Common to all democratic states, every person is entitled to his right to personal liberty and freedom of movement. This right, just like any other human right, has limits. In article 14(1) of the 1992 Constitution of Ghana, the right to liberty can be curtailed when a person is suspected to have committed a criminal offence. A person may be arrested with or without a warrant. In Ghana, four categories of arrests without a warrant exist. They are arrests by officers of law enforcement agencies[i], private citizens arrests[ii], arrests by judges[iii] and arrests by senior prosecuting officers of the Legal Service[iv]. In all these cases, the entity authorised to detain an arrested suspect in lawful custody is a law enforcement agency. This short write-up will set out the processes after an arrested person is placed in custody.
The constitution permits detention for a period of not more than 48 hours after the arrest.[v] At the end of that period, the detaining body is mandated to either release the suspect or bring him/her before a court of competent jurisdiction. In both scenarios, two things can happen. In respect of the detaining body, the release may be absolute while further investigations are conducted, or the suspect may be granted a police enquiry bail bond pending the completion of investigations. In the case of an arraignment before a court, the suspect may be remanded into the custody of the arresting agency under a court remand warrant or may be admitted to bail with or without conditions. A police enquiry bail bond is as enforceable as a court bail order.[vi]
Within the 48 hours of an arrest, and immediately after the period has been exhausted, a detainee may make a case for the grant of bail (by the court or by the police). The factors in article 14 of the Constitution and section 96 of Act 30[vii] are relevant.
- That nothing substantial has been put forward by the arresting body. This is especially so for frivolous complaints which have no merit.
- That the suspect will make himself available whenever needed to assist with investigations or to appear in court.
- That the suspect will not interfere with the investigations being conducted against him.
- That the suspect will not tamper with witnesses that are involved in the case.
- That the suspect is prepared to enter a bond, with or without sureties on reasonable terms.
- Alternatively, that the suspect is willing to make a deposit of a sum of money to the court or detaining border in place of the bail bond.[viii]
As is common knowledge, bail bond is free in Ghana. The bail sum and the justification become redeemable only after the bail bond is breached and the sureties fail to show cause why the bond should not be paid by them. In practice, a surety will have to demonstrate to the court that all reasonable steps have been taken to locate and produce the suspect but without success. In cases where a suspect opts to make a deposit of money, the amount will be forfeited in the same manner as where a bail bond is executed.
Where a person is remanded after the 48hrs and some time has elapsed without any end in sight, an additional argument can be made in seeking the release of the detainee under article 14(4) of the Constitution, that there has been unreasonable delay in the trial of that person. Investigations cannot go on forever. The catch however is that there is no definition of a reasonable period within which a person must be tried. See cases such as Arthur v The Republic[ix]. In the more recent case of Tetteh Samadzi v The Republic[x] it was stated that although the constitution has not provided what a reasonable time is, this can be determined on a case-by-case basis having regard to the nature of the offence, the evidence and availability of witnesses. What is clear however is that the Prosecution must not have caused or contributed to the delay. In Dogbe and Others v The Republic[xi] this principle was espoused, and it placed emphasis on delays in the justice system itself such as the packed diaries of judges, the problems with getting jurors for empanelling etc. The test is that the delay must not be the fault of the court or the prosecution as these are the organs responsible for timeous prosecution.
Arguments made by bail applicants and prosecutors are mainly based on factual matters, such as the following:
Accused:
1. That the police have taken an unreasonable amount of time to complete their investigations.
2. That the Law Office has delayed in submitting its advice on the case docket to the police for further legal action.
3. That the Republic has delayed in filing charges although prosecution has been recommended.
4. That although charges have been filed, the prosecution has not been able to file disclosures/witness statements or open its case.
Prosecution:
1. That the case is a complex one that requires detailed and painstaking evidence gathering.
2. That the accused may have absconded after the commission of the offence, which may have resulted in a delay in completing investigations.
3. That witnesses may be reluctant to testify due to some interference by the accused and so his release into the community would aggravate the situation.
Bear in mind that the grant of bail is discretionary. The presumption of innocence is rebuttable and not absolute and so bail is not automatic.[xii] It is the duty of the applicant to satisfy the court that he will appear to stand trial should he be formally charged with an offence and during the pendency of his trial. It is important to know your judges and to attach relevant documents to your application, such as details of place of abode, proof of gainful employment, information on sureties etc.
[i] Agencies such as the Ghana Police Service, Narcotics Control Commission, Economic and Organised Crime Office and the National Investigations Bureau. Also see section 10 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).
[ii] Section 12 of Act 30
[iii] Sections 17 and 18 of Act 30.
[iv] Section 4 of the Law Officers Act, 1974 (NRCD 279)
[v] Article 14(3) of the 1992 Constitution
[vi] Section 15(3) of Act 30
[vii] Criminal and Other Offences (Procedure) Act, 1960
[viii] Section 99 of Act 30
[ix] [1982-83] GLR 249
[x] [2020] Crim.LR 268 per Gbadegbe, JSC
[xi] [1976] 2 GLR 82
[xii] Gorman & Others v The Republic (2003-2004) SCGLR 784 and Martin Kpebu v Attorney-General No. 2 [2020] Crim.LR 97