What we must know about bail

By: Stephen Okai Aboagye

**The Writer works with the Commonwealth Human Rights Initiative, Africa Office. *

*T*he Rights of Arrested Persons which include the right to bail are essentially protected under Chapter Five, Article 14 of the 1992 Constitution of Ghana and Section 96 of the 1960 Criminal Code of Ghana. However, this right is consistently been abused by the police and other security agencies notably the Bureau of National Investigations (BNI).

Bail is the release of an arrested person on the condition that the person would appear before the court when required at a future date and that they would abide by any restrictions imposed upon them. Article 14 (2) of the 1992 constitution provides that “a person who is arrested, restricted and detained shall be informed immediately in a language he understands of the reason for his arrest ,restriction and detention and of his right to a lawyer of his choice”. Article 14(3) provides that *“a person arrested, restricted or detained shall be brought before a court within forty-eight (48) hours after the arrest, restriction and detention”* In furtherance, Article 14(4) provides that* “where a person arrested, restricted and detained is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial”. *The police and other security agencies constantly violate these provisions of the 1992 Constitution. It is a fact in Ghana that suspects are scarcely taken to court within 48 hours after arrest.

A bail can be obtained through the Courts or the Police known as Police enquiry bail. The police and the courts can also grant self recognizance bail to suspects. A self recognizance bail is normally granted to persons considered prominent in society namely; Chiefs, Members of Parliament etc, and in situations where a suspect has been charged with a minor offence.

The granting of court bail is done at the discretion of the courts subject to the Criminal Procedure Code. However, for some offences bail cannot be granted by the courts. Section 96 (7) of the Criminal Procedure Code states that “a court shall refuse to grant bail in a case of treason, murder, subversion, robbery, hijacking, piracy, rape and defilement or escape from unlawful custody”. The court would refuse to grant bail if it is satisfied that the defendant:

- Would not appear to stand trial; or - May interfere with any witness or evidence or in any way hamper police investigations; or - May commit a further offence when on bail; or - Is charged with an offence punishable by imprisonment exceeding six months and which was allegedly committed whilst on bail.

A person may appeal to the High Court or a Circuit Court where the conditions of the bail appear excessive or harsh.

The granting of a police enquiry bail is done at the discretion of the police subject to the Criminal Procedure Code. A police enquiry bail is granted to an accused person within 48 hours after arrest to enable the police conduct further investigations into a case for prosecution or otherwise. A suspect must be granted a police enquiry bail and subsequently made to produce a surety before his or her release from police custody and not vice-versa. Some police investigators request suspects to produce sureties before they are granted bail which is not right. Furthermore, bail whether granted by the court or the police is free. The practice by some police officers to demand money from suspects before granting them bail is not right.

A surety is a person who promises to ensure that an accused person goes to court on time and on the right dates for trial and report at the police station when needed. A surety is liable for the bail bond which is normally monetary. There are no restrictions on who can act as a surety. Article 17(2) states that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status”. Therefore to prohibit for instance, a woman from standing as a surety is unlawful and contrary to the constitution.

In recent times, the arrest of DSP Gifty Mawueyega-Tehoda by the BNI for alleged crimes committed in the “cocaine -turned -baking soda” saga reiterate the earlier point made that the right to bail by suspects is constantly abused by the police and other security agencies. The BNI failed to follow the right procedure. Knowing the law and knowing they would keep her for that long, the right thing for them to have done was to arraign her before court within 48 hours after arrest for her to be formally charged and remanded. It must be noted that the BNI refused to release or arraign her before court until her lawyer filed a habeas corpus at the Human Rights Court after twelve days in detention. A bail application was subsequently made at the court by her lawyer and she was granted bail with two sureties in a sum of GH ¢50, 000.

In a democratic country like ours, the police and other security agencies especially the BNI must respect the rights of suspects to bail and all other rights of suspects whilst in their custody. The law must be allowed to work and the 1992 Constitution must be allowed to reign supreme.

*A surety is someone who agrees to take responsibility for a suspect who has been granted bail either by the police or the courts. A surety makes sure the accused person comes to court on time and on the right dates and also ensures that the accused person obeys all the bail conditions. A surety agrees to pay a specified amount of money if the accused person fails to obey the court order.*

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*LEGAL AID*

Article 19(1) of the 1992 constitution states that “a person charged with a criminal Offence shall be given a fair hearing within a reasonable time by the court”. Legal Aid is free help consisting of representation by a Lawyer and including assistance in preliminary or incidental matters to any proceedings in a court or tribunal. Also arriving at, or giving effect to a compromise to avoid proceedings or to bring an end to any proceedings. Article 19(1.e) of the constitution states that, a person who is arrested, after being taken to a Police Station and whilst in custody, should be given reasonable facilities for obtaining legal advice and this includes the right to legal aid. It can be given to those who can prove that, they do not have financial means to obtain legal services. A person is entitled to legal aid, if he has reasonable grounds for taking, defending, prosecuting or being a party to the proceedings. A person shall also be entitled to legal aid if:

· He earns the Government minimum wage or below and desire legal representation in any criminal matter or civil matter relating to Landlord and tenant, insurance, inheritance, maintenance of children and other civil matters prescribed by Parliament, or

· If in the opinion of the Legal Aid Scheme, a person requires legal aid then it must be given to him.

A person applying for legal aid is required to complete an application form set by the Legal Aid Scheme and then the selection committee shall review their position. Under the Courts (Amendment) Act 2002, the Supreme Court, the Court of Appeal, the High Court or a Regional Tribunal may assign a Lawyer by way of legal aid and may do so with prior approval of the Chief Justice. An applicant whose application is disapproved by the Selection Committee has the option of bringing an appeal before the Regional Committee. If the applicant is not satisfied with decision of the Regional Committee, he may appeal to the Legal Aid Scheme. Legal aid once granted cannot be withdrawn. Where civil action is taken by the applicant is successful and an award is made in favour of the applicant, the Legal Aid Scheme may recover from the applicant expenses incurred on behalf of the applicant.