Bail: A suspect’s worst nightmare

Have you ever wondered what bail is and how it continues to impact our modern Ghanaian society? Bail is the release of an arrested person on condition that the person will appear before the court when needed at a future date, and that they will abide by any restrictions imposed upon them.

Bail determines whether an individual may return home pending trial or remain in custody, with or without conditions.

This article seeks to educate Ghanaians on the issues surrounding the application and grant of bail.

In Ghana, the conditional release of a suspect is guaranteed by Article 19 of the 1992 constitution of Ghana (Presumption of Innocence) and the Criminal Procedure1960 Act 30 (as amended).

Section 96(7) of the Criminal Procedure, now repealed, states that “A court shall refuse to grant bail in a case of treason, subversion, murder, robbery, narcotics, hijacking, piracy, rape, defilement or escape from lawful custody and where a person is being held for extradition to a foreign country.”

Currently, there are three known types of bail. The first is police enquiry bail. This is granted at the police station following their investigation. The second is bail pending trial. This is granted before the trial of a suspect begins. An oral or written application may be made to the court for consideration or the court could grant it on its own accord. The third type is bail pending appeal. This is when bail is granted to a suspect after conviction whilst seeking an appeal with the likelihood of success. The suspect must be able to satisfy the provisions of section 96(5).

It is important to note that  “a court shall not withhold or withdraw bail merely as a punishment,” as stated in section 96(4).

Consequently, in contemporary society, it is commonly misinterpreted as a way to punish offenders who have not been formally found guilty or as a ‘get out of jail free’ card used by the wealthy and powerful.

In a landmark case; the KpebuVs Attorney General number 2, it was established that bail was important despite the offence committed.

Counsel submitted, among other things, that bail was directly linked to individual liberty which is guaranteed by article 14 of the Constitution 1992; and that the no-bail provision as stipulated in section 96(7) of Act 30 as amended by Act 633, has raised constitutional challenges, predominantly, when examined against the automatic presumption of innocence until proven guilty or confession of committing a crime.

Counsel further argued that the presumption of innocence was not negated unless a person was pronounced guilty of an offence after a hearing or upon a plea of guilty; and that the constitutional presumption of innocence could not be taken away by a dictum.

In Conclusion, the Supreme Court has put to rest all the doubts and has finally justified the law by giving the court the discretion to grant bail regardless of the offence thus repealing the said provision.Even though it is solely at the discretion of the court, the key issue is that section 96(7) of Act 30 is no longer good law.

Similarly, section 19(2) of the 1992 constitution further explained that “a person charged with a criminal offence shall be presumed to be innocent until he is proved guilty or has pleaded guilty.”

Notwithstanding, bail, as stated in section 96(5) may be refused if the police or the courts had reason to believe that there is an unacceptable risk that the suspect might “not appear to stand trial, interfere with a witness or the evidence or in any way hamper police investigations, commit a further offence when on bail and 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 securing bail, the suspect must be willing to provide a surety.A surety, in this case, means someone who can provide the whereabouts of the accused person as and when he/she is needed by the court or police to aid with investigations.

The Courts grant bail with conditions of surety’s simpliciter. In the same vein, the Court at its discretion can request the sureties to be justified. In this case, the surety must provide documents of properties to be used in the execution of the bail condition. An example is the Venture Capital Trust Fund Case where the presiding judge, Mr Justice Anthony Oppong, in granting the bail application of the accused persons on May 3, 2019, requested their sureties must be justified.

However, it is important to note that a surety would not be discriminated against on the grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

A person may appeal to the High Court when bail is denied at the Circuit Court or where the conditions of bail appear to be excessive or harsh. The Accused can continue to the Court of Appeal then to the Supreme Court if bail was denied.

Concerning the application and granting of bail, the Ghanaian Times, after its investigations discovered that there had and continue to be instances where monies are extorted from suspects before they are granted either a police enquiry bail or a court bail.

A lawyer at the Brookman-Amissah & Associates law firm, Lord Delvin Essandoh proposed that suspects could petition the office of the Inspector General of Police (IGP) and the Police Intelligence and Professional Standard Bureau(PIPS) stating the wrongdoing of the individual involved so adisciplinary process can be activated.

He explained that there had been instances where policemen who unlawfully extorted monies from suspects, when reported, became subjects of service enquiries, because “it is a misconduct.”

Mr Essandoh called for more public education and charged the GPS to produce a helpline (if one does not exist) where victims of police misconduct quickly report whilst explaining that “all these things with education will go a long way to aid the public and people who don’t have information about the subject matter.”

“So that one does not need to write a letter to the IGP before one can make a report on extortion of monies from a relative who is being held in custody,” he bemoaned.

In an interaction with a victim of police misconduct, Michael (not real name) said during the time he was arrested, he had little to no knowledge about the grant of bail.

He explained that the detective in charge of his case took that opportunity to extort money from him saying “she forced me to pay her 500 cedis before I was released.”

It is important to note that Michael was just one of many victims out there. The issue of police misconduct has gone on for several years now but it’s high time victims gather the courage to report these misconducts. Persons can write a letter to the IGP or the PIPS for a further investigation of the matter.

Moving forward, it is important to note that Bail is “FREE” hence persons must avoid paying monies when demanded by police officers before release.


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