Constitutionality of the statutory bar on bail for listed offences
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.
Duty of the court on a bail application for a serious offence
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.
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.
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.
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.
Presumption of innocence and the right to be considered for bail
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.
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.
Whether a statute may permanently bar the court from considering bail
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.
Whether the refusal of bail is a judicial or an executive act
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 219 that: Liberty is too priceless to be forfeited through the zeal of an administrative agent.
Who decides whether a charge falls within the listed offences
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.
