refuse bail where a person
is charged with any of
the specified offences. It
rather says a court shall refuse
to grant bail in a case of
treason, subversion, murder etc.
The use of the phrase ‘in a
case of’ in the context of the
preceding subsections (5) and
(6) means if on the evidence, a
case of murder…etc could be said
to have been committed then the
court shall refuse bail.
See also Owusu and Another v The
Republic [1980] GLR 460 at 462,
though a High Court decision is
sound and reflects my thinking
where Andoh J correctly
constructed section 96(7) of Act
30 by holding:
“At first glance of the above
provision [Section 96(7) (a) of
Act 30] one may be tempted to
say that the court is ousted of
jurisdiction in granting bail in
the offences listed above but
then it is significant to note
that the section does not say
that the court should refuse
bail when a person is charged
with any of the offences. It
rather says that the court shall
refuse bail in cases of treason,
etc. The mentioning of a “case”
means or implies that it was
only when on the summary of
evidence a case of murder,
treason,…etc could be said to
have been committed, that the
court is mandatorily stopped
from granting bail. I think
it was not without reasoning
that section 96(7) of Act 30 as
amended mentions a ‘case’
instead of a ‘charge’.”
In the Owusu case, the two
accused were charged with
abetment of murder, Andoh J in
considering the evidence found
the evidence of abetment against
the first accused slim, and that
against the second accused
baseless. However since he found
evidence of delay of 3 years in
their trial, he decided to grant
them bail under article 21 (4)
of the 1979 Constitution.
Certainly, determining whether
for example a case of murder has
been established by the
prosecution requires a judicial
enquiry into the nature of the
evidence and not by merely
looking at the charge sheet.
This determination by the court
is a mandatory judicial process
required under section 96(6) and
it implies a hearing with
the accused present, and
accorded due process. This is
the procedure envisaged under
article 14(1) when a person is
arrested and detained under 14
(1) (g). In some jurisdiction
like US, UK, and India, this
process is usually called a pre
trial session for bail in
non-bailable offences; and
presided over by a superior
court judge that has
jurisdiction to hear such cases.
If
section 96(7) of Act 30 is
placed in its proper context
it means that only
persons who fit in these
categories of offences are
subject to detention without
bail after the judicial process
elaborated in section 96(5) and
(6) has been followed. I
therefore hold that section
96(7) of Act 30 does not
eliminate the judicial process
in matters of personal liberty
and it is also erroneous to say
access to the courts for bail in
those cases is also ousted. That
is not the intent of the section
and this is not how other
jurisdictions with similar
provisions have understood it.
Why section 96(7) of Act 30?
The view has been expressed
that: what is the relevance of
section 96 (7) of Act 30 in view
of the elaborate steps set down
in subsections (1) to (6) to
guide the courts in considering
bail in all criminal. I submit
with all due respect that this
view diminishes the debate as
subsection (7) is the
non-bailable clause in our
Criminal Procedure Code as
pertains in other jurisdictions.
The public will want to know
what offences are non-bailable.
The above view cannot form the
basis to declare the said
section unconstitutional. The
criticism rather calls for a
criminal law revision and not to
strike down a rather useful bit
of legislation which is
legitimate and constitutional by
the clear wording of section 21(4)
( (b). I consider
section 96 (7) of Act 30
a law reasonably required for
the stability of communities,
and countries.
Respect for human rights is an
attribute or an element of good
governance, and all efforts must
be made to ensure its
observance. However its
enforcement is balanced against
the legitimate interests of
others as well as public
interest as stated under article
12 (2). Consequently the
Constitution, for example,
expressly and by implication
provides by articles 14 (1) and
21 (4) (a) and (b) places a
limitation on freedom of liberty
and movement where a person
commits a criminal offence.
Accordingly, any limitation that
criminal legislation may have on
fundamental rights and freedoms
is legitimate if it is
reasonable and in the public
interest. See United States v.
Salerno, 481 U.S. 739 (1987) and
contrast with Benneh Case
[1998-99] SCGLR 559 at 568;where
the Supreme Court affirmed the
Court of Appeals decision to
grant bail in a narcotic case as
there was no law at that time
prohibiting the grant of bail.
The types of offences determined
as non-bailable in criminal
jurisprudence are types of
violent crimes the courts are
aware that public interest, as
well as international and
diplomatic considerations weighs
against the grant of bail. The
justification for restricting
the grant of bail in such cases
is considered as a law
reasonably required for the
stability of communities, and
countries.
The attainment and enjoyment of
fundamental human rights have
become prime instruments in
international relations.
Therefore the restrictions of
some of these fundamental human
rights by domestic statutes have
been considered necessary to
combat certain crimes which have
the tendencies to destabilize
peace and stability of not only
the local community but the
international community as
well. Such restrictive laws are
usually made as a matter of
state policy, in response to
treaty obligations and
international law and
conventions; for example the
Vienna Convention against
Illicit Traffic in Narcotic
Drugs and Psychotropic
Substances of 19 December 1988.
In 2012 Ghana acceded to the
Palermo Convention on
Trans-national Organizes Crime.
This led to the amendment of
section 96 (7)) of Act 30 in
2002 and of the Anti-Terrorism
Act, 2008, Act 762.
It will be useful here to make
some comparism with other
jurisdiction. Other countries
like US, UK, India, have
legislations that prohibit bail
for capital offences, crimes of
violence, drug offences, sexual
offences and other specific
offences. The criteria specified
in Section 96 (5) (6)) and (7)
of Act 30 are similar to what
pertains in the penal laws of
other countries.
For example, under US Federal
laws 18 U.S.C. § 3142(f)
provides that only persons who
fit into certain categories are
subject to detention without
bail: persons charged with a
crime of violence, an offense
for which the maximum sentence
is life imprisonment or death,
certain drug offenses for which
the maximum sentence is greater
than 10 years, repeat felony
offenders, or if the defendant
poses a serious risk of flight,
obstruction of justice, or
witness tampering. There is a
special hearing held to
determine whether the defendant
fits within any of these
categories; anyone not within
them must be admitted to bail.
The US Supreme Court upheld this
provision as being
constitutional, in United States
v. Salerno, 481 U.S. 739 (1987),
holding that the only limitation
imposed by the Constitution is
that “the Government’s proposed
conditions of release or
detention be not excessive in
light of the perceived evil”.
Some states, for example
Arizona, also follow the federal
law to permit pre-trial
detention of persons charged
with serious violent offenses,
if it can be demonstrated that
the defendant may flee, or pose
a danger to the community. UK,
Czech Republic and India also
have such restrictive laws. The
Czech Republic has as many as 31
offences in which bail is
excluded; except that in these
jurisdictions it is a superior
court that considers bail
applications in such matters.
Even Canada
where its Constitution
guarantees the right not
to be denied reasonable bail
without just cause, has special
provisions relating to certain
offences found in section 469 of
the Criminal Code of
Canada (murder, treason, etc.)
that provide for bail hearing
before a superior court judge,
and the accused bears the burden
of proof. A review is heard by
the Court of Appeal.
In my view, if section 96(7) of
Act 30 on which the matter
herein turns were expressed as
in the US Federal Law supra the
Plaintiff could reach a
different interpretation of it
than what he is now putting on
it.
From the foregoing, I hold as
unsupportable the Plaintiff’s
submission that section
96(7)
of Act 30 takes away the court’s
discretion to consider bail in
those offences listed. The real
intent of the said section is to
provide that the Court shall
refuse bail where the evidence
before it shows the defendant
falls within that class of
cases. These cases are mostly
first degree offences which
ordinarily should be tried at
the High Court on indictmentf
Whether the offence is tried on
indictment or summarily, anyone
not falling within that class of
cases is entitled to bail.;9 the
evidence to support the charge
can be found not only in the
bill of indictment but also from
the depositions of prosecution
witnesses on the police docket
[See Section 268 of Act 30 which
appears under Part V of the Act
that deals with trial on
indictment and may well apply to
summary trials in order serve
the ends of justice.]
Apart from legal considerations,
there are also public policy
considerations in respect of
treaty obligations and
international conventions that
can support the law that persons
who fall within cases listed
under section 96(7) of Act 30
shall be refused bail. The
underlying principle is that due
to the seriousness of the
offences, and the severity of
the sentence, e.g. capital
punishment, the likelihood of
the accused person to flee is a
just cause to withhold bail in
the overall common pursuit to
combat crime.
In concluding on the issue
whether
section 96 (7) of Act 30 is
inconsistent with article (19(2)
(c), I hold further that, since
the principle on which accused
persons are committed to prison
pending trial, is for the
purpose of ensuring the
certainty of their appearing to
stand trial and not based on
their guilt or innocence, the
application of section 96 (7) is
not inconsistent with article
(19(2) (c) which does not raise
a right to automatic bail. The
Constitution by the wording of
article 21(4) (b) expressly
permits a person to be detained
for the purpose of ensuring that
he appears before a court at a
later date for trial of a
criminal offence or for
proceedings for extradition or
removal from Ghana.
Is section 96 (7) of Act 30 in
contravention of articles 14 (1)
(3) (4)
Article 14 (1) which protects
personal liberty sets out
expressly exceptions whereby a
person shall be deprived of his
personal liberty in accordance
with procedure prescribed by
law. These include holding a
person for extradition purposes
or upon reasonable suspicion of
his having committed or being
about to commit a criminal
offence under the laws of Ghana
as stated in14 (1) (f) and (g)
respectively. Obviously it is
impossible to mention all the
offences under the Criminal
Offences Act, 1960 (Act 29) and
other enactments in the said
article 14 (1) (g). Accordingly
all other offences in addition
to extradition are included in
the limitation of the enjoyment
of personal liberty under
article 14 (1).The offences
listed in section 96 (7) of Act
30 are recognized worldwide as
serious offences and generally
termed non-bailable offences.
The public is entitled to know
which offences are not-bailable.
The Criminal and Other Offences
(Procedure) Act, 1960, Act 30,
is the enactment envisaged by
article 14 (1) which contains
the prescribed procedure for the
arrest, restriction, detention,
trial and sentencing of persons
falling under 14 (1) (g)
The requirement under article 14
(3) to bring a person arrested,
restricted or detained under
article 14(1)(g) before a court
within 48 hours which is also
provided for in section 15 (1)
of Act 30, does not imply that
the person has an automatic
right to be granted bail. No
such words can be imported into
article 14 (3). In my view the
very purpose of article 14 (3)
is to prevent a person whose
liberty has been deprived under
14 (1) (g) to be held in custody
by the police beyond 48 hours
after his arrest. It is intended
to subject the police power of
detention not to go beyond 48
hours and to subject the power
of detention to judicial
control. It is to subject the
person to due process before the
court whose duty is to examine
whether the continued detention
of the person before his trial
is necessary. The Court has
discretion to grant bail by
following the procedure set out
in section 96 of Act 30.
Express Constitutional
Provisions Curtailing Grant of
Bail
Furthermore in considering other
relevant constitutional
provisions on the deprivation of
personal liberty and freedom of
movement, I find that the
combined effect of articles 14
(1) (3) (6) and 21(4)
contemplates the situation where
a person’s liberty and freedom
can be restricted in the public
interest by refusing bail for
the purpose of ensuring that he
appears to face trial. In that
respect, there is no
inconsistency of section 96(7)
of Act 30 with article 14(1) or
(3). In addition, Article 21
(4) states:
(4) Nothing in or done under the
authority of, a law shall be
held to be inconsistent with, or
in contravention of, this
article to the extent that the
law in question makes provision-
…
(b) for the imposition of
restrictions, by order of a
court, on the movement of
residence within Ghana of any
person either as a result of his
having been found guilty of a
criminal offence under the laws
of Ghana or for the
purposes of ensuring that he
appears before a court at a
later date for trial for a
criminal offence or for
proceedings relating to his
extradition or lawful removal
from Ghana. [e.s.]
In this respect
section 96 (7) of Act 30
which oust the right to bail in
the offences listed therein is
constitutional.
That being the case the
Constitution offer reparation
under Article 14 (6) that
provides that such period spent
in lawful custody is counted in
imposing sentence. The rational
being that the person was placed
on remand not because he is
guilty but just to ensure his
appearance for trial and it is
therefore just and equitable to
consider time spent on remand as
part of sentence imposed when
found guilty.
The Supreme Court has applied
article 14 (6) in reducing
sentences in cases like Bosso v
The Republic [2009] SCGLR 420;
Frimpong alias Iboman v The
Republic, [2012] 1 SCGLR 297;
Frimpong Badu v Republic
unreported, Supreme Court
Criminal Appeal No J3/11/2015,
11 November 2015. The appellate
and trial courts failed to
comply with this constitutional
provision which we considered
was a violation of the
constitutional rights of the
appellants.
Article 14 (6) states:
“Where a person is convicted and
sentenced to a term of
imprisonment for an offence, any
period he has spent in lawful
custody in respect of that
offence before the completion of
his trial shall be taken into
account in imposing the term of
imprisonment.”
From the foregoing I hold that
the wording of section 96(7) of
Act 30 when taken in the context
of the whole of section 96 of
Act 30 is not in conflict with
article 14 (3) which said
article does not lay down any
criteria for the grant of bail.
Consideration of bail at the
time of arrest may only be
implied from article 19(2) (c)
which is not the same as a right
to bail.
Article 14(4) - right to bail
when no trial within a
reasonable time
The right to protection of
personal liberty is derived from
article 14(1) whereas the right
to bail is derived from article
14 (4).It is only article 14(4)
that provides a right to bail in
breach of the right of an
accused to trial within a
reasonable time. Article 14(4)
provides: “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, either
unconditionally or upon
reasonable condition, including
in particular conditions
reasonably necessary to ensure
that he appears at a later for
trial or for proceedings
preliminary to trial.”
I do not share the view that
article 14(4) repeals section
96(7) of Act 30 as each deals
with a different scenario
exclusive of the other after the
arrest and detention of a
person. No question of delay
arises when bail is being
considered at the time an
accused person is brought to
court within forty-eight hours
of his arrest in compliance with
article 14(3). In that context
the court follows the procedure
under section 96 of Act 30 and
bail is withheld if a case of
any of those specified in 96 (7)
of Act 30 is made out against
the person. It is where there is
a question of delay in bringing
the person to trial in breach of
article 19 (1) that section
96(7) ceases to apply, as by the
language of article 14 (4) bail
is to be granted in all
offences. Notwithstanding
section 96(7) of Act 30 bail is
mandatory in all offences when
an accused person held in
custody is not brought to trial
within a reasonable time.
These two provisions co-exist in
issues relating to bail in the
one system of administration of
justice. Section 96(7) is
applied to hold a person to
ensure his trial and this is
permitted by article 21 (4). On
the other hand article 14 (4)
mandates the court to release an
accused whose trial has been
unreasonably delayed; and
‘trial’ under this article
includes preliminary trial in
committal proceedings. Therefore
where there is a delay in
completing investigations in
order to hold committal
proceedings the accused is
entitled to bail upon
application to a court of
competent jurisdiction on
grounds of delay. Wherein is the
conflict to be resolved in
favour of the Constitution, the
Supreme law of the land?
Following the above, I hold that
upon a proper and purposeful
construction, section 96(7) of
Act 30 and article 14(4) can
co-exist. They are not
inconsistent with each other.
They are laws in parimateriaas
Taylor J as he then was said
decades ago inBreforat page 703
that:“…the most casual
consideration of the problem
will reveal that it is
impossible by any process of
interpretation to contend that
the constitutional provisions
repeal the said section 96 (7)
of Act 30.’
I will now address some concerns
raised by the Plaintiff and some
of my eminent brothers, Dotse
and Benin JJSC on the issue
before us.
Benin JSC and concurred by
DotseJSC, exercised “the fear
that the existence of Article
14(4) whereby the court can
grant bail as a result of
unreasonable delay does not
remove the danger posed by
section 96(7) of Act 30
because judges and magistrates
“can rely on
section 96(7) of Act 30
to deny bail, and indeed the
practice still goes on.”
I empathize with this view; but
following what I said at the
beginning of this discourse, the
danger rather lies in the
jurisdictional difficulty some
courts finds themselves and this
cannot be a legitimate reason
for striking down section 96(7)
of Act 30.It is rather a call to
duty of judges to adopt a
generous and purposive
construction of article 14(4)
especially when considering bail
in cases of non-bailable
offences. There is no legal
basis for the courts to deny
bail under article 14(4) on the
strength of section 96 (7) as
the latter is inapplicable when
there is the issue of delay in
the trial of the accused. By the
clear wording of article 14 (4)
a court has no discretion but to
grant bail; this is the occasion
that the argument of the
supremacy of the Constitution is
pertinent.
The duty of the court to
protect, defend and enforce
fundamental human rights cannot
be compromised by the
perfunctory way bail
applications are treated. The
duty to enforce human rights is
to be performed judiciously,
“with lively concern for the
cost to the individual and
community.’’
The overall concerns raised by
the Plaintiff and expounded by
the majority view do not justify
the call for striking down
section 96(7) of Act 30 as
unconstitutional. The concerns
raised may be pertinent so far
as there seems to be no clear
rules or guidelines on when
investigation should close or
how long a person can be held on
remand without being charged or
committed to trial in cases of
trial by jury as pertains in
some jurisdictions. This calls
for urgent review of procedures
in preliminaries before trial by
the Law Reform Commission.
This may include the revision of
section 96 of Act 30 in clearer
terms on the grant of bail.
I am of the view 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. 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.
What is trial within a
reasonable time by a court?
Benin JSC had an issue with the
phrase ‘”tried within a
reasonable time by a court” in
article 14 (4) due to the
difficulty to determine that.
The Constitution does not define
what trial within a reasonable
time is. The thorny issue then
is how to determine trial within
a reasonable time having regard
to the past and current problems
affecting the administration of
criminal justice in the country.
The reality is that no person
would be arrested unless
somebody, the crime victim, the
police officer or the prosecutor
believes that the suspect was
guilty of a crime. Accordingly,
I am of the view that the time
for calculating the period of
unreasonable delay should
commence from the date of arrest
and not the date the accused was
charged or arraigned before
court. It is the day of the
arrest whether with or without a
warrant that the whole machinery
of the state is mounted against
such a person. It is therefore
sound, fair, just and precise
for the clock to start counting
for his trial or discharge,
immediately after his arrest.
After all the forty-eight hours
within which a person is to be
brought to court begins from the
moment of his arrest,
restriction or detention.
I base this opinion on a
decision of the Gambian Supreme
Court (High Court), Clarke &
Garrison v Attorney- General
[1960-93] GR 448; which gave a
generous and purposive
construction to section 20 (1)
of the Constitution of Gambia
the same more or less as article
14 (3) (b) and (4) of the Ghana
Constitution,1992. I find the
decision in the case persuasive.
This case was discussed by Dr.
S.Y. Bimpong-Buta in his book
The Role of the Supreme Court in
the Development of
Constitutional Law in Ghana, at
pages 371 to 376 from which I
quote extensively. In Clarke &
Garrison v Attorney- General
On the facts of the case, the
court held that the applicant’s
right to a fair hearing within a
reasonable time has been
infringed.
Ayoola CJ held:
“In my judgment, any reading of
section 20 (1) which will
confine the protection afforded
by that subsection only to
persons charged before a court
and from the date of his being
arraigned must be rejected. The
right to a speedy trial is a
right which accrues to an
accused person from the time the
decision to prosecute him has
been manifested by his
arrest…Delay to offer an accused
for trial within a reasonable
time is itself an infringement
of his right to have the case
against him heard within a
reasonable time. In my judgment
a generous and purposive
construction to support that
conclusion ought to be put on
section 20 (1).”
According to the learned author:
“The Supreme Court of the
Gambia, per Ayoola CJ applied
the decisions from four
jurisdictions: …the Supreme
Court of Kiribati in Republic v
Taabere[1985] LRC (Crim) 8
touching on section 10(1) of the
Constitution of Kiribati ;
…Privy Council in Bell v
Director of Public Prosecution
[1985] 2 All ER 585, in
relation to section 20 (1) of
the Jamaican (Constitution)Order
in Council, 1961 Sch 2; …Privy
Council in Mungroo v R [1991]
1WLR 1351 touching on section
10(1) of the Constitution of
Mauritius;…United States Supreme
Court in Barker v Wingo [1972]
406 US 514, US.”
Ayoola CJ in his judgment
identified some guidelines in
determining whether an accused
(such as the applicants) has
been deprived of his right to a
fair trial, namely:
... “the length of the delay,
reasons given by the
prosecution, for the delay, the
responsibility of the accused
for asserting his rights,
prejudice to the accused… in
considering whether reasonable
time has elapsed, regard must be
had to the past and current
problems affecting the
administration of justice in the
particular country; [and]… what
is reasonable time cannot be
prescribed but must be
determined from case to case
having regard to the
circumstances of each case.”
It is desirable that we apply
the same or similar criteria to
our Constitution, which protects
an accused from oppression by
delay for a fair trial within a
reasonable time. Any reason for
delay given by the prosecution
or on the part of all those
involved in the administration
of justice must not be used to
the prejudice of the accused
person. Where there was no
justification for the delay, the
absence of mala fides on the
part of the prosecution would
not make such delay reasonable.
In any case it is not necessary
for an accused person to prove
mala fides on the part of the
prosecution.
CONCLUSION
“Personal liberty, deprived when
bail is refused is too precious
a value of our constitutional
system recognized under article
[14 ] that the crucial power to
negate it is a great trust,
exercisable, not casually but
judicially, with very lively
concern for the cost of the
individual and
community.”PerBijoylashmi Das,
author of: Bail, A matter of
Right Not to be Denied on
Grounds of Nationality and cited
by my brother Benin JSC; which I
totally endorse as it supports
my stand on this issue.
While the argument that the
no-bail provision in section
96(7) of Act 30 places a fetter
on the discretion of the court
to grant bail cannot be
dismissed with a wave of the
hand, it is my view that
stronger and legal arguments
could be made to counter it.
Firstly, under the 1992
Constitution, the right to
personal liberty as a
fundamental human right and
freedom is derived from article
14 which at the same time
expressly provides limitation to
the enjoyment of the right not
to be deprived of one’s personal
freedom under 14 (1). These
include holding a person for
extradition purposes or for
purposes of arrest, restriction
and detention upon reasonable
suspicion of a person having
committed or being about to
commit a criminal offence under
the laws of Ghana as stated in
article 14 (1) (f) and (g)
respectively. Article 21 (4)
(b), expressly permits a court
to hold a person to ensure his
appearance to stand trial.
The crucial power to deprive a
person of his personal liberty
is a judicial act which decision
is taken after due process in
accordance with rules of
procedure set out in Section 96
of Act 30. Section 96(7) of Act
30 which restricts the grant of
bail in some specific offences
like murder, terrorism,
narcotics and rape is consistent
with article 14 and article 21
of the Constitution. The problem
is not the wording of theSection
96(7) of Act 30 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). This is not a sound
reason to strike down section
96(7).
Finally the calls for striking
down of section 96(7) of Act 30
were not made on any solid legal
arguments except the sweeping
invocation of the supremacy of
the Constitution and of
fundamental human rights as a
catch-all defence of the rights
of persons who have infracted
the criminal law and the rights
and liberties of others in the
community and society.
From the foregoing, I hold
section 96(7) of Act 30 does not
contravene article 14 (1), 15
(2) and 19(2) (c).
I so declare.
I however commend Mr. Martin
Kpebu for his spirited arguments
which has given this Court the
opportunity to consider the
provisions of the Constitution
on personal liberty and section
96 (7) of Act 30 which in my
opinion co-exist with article 14
(4) with each playing its role
in the administration of
criminal justice in the country.
His concerns and that of my
eminent brethren constitute
legitimate calls for a review of
the entire section 96 of Act 30
and providing guidelines
regarding timelines for actions
by all players in the
administration of criminal
justice between the period of
the arrest of a person to the
time of his trial.
From the foregoing, all the
reliefs sought by the Plaintiff
are denied.
(SGD) S.O.A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
GBADEGBEJSC
The action herein, which is
taken by the plaintiff, a lawyer
seeks a declaration of nullity
in the exercise of our
interpretative function of
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)
for allegedly contravening
articles 15(2) and 19(2) (c) of
the 1992 Constitution. I have
after giving careful
consideration to the issues for
our decision in this matter come
to the view that the impugned
provision is not inconsistent
with the articles of the
constitution on which reliance
is placed by the plaintiff to
sustain the action herein. As
the action herein has invoked
our original jurisdiction under
articles 2.1 and 130 of the 1992
Constitution with a view to
annulling the impugned
legislation, I desire by way of
approach in determining the
constitutionality or otherwise
of the impugned section to
consider section 96
conjunctively and not
disjunctively as in my view that
advances the true legislative
intent regarding the question
whether it is indeed,
inconsistent with the 1992
Constitution.
Section 96(7) of Act 30 as
amended provides thus:
“A court shall refuse to
grant bail in a case of
subversion, murder, robbery,
hijacking, piracy, rape and
defilement or escape from lawful
custody, or where a person is
being held for extradition to a
foreign country.”
By way of observation, I wish
to say that the list of
specified crimes to which
section 96(7) applies was
expanded by section 41 of the
Anti-Terrorism Act, 2008, (Act
762) to include the offence of
terrorism. The plaintiff’s
contention is that by the said
provision, the jurisdiction of
our courts to grant bail has
been taken away notwithstanding
the clear and unequivocal
provisions contained in articles
14(1), 15 and 19(2) of the
constitution. The plaintiff
further makes the assertion that
the only legitimate grounds that
a court may take into account in
denying bail to an accused
person are those contained in
sections 96(5) and 96(6) of Act
30, which sub-sections regulate
the grant of bail and appear to
place a fetter on the right to
bail in a manner that undermines
the arguments pressed on us by
him regarding the interpretation
to be placed on the impugned
section in the light of article
14 of the constitution. I am in
a great difficulty comprehending
the rationale which accords
legitimacy to the limitations
contained in sub-sections(5) and
(6) but seeks for no discernible
reason to withhold validity from
sub-section(7). Can it be said
that the law-maker in one vein
has the authority derived from
article 14 of the constitution
to enact sub-sections 5 and 6 of
section 96 but acted in excess
of authority in respect of
sub-section 7? It seems to me
that the plaintiff does not
appreciate the fact that in
construing legislations, the
better approach is to read the
various parts of an enactment
together as one document in
order to give effect to the
intention of the lawmaker. It
must be borne in mind at the
onset that the impugned section
has undergone various amendments
since it was first passed for
the purpose of creating some
restrictions on the power of the
court to grant bail to accused
persons and as said earlier in
this paragraph, the existing
legislation in the nature of a
consequential amendment is
contained in section 41 of the
Anti- Terrorism Act, 2008, (Act
762). In its present form, the
exceptions include crimes which
at the time the impugned section
came into being were not
reasonably foreseen such as
terrorism which was only
recently added to the list of
crimes specified in section
96(7) of Act 30).It seems to me
from the various amendments that
the impugned section is
ambulatory to take account of
changing circumstances including
giving effect to international
obligations. For example, it is
no wonder that in view of the
threat to which acts of
terrorism pose to safety and
order it was added to the list
of specified crimes. Recent
happenings the world over must
counsel us that the right to
personal liberty like all other
fundamental human rights though
tangible cannot be enjoyed
absolutely.
A careful reading of sub-section
7 together with the other
sub-sections of section 96,
presents one with a clearer
understanding of the carefully
drafted provisions which were
enacted to ensure the appearance
of persons who are charged with
criminal offences before our
courts. Examining the whole of
section 96, there is no doubt
that its objective is to secure
the release of persons who are
arrested, restricted and or
detained pending trial for
crimes allegedly committed in
the Republic. The object of bail
as was said in an old English
case entitled R v
Broome [1851], 18 L.T. O.
S.19 is to secure by a pecuniary
penalty, the appearance of an
accused person at his trial. So
stated, the effect of bail is to
place the accused in
constructive custody of the
court to ensure that he submits
himself to the jurisdiction of
the court. It seems therefore
that the impugned section seeks
to deny bail to a person in
respect of offences which are
considered very serious and in
relation to which having regard
to the penalty provided for
conviction, it is not reasonable
to expect that when released on
bail pending trialwould for
example turn up in the case of
murder to face the stiff penalty
of a sentence of death.
It is trite law that in
considering bail pending trial,
a court may take into account
factors such as the nature of
the offence and the reasonable
likelihood of the accused
turning up subsequent to bail to
face his trial. See: (1) R
v Scaife (1841), 9
Dowl. 553; (2) Ex parte
Tomanzie (1885), 2 T.L.R.
205. It appears to me that
section 96(7) is a statutory
acknowledgement of the common
law attitude of courts in
refusing to grant bail to
persons charged with capital and
other serious offences as was
pronounced by Afreh JA (as he
then was) in the case of (1)
Isa v The Republic
[2001-2002]1 G L R 128, 137.
Although the said decision was
on the right of a convicted
person to bail pending appeal,
the pronouncements made in
relation to the limitations on
the right to personal liberty
under article 14(1) of the 1992
Constitution are of persuasive
effect to us in these
proceedings. At page 137, the
learned judge delivered himself
thus:
“Admittedly, the applicant
would, unfortunately, have spent
some time in prison. But this
will not be an unlawful
infringement of the applicant’s
constitutional right to liberty.
In the administration of
criminal justice it is often
necessary to keep suspects or
accused persons in prison prior
to and during trials; or
imprison convicted persons
pending the hearing and
determination of their appeals.
Article 14 of the Constitution,
1992 recognises such
incarceration as an exception to
the right to personal liberty.”
While the thinking which might
have informed the development of
such attitude on the parts of
common law courts might today be
questioned in the light of
advents in constitutionalism, I
am unable to agree that merely
acknowledging the said thinking
or presumption in the impugned
section has the effect of its
unconstitutionality. In my
opinion, the question which
arises for our determination in
these proceedings turning on the
said section is whether it is
indeed, a violation of
provisions of the constitution
as contended by the plaintiff.
Over the years, our courts have
been applying the provisions on
the grant of bail under the 1969
and 1979 Constitutions which
utilized words which are
substantially the same as those
contained in articles 15(2) and
19(2) of the 1992 Constitution
by which the fundamental
freedoms of personal liberty and
the presumption of innocence
among others were conferred on
us as part of our fundamental
human rights against the
background of section 96(7) of
Act 30 of 1960. I wish at this
point to observe that when
courts seek to apply provisions
of enactments there is inherent
in the process of enforcement an
application of what is thought
to be their true meaning. A
useful starting point in this
delivery is to have regard to
some of these decisions. In the
several cases that were
previously determined, our
judges did not shy away from the
onerous responsibility of
protecting these fundamental
human rights, but on the
contrary exhibited boldness in
giving effect to what they
perceived as reasonable
interpretation of the said
provisions in relation to
offences which are dire in their
consequences such as murder, and
robbery. Some of the said
decisions speak to the extent to
which judges in this country
have striven to breathe life
into the otherwise abstract
right of personal liberty by the
“jealous scrutiny “which they
exhibited in considering cases
in which violations of the said
right were alleged. See :( 1)
Macmillan LJ in Liversidge
v Anderson [1941] 3 All
ER 338.For example, in the case
of Okoe v the Republic
[1976] 1 GLR 80. Taylor J (as he
then was),considered the
applicable principles granting
bail under article 15 of the
1969 Constitution and section 96
of Act30 and at page 95 after an
exhaustive discussion of the
concept of bail and its practice
expounded the legal position as
follows:
“In my opinion with the
exception of the few principles
I have criticized and drawn
attention to, section 96 of Act
30 as amended by NRCD 309
consolidates substantially, the
common law principles governing
the grant of bail when a person
is brought to court and when
there is no question of delay in
his prosecution. Once there is
an unreasonable delay in the
prosecuting the case then
section 96 of Act 30 is in my
view inapplicable and article
15(3) ( b) and (4) of the
Constitution, 1969, becomes
applicable and in such a
situation, bail in all cases
must be given subject only to
the conditions prescribed in the
articles.”
Earlier on in the course of his
discussion of the principles
governing bail, the learned
trial judge at page 93 made
reference to the constitutional
provisions contained in article
15 (3) (b) and (4) of the 1969
Constitution by which it was
provided thus:
“15. (3) Any person who is
arrested, restricted or detained
(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
twenty-four hours.
4. Where a person arrested,
restricted or detained in any
circumstance as is mentioned in
paragraph (b) or the immediately
preceding clause is not tried
within a reasonable time, then
without prejudice to any further
proceedings that may be brought
against him, he shall be
released either unconditionally
or upon reasonable conditions
including in particular such
conditions as are reasonably
necessary to ensure that he
appears at a later date for
trial or for proceedings
preliminary to trial.”
The above constitutional
provisions which are similar to
article 14(3) (b) and (4) of the
Constitution, 1992 by which it
is provided in the words that
follow:
“3(b) A person who is arrested,
restricted or detained-
(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 either unconditionally
or upon reasonable conditions,
including in particular,
conditions reasonable necessary
to ensure that he appears at a
later date for trial or for
proceedings preliminary to
trial.”
My lords, it does appear to me
that the formulations of the
right of personal liberty under
the 1969 and 1992 Constitutions
are the same and accordingly as
a rule of construction, they
must attract the same
interpretation. In this regard,
I observe that the plaintiff has
not provided any legitimate
reasoning for inviting us not to
follow the collection of cases
on the point. In the
circumstances, what Taylor J (as
he then was) in the Okoe
case (supra) though rendered
by a court lower than the
Supreme Court is of persuasive
value and is deserving of our
attention in our effort to
determine the claim with which
we are confronted in these
proceedings. At page 93 of the
said judgment, the learned trial
judge observed as follows:
“It
is noteworthy that under these
provisions….. once an accused
person is not tried within a
reasonable time, then without
prejudice to any further
proceedings that may be brought
against him, he is mandatorily
entitled to be released either
unconditionally or upon
reasonable conditions including
such conditions as are
reasonable to secure his
attendance at the trial.”See
also: Boateng v The Republic
[1976] 2 GLR 444.
Pausing here, I venture to say
that a careful reading of
article 14 clauses 2 and 4 on
which this case partly turns is
expressed in a language free
from any dispute as to its
meaning, an attribute that it
shares with article 15(3)(b) and
(4) of the 1969 Constitution.
The question which agitates my
mind then is why did the framers
of the constitution provide in
article 14(4) of the 1992
Constitution the following words
in relation to the unconditional
or otherwise release of an
accused person? The operative
words to which my mind is
directed here are as follows:
“Where a person arrested,
restricted or detained…………. Is
not tried within a reasonable
time, then……… to ensure that he
appears at a later date for
trial or for proceedings
preliminary to trial.”
It seems to me that the
constitution makers were aware
of the existing provisions
contained in section 96(7) of
Act 30 and its subsequent
amendments by which certain
designated crimes such as
murder, robbery, possession of
narcotic drugs, treason had a
provision precluding the grant
of bail. One must also credit
the law- maker with knowledge of
the decisions of courts on the
scope and extent of the previous
provisions contained in the 1969
and 1979 Constitutions, which as
said earlier in the course of
this delivery were expressed
substantially in the same
language. I do not for a moment
think that it is unreasonable to
impute to the constitution
makers knowledge of the existing
law as interpreted and applied
by the courts when they
re-enacted the same provisions
which were contained in the
previous Constitutions of 1969
and 1979; indeed it is a guide
that we fall upon when
construing enactments. The words
contained in article 14(4) of
the constitution, which are
known to our jurisprudence are
sufficient in themselves to
persuade me as to the purpose of
the provision and leaves me in
no doubt as to the correct
construction to be placed on the
article. This approach renders
the words to which reference has
just been made in article 14(4)
relevant and it seems to me that
any other interpretation would
render the said words not only
irrelevant but unnecessary as
well. This means that the
Constitution itself recognized
that while there might be
certain crimes in respect of
which in furtherance of the
right to personal liberty may be
granted as of right in some
cases including murder, robbery,
terrorism the right to bail may
only be available when the court
is of the view that there has
been unreasonable delay in
prosecuting the accused. I think
that this construction credits
the makers of the constitution
with reasonableness and avoids
the situation being urged on us
by the plaintiff that once a
person who is arrested,
restricted or detained in
respect of a crime is not tried
within forty-eight hours, then
he is entitled to be admitted to
bail and accordingly section
96(7) of Act 30 is not in
conformity of the Constitution
and must to that extent be
declared null and void. Such an
invitation seeks essentially to
deny to our courts which are
guardians of the rights of the
good people of this country the
exercise of any discretion in
applications for bail including
but not limited to
considerations such as the
likelihood of the accused
turning up at his trial and the
severity which conviction might
entail. The plaintiff’s
contention seems to me to be
derived from an unattractive
construction of the impugned
section and I am unable for the
reasons set out in this delivery
to make accession to his
submissions.
The position discussed in the
preceding paragraph appears to
be similar to that which
pertains to Nigeria where by
article (section) 35 of their
constitution provisions similar
to that contained in article
14(1) of the 1992 Constitution
provide in regard to personal
liberty as follows:
“Every person shall be entitled
to his personal liberty and no
person shall be deprived of such
liberty save in the following
cases and in accordance with a
procedure permitted by law………….”
The constitutional provision
then proceeds to enumerate
instances such as are contained
in clause (1a) to (1g) of
article 14.There is also by
section 35(4) of the
constitution, a requirement that
persons arrested shall be
brought before court within a
reasonable time or be released
either unconditionally or upon
such conditions as are
reasonably necessary to ensure
their appearance before court at
a later date to face trial. But
then there is a further
provision in section 35 (7) of
the constitution by which bail
is withheld in cases involving
persons arrested for capital
offences. The comparative
reference made to Nigeria is to
demonstrate that the right to
personal liberty like all other
rights which are fundamental in
nature are not absolute but
qualified in their enjoyment.
See: Dokubi –Asariv
Fed. Rep. of Nigeria
(2007)12 NWLR (Pt.1048), 331 in
which Ibrahim Tanko Mohammad JSC
observed as follows:
“The above provisions of section
35 of the constitution leave no
one in doubt that the section is
not absolute. Personal liberty
of an individual within the
contemplation of section 35 (1)
of the Constitution is a
qualified right in the context
of this particular case as by
virtue of sub-section (1c)
thereof which permits
restrictions on individual
liberty in the course of a
judicial inquiry or where,
rightly as in this case, the
appellant was arrested and put
under detention upon suspicion
of having committed a felony….”
I do not disregard the fact that
in Nigeria, the preclusion
regarding capital offences is
contained in the Constitution
unlike here where it is provided
for by an Act of Parliament,
which by learning is subsidiary
in nature. But then there are
the opening words of article 14
(1) of the 1992 Constitution as
follows:
“Every person shall be entitled
to his personal liberty and no
person shall be deprived of his
personal liberty except in the
following circumstances and in
accordance with procedure
permitted by law.”
Similar restrictions are
recognised in jurisdictions such
as Australia where in the case
of Gethardyv Brown
(1985) 57 ALR 472, 495-496, the
High Court in a case that
concerned an aspect of personal
liberty-freedom of movement
emphasized that the exercise of
the said right is not absolute
and that restrictions are
permissible if necessary for the
promotion of public order,
safety or morals. I observe that
while rights are not created by
states but recognised by them,
their enjoyment can only be
secured by a legal system which
creates the environment for all
citizens to exercise these
rights in a manner that balances
individual rights with the needs
for security of the state.
Although there may be
philosophical objections to
restrictions being placed on
fundamental human rights, I
think that it provides the only
acceptable mode by which the
enjoyment of those rights by the
citizenry can be guaranteed.
Perhaps, it may be said that
most of the offences specified
in the impugned section are
clear instances in which those
accused have deprived others of
their fundamental human rights
such as the right to life in the
case of murder and it is
surprising that in our efforts
to give meaning and content to
the right of personal liberty,
we tend to lose sight of those
whose rights have been trampled
upon by limiting our
consideration to the violators.
Such an attitude undermines the
reasonable expectation of law
abiding citizens that persons
who do not respect the rights of
others will not be treated as
privileged citizens in a manner
that appears to discriminate
against the victims of those
crimes.
Article 14 (1) of the
constitution while enumerating
the circumstances to which the
right of personal liberty may be
subject also refers to
permissible legal procedure
which cannot be said to exclude
the practice prevailing in our
courts by which applications
for bail are made on behalf of
persons who are under arrest in
respect of crimes and are either
acceded to or refused by taking
into account established
principles to which reference
have earlier on been made as
well as section 96 (7 ) of Act
30-the impugned section. Indeed,
Act 30 is the substantive
legislation that regulates the
existing practice and procedure
in criminal matters in our
jurisdiction. The use of the
words “and in accordance with
procedure permitted by law” in
article 14(1) appear to be of
some value to us in the
determination with which we are
confronted in these proceedings
and seem to give legitimacy to
the existing practice and
procedure in our courts
regarding applications for bail.
Before I end this delivery, I
wish to turn my attention to the
case of Gorman v The
Republic [2003-2004] 2
SCGLR, 784. By the said
decision, this court considered
the applicability of article
14(4) in cases for bail pending
trial for offences specified in
the impugned section. In its
judgment, the court unanimously
reached the conclusion that the
provision contained in articles
14(1) and (3) created a
“derivative constitutional
presumption of grant of bail” by
virtue of article 14(4) but that
presumption might be rebutted by
the statutory preclusion
contained in section 96(7) of
the Criminal and other Offences
(Procedure Act), Act 30 of 1960
as amended by section 2 of NRCD
309. Before us it has been
forcefully urged by the
plaintiff that the said decision
was wrong and accordingly, we
are invited to pursue a
different path on the lines
contended by the plaintiff.
In my view, had the said
decision directly dealt with
the status of section 96(7) of
Act 30, its value as a binding
precedent would not have been in
question as it is a previous
decision of this court. The
pronouncements in the Gorman
case (supra) in so far as the
impugned section is concerned
were incidental to the
determination of the question of
bail and did not directly deal
with the issue of the status of
the section by declaring or
defining it. That case seems to
have determined only the
interest of the parties in the
bail application and although
the impugned provision was
discussed in the judgment, its
unconstitutionality or status
was not distinctly raised and
inevitably decided such as to
create estoppel by judgment See:
(1) R v Humphrey
[1975] 2 All ER 1023, 1026.
As the judgment in the Gorman
case (supra) did not determine
the status of section 96(7) of
Act 30, it fails to measure up
to the designation of a judgment
inrem. See: (1)Halsbury’s Laws
of England(4th edition, reissue,
1992), volume 16, para 971 on
“Estoppel”; (2)
Lazarus-Barlow Estates Co Ltd
v Regent Estates Ltd
[1949] 2 All E. R. 118,
122.Reference is also made to
the following passage from B L
Stayer’s book “The Canadian
Constitution and the
Courts”,(3rd edition, 1988) at
page 194, wherein he observes:
“ ………..
that on principle a decision as
to statutory invalidity, made in
an ordinary litigation, other
than a declaratory action should
not lead to a judgment in rem.
Such proceedings involve a
collateral attack on the
legislation, not a direct
attack. That is, the issue
before the court may involve for
example a claim for damages, a
criminal prosecution, or an
application to quash the order
of the inferior tribunal. The
relief requested is not a
declaration of invalidity of a
statute per se, though it may be
necessary for the court to make
some finding in this regard
where statutory invalidity is
alleged, as a ground for the
granting of the relief
requested.”
While conceding that the court
in the Gorman case
(supra) was not directly called
upon to determine the
constitutionality of the said
provision but the interest of
the appellants in the statutory
provision for the purpose of
deciding their entitlement to
bail which having been granted
earlier in their favor by a High
Court was rescinded by the Court
of Appeal, I think that the
pronouncements made in the
judgment of the court which was
delivered by Prof OcranJSC ( as
he then was)are entitled to be
accorded great weight especially
so as it has by virtue of the
rules of judicial precedent
contained in article 129 of the
constitution been applied by
lower courts in resolving
similar questions on the grant
of bail. I think the decision in
the Gorman case (supra)
which was attacked in these
proceedings by the plaintiff may
be likened to the judgment of a
court of co—ordinate
jurisdiction which though not
binding onus is one to which me
may give effect to on grounds of
judicial comity unless we are
convinced that it was delivered
in error. See: AsarevDzeny[1976]
1 G.L.R, 473, 480. The principle
inherent in the case of Asare
v Dzeny enables us to
direct our minds to reasonable
restraint when we are confronted
with previous decisions rendered
by this court and which have for
a considerable period been the
basis of the exercise of
jurisdiction by other courts by
virtue of the doctrine of
judicial precedent contained in
article 129(3) of the
constitution in order not to
undermine a core characteristic
of the common law namely
certainty of the law.
After giving careful thought
and consideration to the said
decision in the light of the
action herein, I have come to
the decision that it mirrors the
true meaning of the impugned
section in line with previously
decided cases and I accept the
pronouncements made therein as a
correct exposition of the law.
Therefore, I am of the opinion
that in cases specified in
section 96(7) of Act 30 as
amended by Act 762 where a
person is charged with any of
the offences specified in the
section is being proceeded with
by way of trial reasonably then
the court may refuse bail to the
person pending trial. Where,
however there has been
unreasonable delay or the case
is not being prosecuted within a
reasonable time then by virtue
of article 14(4) of the 1992
Constitution , such a person may
be admitted to bail pending
trial. That position is derived
from a fair reading of the
provisions of the constitution
and actually reflects the
thinking in several
jurisdictions where bail being,
a creature of statute mayon
legitimate grounds reached after
delicately balancing the
security needs of society
against the right to personal
liberty of the individual may be
restricted in cases where a
person is being proceeded
against for a capital and or
some other serious offence as
contained in section 96 (7) of
Act 30. I think similar
considerations preclude courts
from granting bail in respect of
other offences which do not come
within the scope of the impugned
section and emphasizes the
discretion that courts have in
such matters. After all in any
civilized democracy, citizens
may have to give away some of
their rights for the good of the
society subject in appropriate
instances to the payment of
compensation as provided for in
article 14(7) of the
constitution. The restriction on
the right to personal liberty
which arises from section 96(7)
of Act 30 is in its nature only
a qualification but not a
deprivation such as to
constitute a contravention of
the Constitution of 1992.
It seems to me that the real
thrust of the plaintiff’s case
appears to be the violation of
the right of his personal
liberty contained in article 14
of the 1992 Constitution and in
particular clauses 3 (b) and (4)
The other rights such as the
presumption of innocence, in my
respectful view impacts upon the
right guaranteed by article 14
but is more appropriately
considered in determining the
evidential burden on accused
persons in criminal matters
.That aspect of the matter has
been sufficiently dealt with by
my esteemed colleagues in
various judgments which are
about to be read today; for
which reason I desire not to
expend any further time on it.
Having come to this view of the
matter, I find myself on the
side of my worthy sister
AdinyiraJSC (Mrs.) with whose
dissenting opinion, I am in
convergence.
(SGD) N.S.GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL
BRIGHT OBENG MANU ESQ FOR THE
PLAINTIFF
WILLIAM KPOBI ESQ. CHIEF STATE
ATTORNEY FOR THE DEFENDANT |