In last week’s article, we delved into the issue of bail, which has catapulted itself to the front burner of current criminal justice issues in the country.
The topic has become too vexed so that it should, as a matter of national urgency, be at the forefront of the issues that urgently need attention and greater focus in the ‘Reset’ agenda of the government.
I outlined the standards which need to be considered when courts fix bail (genuine risk of the accused absconding, interfering with witnesses, their family ties, previous compliance with court orders, their financial means).
Courts should also consider whether alternatives to bail can be given, for example, less restrictive measures—such as reporting requirements, travel restrictions, surrender of passports or periodic appearances before investigators.
The main reason for bail is to ensure the accused appears for trial and is not tempted to abscond, not that bail becomes so onerous that detention is the only alternative.
Bail
The issue of bail affects rich and poor, young and old, famous or unknown, but undoubtedly, the arrest and prosecution of leading members of the New Patriotic Party (NPP) and/or politically exposed personalities has reignited the debate as to whether bail is being used to silence or punish political opponents or errant/dissenting political opinion.
In law, this should never be the case: the Criminal and Other Offences Act (Article 30) clearly and unambiguously states that bail should not be a punishment or excessive.
However, there is a growing perception gaining ground in the country that we are slowly but surely heading in that direction.
Given the human rights rhetoric of this government when in opposition, it is the fervent hope and wish of yours truly that they do everything in their power to disabuse Ghanaians of that view.
This is extremely important because criminal justice systems and, by extension, bail issues must, of necessity, be human rights compliant to ensure fairness, prevent state abuse and, above all, maintain public trust.
Key reasons include protecting the innocent, upholding the rule of law, and guaranteeing fair treatment. Human rights rules prevent governments from embarking on actions that can severely restrict personal freedom.
Rights compliance helps ensure everyone gets equal protection under the law.
Human rights law ensures true justice and safety.
For example, the presumption of innocence and the right to a fair trial are all components of a vast array of rights geared towards an equitable society where the rule of law prevails. In doing so, it builds public trust, thereby nipping in the bud violent ‘self-help justice’.
When law breaks down, the consequences for societies can be dire. Recent occurrences, where people have resorted to mob action and lynching, are manifestations of what can go wrong when people lose confidence in the system.
Reset
The ‘Reset’ agenda in the human rights and criminal justice sphere should respect human dignity and focus on fixing the root causes of deviant behaviour.
International human rights jurisprudence has long rejected the notion that wealth should determine liberty. Bail must never become a financial test that only the rich can satisfy or an impossible hurdle designed to prolong detention without judicial conviction.
The objective of bail is singular: securing attendance at trial. It is not punishment. It is not retribution. It is not public relations. It is not an instrument of political signalling.
Whenever bail conditions exceed what is reasonably necessary to ensure attendance, they cease to be constitutional safeguards and become arbitrary restrictions on liberty.
There is much room for reform. The Judicial Council should consider comprehensive bail guidelines requiring courts to give detailed reasons for unusually restrictive bail conditions.
Prosecutors seeking exceptionally high bail should bear the burden of demonstrating, with evidence rather than speculation, why ordinary conditions would be inadequate. Greater use should also be made of non-financial conditions, including reporting obligations, restrictions on foreign travel and electronic monitoring as technology develops.
All these suggestions will lead to a better means of ensuring accused persons appear for trial.
Strength
Ultimately, the strength of Ghana's democracy will not be measured by how aggressively it prosecutes corruption but by whether it can do so without sacrificing constitutional freedoms. As the old legal maxim reminds us, hard cases make bad law.
Public anger, political rivalry and allegations of corruption must never become reasons to dilute principles painstakingly developed over centuries of constitutional government.
Reasonable bail is not a concession to suspects.
It is a safeguard against arbitrary power.
The writer is a lawyer. E-mail:
