Injustice of bail denied
A troubling trend is emerging in Ghana's criminal justice system, particularly in the lower courts.
Increasingly, prosecutors oppose bail with routine, unsubstantiated claims that the accused person may interfere with witnesses, that investigations are ongoing, or that the accused is a flight risk.
Without demanding justification, some courts are accepting these bare assertions and denying bail, leading to prolonged pre-trial detention.
This practice is not only concerning, it strikes at the very heart of constitutional democracy.
It undermines the right to personal liberty and the presumption of innocence, both guaranteed under articles 14 and 19 of the 1992 Constitution.
Even more troubling, it departs from well-established Ghanaian and international human rights jurisprudence that has consistently emphasised that pre-trial detention must be the exception, not the rule.
Fundamental
The right to liberty is one of the most fundamental rights of any constitutional democracy.
Article 14 of Ghana’s Constitution protects individuals from arbitrary detention, while article 19(2) (c) enshrines the presumption of innocence.
These provisions are not ornamental. They are enforceable guarantees meant to ensure that individuals are not punished before they are found guilty.
When courts deny bail based on speculative claims, they effectively impose punishment before trial.
The accused person, presumed innocent in law, is treated as though guilt has already been established.
This undermines the very essence of justice.
International human rights jurisprudence is clear on this point.
Courts have consistently held that detention pending trial must be justified by concrete reasons, not mere allegations.
Claims that an accused person may interfere with witnesses or flee must be supported by evidence.
The burden, which is a high one, lies squarely on the prosecution to demonstrate such risks. Mere assertions are insufficient. Ghana’s own courts have embraced these principles.
The Supreme Court has repeatedly emphasised that bail is a constitutional right and that refusal must be justified.
The courts have also stressed that ongoing investigations alone cannot justify pre-trial detention.
The rationale is simple: investigations can take months or even years. If ongoing investigations were enough to deny a bail, then liberty would become meaningless.
Shift
Yet, the growing practice in some courts suggests a troubling shift. Prosecutors routinely oppose bail with formulaic statements.
Courts, rather than scrutinising these claims, since they are the bastion of protecting individual rights, sometimes accept them at face value.
The result is the normalisation of pre-trial detention.
This is dangerous for several reasons.
First, it erodes the presumption of innocence.
Pre-trial detention often carries a stigma.
Accused persons may lose their jobs, suffer reputational damage and experience emotional and financial hardship.
They are also removed from their loved ones, including dependants and family.
The consequences occur before guilt is established. In effect, the detention becomes punishment without trial, contrary to provisions on bail in our criminal code.
Second, it creates inequality in the justice system. Wealthy accused persons may secure bail more easily, while poor individuals languish in custody.
This undermines fairness and fuels public distrust in the justice system.
Third, and in my estimation a very important point, it encourages investigative complacency.
If prosecutors know that courts will deny bail simply because investigations are ongoing, there is less incentive to conduct prompt and efficient investigations.
The result is prolonged detention without progress in the case.
The Constitution deserves better; it is the supreme law of the state for goodness sake!
Human rights provisions in the Constitution must be interpreted broadly and purposively.
Constitutional rights are not to be read narrowly or restrictively.
Courts are required to adopt interpretations that promote and protect rights, not diminish them.
This principle reflects the unique nature of human rights law. Unlike ordinary legal provisions, human rights provisions are designed to safeguard individuals against the power of the state.
They must therefore be interpreted generously and in favour of liberty.
Courts
Courts must remember that the state possesses vast resources and coercive powers.
The accused, in contrast, is often vulnerable.
The constitution exists precisely to ensure that this imbalance does not result in injustice.
The acceptance of all claims for bail to be denied leads to unchecked power being handed to the prosecution.
The abuse of citizens’ rights becomes institutionalised.
Obviously, crime needs policing and checking but prosecutors should be encouraged to do their job with strict adherence to well-established rules and protocols.
The courts navigate the dangerous and unruly waters in order to prove guilt or declare innocence.
If we are to honour our motto of Freedom and Justice, courts should sit up and sanction prosecutorial tyranny.
The writer is a lawyer.
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