When freedom has price: Constitutional, human rights costs of excessive bail conditions
In recent months, headlines across Ghana have been dominated by one recurring story — accused persons languishing on remand because they cannot meet bail conditions, particularly those requiring justification with landed property.
This situation, though often overlooked, raises grave constitutional and human rights concerns that strike at the heart of Ghana’s democratic and justice system.
The 1992 Constitution of Ghana guarantees every person the right to liberty and the presumption of innocence until proven guilty. Article 14(1) provides that no person shall be deprived of his liberty except in accordance with due process of law.
Further, Article 19(2)(c) ensures that an accused person is presumed innocent until proven guilty.
Yet, in practice, these rights are often hollow when bail — which is supposed to secure one’s temporary freedom pending trial — becomes a privilege available only to the wealthy or well-connected.
Standard
Many magistrates and judges continue to impose heavy bail sums, sometimes running into hundreds of thousands of Ghana cedis, with justification by landed property.
For an average Ghanaian, this is an impossible standard.
Ghana’s Statistical Service data shows that only a minority of citizens own registered land or houses in their own names.
Consequently, many accused persons — even for minor or bailable offences — are left in custody for months or years while their cases drag through the courts.
The courts’ insistence on landed property as surety effectively discriminates against the poor, violating Article 17 of the Constitution, which prohibits inequality before the law.
The law was never meant to punish poverty, but that is what happens when bail becomes a financial trap.
The International Covenant on Civil and Political Rights (ICCPR), to which Ghana is a party, affirms in Article 9(3) that "It shall not be the general rule that persons awaiting trial shall be detained in custody."
Similarly, the African Charter on Human and Peoples’ Rights guarantees the right to liberty and fair trial, urging member states to ensure that pre-trial detention is the exception, not the norm.
Ghana’s current bail practices, therefore, conflict with both domestic and international legal commitments.
Right
In Martin Kpebu v. Attorney-General, the Supreme Court reaffirmed that bail is a constitutional right, not a discretionary favour.
The Court warned against excessive conditions that undermine the very purpose of bail — ensuring the accused’s attendance at trial without unjustly depriving liberty. Yet, the gulf between principle and practice remains wide.
The social consequences are equally troubling. Overcrowded remand facilities, mental health deterioration, job losses, and the breakdown of family structures are common outcomes for those who cannot meet bail.
Innocent persons may end up spending more time on remand than they would have served if convicted.
This undermines confidence in the justice system and offends the spirit of human dignity enshrined in Article 15 of the Constitution.
The operation of the justification of landed property in bail decisions brings into sharp focus the notion of the real meaning of equality before the law. It is at the root of modern legalism and underpins most modern constitutions.
The mother of all modern human rights treaties, the Universal Declaration of Human Rights, has it at its core.
Equality before the law, therefore, is a significant and crucial element in the arsenal of human rights promotion.
Sanctity
It is, therefore, important that nothing negative is allowed to come in the way of the sanctity of the equality provision in the Constitution, whether perceived or real.
The reality of bail adjudication in recent times, especially in cases involving politicians or politically exposed personalities, is that in the majority of cases, the accused persons are given self-recognisance bail or they are able to provide the justification by way of landed property.
The same cannot be said for the vast majority of ordinary persons.
In the event, most ordinary persons wallow in jail when the bail conditions handed down to them by courts have a justification by landed property aspect to it.
It is time for a reform of Ghana’s bail system.
The Judicial Service of Ghana, the Attorney-General’s Department, and Parliament must work together to standardise bail procedures and emphasise non-monetary conditions — such as self-recognisance, reporting obligations, or community ties — especially for minor offences.
Judicial training and oversight are also needed to ensure that bail decisions align with constitutional and human rights standards.
Justice should never be for sale, nor should liberty be the preserve of those with land titles.
Ghana’s democracy demands a justice system that upholds fairness and equality before the law — not one that punishes poverty in the name of bail.
The writer is a lawyer.
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