To bail or to jail?
Warm greetings to everyone, especially to our Muslim brothers and sisters, and thank you for a nice Eid holiday.
It has been a wonderful period of feasting and recuperation.
The freedom which we all enjoyed during the holiday is in sharp contrast to the appalling manner in which the police are toying with a constitutional guarantee of freedom ― the right to liberty, to be precise.
In last week’s article, I highlighted the excessive bail conditions militating against the enjoyment of the constitutional right to bail, which safeguards liberty and upholds the constitutional recognition of the hallowed principle of presumption of innocence of accused persons.
Yet, increasingly, what happens after the grant of bail in court tells another story.
A troubling gap, if not a chasm, has emerged between judicial pronouncements and their practical execution, with accused persons bearing the cost in lost time, dignity and above all their freedom.
At the heart of this troubling development lies a growing and unlawful practice by the police: the interference with the execution of bail.
Alarming
It is becoming alarmingly common for courts to grant bail, only for the police to step in and frustrate its execution.
Instead of allowing court registrars ― the legally mandated officers responsible for processing bail ― to do their work, the police often whisk the accused away to the station under various pretexts.
A personal experience last week illustrates the problem starkly. A court granted bail to an accused in the sum of GH¢ 100,000, explicitly stating in open court that the justification was not to be based on landed property.
This meant that the registrar of the court could administratively assess whether the proposed sureties qualified in financial terms to meet the bail conditions, an exercise well within the registrar’s competence.
Yet, the accused person was whisked away to the police station on the pretext of verifying the market value of their properties.
This was wholly unnecessary and contrary to the terms of the court bail.
By the time the police returned, late in the evening, the court had closed and the registrar was comfortably ensconced in the privacy of her home.
The result was that the accused person spent the night in custody ― a traumatic and avoidable deprivation of liberty.
Practice
The practice is not just inconvenient; it is illegal and unconstitutional.
Once bail is granted in court, the role of the police is to comply, not to reinterpret or obstruct.
The execution of bail is an administrative function of the court, not an investigative extension of police authority.
Any interference undermines the authority of the judiciary and violates the fundamental rights of the accused.
Whilst discussing my frustrations with the registrar, another lawyer present told me the problem is widespread.
We are working on a petition to the Inspector General of Police (IGP) regarding another strand of the problem of exercising the constitutional right to liberty of accused persons in the issue of landed property bail conditions.
The insistence of some judges on bail conditions requiring justification with landed property, even in cases involving minor or non-violent offences, is compounding the issue of bail.
This practice has long been criticised by many, yours truly included, for its discriminatory effect.
The consequences are stark as a shadowy economy of ‘bail contractors’ has emerged.
These individuals parade around court premises with land titles ready to offer them for a fee to persons granted bail.
What should be a constitutional right is effectively commodified.
The ethical and legal problem is clear: this distortion of the purpose of bail ― to secure court attendance of accused persons ― becomes a means of enrichment for middlemen.
Constitution
The constitution, following international human rights law, guarantees the right to liberty and presumes innocence until guilt is proven.
Bail is a critical mechanism for giving effect to these principles; any obstruction or delay renders the right illusory.
The need for institutional clarity and accountability cannot be overemphasised.
Police officers need to be reminded and, where necessary, compelled to know the boundaries of their role in the execution of bail.
Judicial officers, too, must exercise greater caution in imposing bail conditions, ensuring that they are reasonable, proportionate and consistent with constitutional dictates.
The execution of bail should be a routine administrative step, not a battleground between state institutions.
Every extra hour an accused person spends in custody due to bureaucratic obstruction is a stain on the justice system.
Bail should mean bail.
Until then, the right to bail will remain, for many, a promise deferred.
The writer is a lawyer.
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