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Opinions of Friday, 14 December 2007

Columnist: Antwi, William

Free The President's Killer Now!!!!

On the 14th of November this year, the life of our sitting president was nearly stuffed out when he was involved in a vehicular accident. No fatalities nor serious injuries were reported. Hallelujah! In the process, however, the driver who allegedly caused the said accident and going by the name, Mr. Thomas Osei, was arrested and is now (according to reports) facing provisional charges of "dangerous driving, negligently causing harm, driving under the influence of alcohol and failing to give way to the presidential convoy". Like many of these high-profile cases, this case is exposing the ugliness which has come to represent the face of the administration of criminal justice in our dear country.

The present writer seriously believes that Mr. Thomas Osei is receiving a raw deal from the powers-that-be. And, that his continued incarceration constitutes a clear and classic case of undue punishment before trial. Mr Osei is alleged to have been drunk on that fateful day. So most people are saying to themselves, "what the heck! He brought this on himself, so why should we care? I think we should care about the present predicament of Mr. Osei because this case might affect us in more than one way. The stark point here is that we might also fall victim to the government's overreaching tendencies. If we fail or refuse to rise up in defense of rule of law, we are tacitly emboldening the government and our courts to perpetuate that which is not right and correct. After all, didn't we rededicate ourselves in 1992 to the 4th Republican constitution when we solemnly promised ourselves that we were going to respect the tenets of the rule of law, fair play, justice and equality?

When an accused is arrested and presented before a court, the judge may admit him to bail before trial depending on the circumstances of each case. This is a discretionary exercise of judicial power by the court and, as in all cases of discretionary power, it must be exercised judiciously. In other words, granting of bail does not depend on the hunch of judges. The record must necessarily and clearly establish why bail is being refused and must not be based on sensational tabloid newspaper reports or mere suspicion that the accused person is a danger to himself or the community. For all we know, Mr. Osei has not been charged - even provisionally - for attempted murder. There is nothing on record to show that this was a premeditated, suicidal act!

So why should the court jeopardize the time-honored criminal law principle of "innocent until proven guilty"? Are we now living in a society where fellow citizens are treated like criminal convicts before they are even formally charged, much more convicted? Why are we minimizing Mr. Osei's liberty?

It is the humble opinion of the present writer that as a matter of public policy, courts should take serious look at cases where the personal liberties are involved in setting or refusing bail. Isn't it trite that bail is normally denied by the courts in circumstances where the accused is apt to disrupt investigation or intimidate witnesses or flee before trial? And, not in cases where such circumstances are absent?

In the instant case, let's ask ourselves why the court is refusing bail for Mr. Osei. To civil minded individuals, the critical issue is: Is this a bailable case? I don't think anybody doubts the fact that this is one of those cases where bail is granted while the government prepares its case. It is painfully obvious that the only reason why the authorities are holding Mr. Osei is the glaring fact that the victim in that unfortunate accident happened to be our president. And, nothing else! This is a very disturbing approach to giving effect and credible meaning to enforcement of our laws. Why should the enforcement of our laws depend on the personalities involved in a particular case? The enforcement of the laws of the land should not discriminate against the parties involved. Let the truth be told here: Mr. Osei would never have spent a day in custody had this accident involved any other person not named the president of Ghana or some top political afficionado. Unsettling, huh?The right to be admitted to bail before conviction must be read in conjunction with Article 14(4) of our constitution which says in pertinent parts that an accused person shall be admitted to bail either conditionally or unconditionally on reasonable terms. This all-important provision takes cognizance of the legal truism that an accused person should not be punished until a conviction is secured by the state. What does the court have against Article 14(4)? In the instant case for example and since bail is set on individualized basis, the court in setting bail may order that the accused does not operate any vehicle until the final disposition of the case or report to the Police at such times as the court may determine.

Of course, these conditions are set to assure the appearance of the accused in court and to protect the public and other road users.

I am therefore prepared to state without any defensiveness that the continued incarceration of Mr. Thomas Osei is undue punishment before trial. With our renewed and vigorous commitment to rule of law as clearly verified by the preamble to our constitution, we should not be standing pat while the liberty of a fellow citizen is being flagrantly violated just because the victim in the accident happened to our president. We should stop treating Mr. Osei as a convicted criminal and trivializing his liberty! Where is our outrage as a people? Now, can Mr. Osei be granted bail while awaiting his day in court? We rest our case for now.

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