To bail or jail: Problems of granting bail

The recent arrest, detention and subsequent release on bail of Hopeson Adorye, a former leading member of the New Patriotic Party (NPP) who defected to the Butterfly movement of Alan Kyerematen, is the catalyst for this article. 

The focus is not on the lawfulness or otherwise of the arrest and detention, but rather on the general question of the operation of bail in the Ghanaian criminal justice system. The emphasis will be on the problems regarding the granting of bail to arrested persons.

An essential hallmark of any free and democratic society is the freedom of its citizens to go about their business without let or hindrance. All major international and regional treaties on human rights and most modern constitutions guarantee this essential right of citizens.

In Ghana, our Constitution in Article 14, guarantees a person the right not to be subjected to unlawful arrest or detention. One of the rights available to an arrested person is the right to bail.

Bail

Bail is essentially a procedure where a judge or a magistrate sets at liberty one who has been arrested or detained upon receipt of security to ensure the released suspect later appears in court for further proceedings.

So it is a temporal release, while the court process continues. Bail may be subject to conditions to guarantee the suspects appearance at trial. The rationale for release on bail, pending the determination of the court of the guilt or otherwise of an arrested person, is underpinned by the constitutional guarantee of the right of presumption of innocence.

The importance of this right was eloquently and lucidly expressed by his Lordship Benin in the case of Martin Kpebu vs the Attorney General. He quoted from the celebrated American case of Coffin vs the United States, thus “the principle that there is a presumption of innocence in favour 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 granting of bail is therefore a pivotal right, taking its roots from the principle of presumption of innocence to ensure that suspects who eventually are acquitted at trial do not suffer arbitrary and unlawful detention.

Types

There are two types of bail: police and court, but the factors which govern them are pretty much the same. It is a discretionary power, but the police officer or the judge or magistrate must exercise that discretion judicially i.e., it must be based on law.  

Some of the factors taken into account are the seriousness of the offence, the strength of evidence, the ties of the suspect to the community, the availability of sureties etc.

The granting of bail is fraught with problems and is in need of urgent reform. To begin with, it has been problematic as to who qualifies to be a surety. The practice of insisting that the sureties are civil or public servants puts an unnecessary fetter on the right to bail.

There have been numerous instances where accused persons have found it difficult to find civil or public servants to stand as surety for them. In my opinion, a responsible citizen of sufficient means should be able to stand surety for accused persons. 

But by far the greatest hindrance to the granting of bail, especially for poor or indigent accused persons, is justification, largely in the form of landed property. This is because not everyone owns property, and therefore, this condition drastically reduces the field of persons able to stand surety.

Another area worthy of reform is the amount of the bail sum. In most cases, the bail sum is fixed exceedingly high to ultimately render the granting of bail, where it is indeed granted, a pyrrhic victory.

This is wrong especially as the law governing bail in Ghana, Article 96 of the Criminal and Offences Act, stipulates that bail “shall not be excessive, harsh or serve as punishment”. If the bail sum were to be fixed according to means, it would go a long way to guaranteeing the Constitutional right to liberty and, by extension, the right to bail.

In addition, if conditions were to be imposed on accused persons, this would satisfy the Prosecution seeking to oppose bail. For example, daily reporting at police stations, imposition of curfews or tagging to monitor the movement of suspects.

It is hoped that the police and judges alike will interpret the law governing bail broadly, like all human rights interpretation, in order to guarantee constitutional aims. 

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com