Over the past couple of days, our screens have been splattered with headlines and scenes relating to Chairman Wontumi, the Ashanti Regional Chairman of Ghana’s opposition party, the New Patriotic Party. Media reports indicated that on Monday, he was formally invited by the Police CID at the Headquarters in Accra, an invitation he honored. This invitation followed a botched attempt at his arrest the Friday before at his residence.
Mr. “Wontumi” was subsequently arrested in what many have described as a “Rambo style” manner on his way back from the Police CID by officials of EOCO. He was allegedly interrogated and granted bail to the tune of GHS 50,000,000 (approximately $5 million dollars) with two sureties to be justified by EOCO.
It is the conditions of bail, in light of the entire circumstances, that have piqued this author’s interest.
The Constitutional Mandate of Liberty and Presumption of Innocence
Bail is a foundational concept in criminal law, steeped in the rights of a person to personal liberty. Article 14 of the 1992 Constitution deals with this very fundamental right and follows directly after the Right to Life under Article 13. This, to me, signals the premium the framers of the Constitution placed on liberty. A right to live, once granted, must carry with it a right to move freely, or it is meaningless. It is for this reason that Article 14(1) lists six exhaustive scenarios under which a person’s liberty may be restrained. These are, in brief:
- Convictions for criminal offenses
- Convictions for contempt of court
- Care and treatment of infectious or mentally unsound persons to provide treatment or protect the community
- Education of persons under eighteen years of age
- Suspicion of having committed or being about to commit a criminal offense.
Given the inherent gaps and propensity for abuse that lie in the last scenario—the possibility that a person who is completely innocent may be charged with an offense, with the necessary consequence that their liberty may be taken away—the framers inserted Article 14(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.”
The law, recognizing the possibility of a person’s liberty being stripped by the imposition of mere allegations, provides a two-day time limit within which that person must be brought before a court.
Connected to the sacred concept of personal liberty is the garb of innocence that is at all material times, fully and protectively clad on an accused person arrested on suspicion of having committed an offense. It has been described as “axiomatic and elementary” by the American Supreme Court and is enshrined in Article 19(2)(c) of the 1992 Constitution. Its enforcement lies at the core of our criminal law.
There is thus a necessary nexus between the grant of bail and the innocence of the accused person, because a person who has been arrested is merely suspected of having committed the offense and remains innocent until proven otherwise. Such a person should only be locked away where it is very justified.
Benin JSC, in the landmark decision of Martin Kpebu vs. Attorney General, Writ no. J1/13/2015, delivered on May 5, 2016, agreed with similar arguments put forward by the plaintiff and stated:
“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.”
I have already stated that an accused person who is arrested and not released must be brought before a court before the expiration of forty-eight hours. The time limit is constitutionally mandated and starts from the moment the person is arrested. Indeed, its brevity is testament again to the high value the law places on liberty, and the law is trite that the procedure is intended to subject the power of detention to judicial control and determine whether the continued detention of the individual is justified. There is no justification in law for the continued detention of a person beyond 48 hours without the court’s blessing, and that would be a grave breach of human rights.
As if the 48-hour rule was not enough, the Constitution also provides that a person must be released unconditionally or upon reasonable conditions where the trial does not happen within a reasonable time following their arrest. This, of course, is without prejudice to any further proceedings that may be brought against them. Again, this aversion to delay shows the law’s no-nonsense approach towards the undue incarceration of suspects.
It is trite that bail is the process by which an accused person is released from legal custody upon satisfaction of reasonable conditions that assure that the accused person will appear to stand trial. I will add for emphasis that it is the means by which a person’s constitutional right to liberty may be fully exercised.
The Questionable Nature of Police Enquiry Bail
Bail is primarily a power typically vested in the Courts. While the Police have also been statutorily empowered to grant bail under Sections 15 and 96 of Act 30—a power generally known as “Police Enquiry Bail”—this specific addition, in my view, represents an undue stretch of constitutional provisions. The 1992 Constitution, in its original text, does not appear to envisage the awkward situation where the very institution making an arrest would also have the liberty to set bail conditions. Instead, it seemingly presents two clear options: either release the arrested person unconditionally or present them before a court for judicial scrutiny.
It is my humble view that this statutory power granted to the police acts as an unnecessary impediment to the exercise of enshrined human rights to liberty. The inherent conflict of interest is clear: the arresting authority lacks an incentive to release as this may be a tool to intimidate or pressure the accused person to give more information they otherwise would not. If the police believe there is sufficient cause for arrest, their duty should be to promptly bring the individual before a judge. Allowing them to set bail conditions creates a grey area ripe for abuse. For instance, the police might impose overly onerous conditions, effectively circumventing the 48-hour constitutional limit for detention under the guise that bail has technically been granted, even if the conditions are practically impossible to meet. This scenario unjustly prolongs detention and undermines the fundamental right to liberty.
I contend that the Constitution’s deliberate omission of such a power for the arresting authority was precisely to prevent this kind of procedural ambiguity and potential for abuse, ensuring that the power to curtail liberty is reserved for the judiciary.
Bail Conditions and the Primary Consideration: Appearance to Stand Trial
The main rationale behind the grant of bail is to ensure that the accused person shows up to stand trial. It is in no way a determination on the merits of the guilt or innocence of the accused person to the charges proffered. Coleridge J., the English Criminal Law heavyweight, set out the foundational principles underpinning the grant of bail in R. v. Scaife (1841), where he posited:
“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 to take their trial. It seems to me, that the same principle is to be acted on in an application for bailing a person committed to take his trial, and it is not a question as to the guilt or innocence of the person.”
Accordingly, Act 30 provides extensive guidance to a court where a person is brought before it after being arrested, with or without a warrant. Sections 96(5) and (6) set out factors which are to be considered by the courts in deciding whether or not to grant bail. The first thing a court must consider in the grant of bail is whether or not the accused person may appear to stand trial. That is the central consideration a judge must apply when determining a question of bail. The statute provides another sub-criteria that supports this view I have canvassed. It provides that in considering whether it is likely that the defendant may not appear to stand trial, the Court shall take into account certain criteria:
- The nature of the accusation
- The nature of the evidence in support of the accusation
- The severity of the punishment which conviction will entail
- Whether the defendant, having been released on bail on a previous occasion, has willfully failed to comply with the conditions of the recognisance entered into by the defendant on that occasion
- Whether or not the defendant has a fixed place of abode in the Republic, and is gainfully employed
- Whether the sureties are independent, of good character and of sufficient means
Among all the preliminary considerations listed in the statute, only the question of the accused’s readiness to stand trial is elaborated with such detailed sub-criteria. This, in my humble opinion, significantly underscores its supreme importance in bail proceedings, suggesting a deliberate legislative intent to prioritize the integrity of the judicial process and ensure that justice is not thwarted by a defendant’s flight.
The granular detail provided for this factor indicates that the legislature views it not merely as one consideration among many, but as the foundational pillar upon which the decision to grant or deny bail must rest.
I further submit that the prevailing practice where judges, police, and other law enforcement officers impose bail conditions that are directly tied to the sum an accused person is alleged to have unlawfully acquired constitutes a fundamental breach of the constitutional right to bail. This approach, in my view, demonstrates a profound misunderstanding of the presumption of innocence and the true purpose of bail. Bail is not intended as a pre-conviction penalty or a mechanism for recovering allegedly illicit gains. Its sole purpose is to ensure the accused’s appearance to stand trial.
In Re Barronet and Allain (1852) 1 E. & B. Coleridge J. stated the law eloquently:
“This court has at all times an unlimited discretion to admit to bail persons charged with felony, ….the guilt of the person charged is not the direct ground on which he is detained in custody; and that the strength of the evidence of guilt, even when it amounts to a confession, is not conclusive as to the propriety of bailing. But it is a very important element in considering whether the party, if admitted to bail, would appear to take his trial.”
Coleridge J.’s pronouncement makes it clear that the nature of the evidence against a person is not a direct ground for detention or for determining bail conditions. Therefore, even if a person is suspected of having laundered GHS 150,000,000, it does not logically follow that bail conditions must necessarily reference that sum. Firstly, these are unproven allegations, and to base bail on such figures effectively punishes an individual before conviction, violating the presumption of innocence. Secondly, and more critically, as highlighted by Coleridge J., even in the face of tremendous evidence of guilt, the most crucial consideration remains whether the party, if admitted to bail, would appear to stand trial.
It is my humble view that authorities should instead invest in and utilize modern alternatives, such as ankle monitors and other suitable technologies. These tools can adequately and more justly monitor an accused person on bail, ensuring their appearance without imposing unconstitutional and disproportionate financial burdens based on unproven allegations. This approach would align with both the spirit of the law and the constitutional right to bail, focusing on risk mitigation rather than punitive measures.
Yaw Nkansah Abankroh Esq.
0558789982
