Wednesday, 11 May 2016

Supreme Court Ruling On Non-bailable Offences

Ghana has chalked up another milestone in its criminal justice system when the apex court of the land, the Supreme Court in a five two majority decision, struck out section 96 sub-section 7 of the Criminal Procedure Act, Act 30 of 1960. By the provisions of this Act, the courts shall refuse to grant bail to persons accused of treason, subversion, murder, robbery, hijacking, piracy, rape, defilement and escape from lawful custody. The law was later amended to include persons accused of dealing in narcotics and those being held for extradition to a foreign country. One key principle in the administration of justice is the presumption of innocence, where a person accused of any crime is presumed to be innocent, until proven guilty in a court of competent jurisdiction or when he or she pleads guilty. The concept of some offences being non-bailable is alien to the constitution and a flagrant violation of the fundamental Human Rights of accused persons. Why?

Even when police arrest people in the act of committing crime, they are still presumed innocent and the police are not supposed to keep them in detention for more than 48 hours. Sad to say though that, this law is not always respected. In any case, the courts have the discretionary power to grant or deny bail, safe to add that, that power is not to be exercised capriciously. In fact, under sub-sections three and four, of section 96, Act 30, the amount and conditions of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive or harsh. And the court is barred from withholding or withdrawing bail merely as a punishment. For purposes of clarity, sub section 5 of the same section 96, Act 30, spells out the conditions under which a person may be denied bail. It states among others that, a court shall refuse to grant bail if it is satisfied that the defendant may 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. It is therefore baffling that having made these elaborate provisions, the framers of the law would go to the extent of categorising certain offences as non-bailable. There is no doubt that the refusal to grant bail in those instances has contributed significantly to the overcrowding in the country's prisons, a situation the UN Special Rapporteur had cause to complain about on his last visit to Ghana. The sad aspect is that, it was just enough for someone to accuse you of any of those listed offences, and your liberties will be curtailed, sometimes for countless number of years. There have been regrettable instances where people were on remand during trial, for 10, 15, 20 years, and at the end found not guilty and were acquitted and discharged. What it meant was those people have wasted their productive lives in jail for no offence but simply on a basis of an oppressive and inhumane law. There was also the issue of investigators and State prosecutors unnecessarily delaying trials and further worsening the plight of the accused. The striking out of this law will therefore bring some seriousness and a sense of urgency on the part of those State actors. Such excuses as the docket is missing, the investigator is sick or has been transferred and the likes will be a thing of the past. Ghana prides itself as a model of democracy on the continent. And this must reflect in all spheres of life. You cannot claim to be democratic when you use repressive laws to oppress and suffocate your citizens. There are concerns about the likelihood of people accused of high crimes and granted bail, engaging in acts such as interference in the trial process, absconding or even revenging on people they suspect of letting them out. In the so called bailable offences, when the principal absconds, sometimes it is difficult getting the sureties. This is because there are people who have made themselves professional sureties standing surety in multiple cases and have devised means of outsmarting the police and are able to escape.

In view of the Supreme Court ruling, both the Registrars and investigators must be very vigilant and meticulous to ensure that persons who stand surety for accused persons fully satisfy the bail conditions. Their places of abode and documents presented as form of justification must be thoroughly verified. This is to ensure that when the principal escapes or absconds the surety can be held responsible. In everything, let the nation be guided that a person is not guilty until proven guilty and it is always better to free 99 criminals than to imprison one innocent person. Long live the judiciary, long live Ghana.

BY GEORGE DARLINGTON, A STUDENT OF POLITICS AND HISTORY.

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