Can police detain someone for default in loan repayment?
Dear Mirror Lawyer, My brother was arrested yesterday by the police and detained.
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When I went to the police station, the case officer handling the matter informed me that my brother owes his business partner by name Kojo, an amount of GH₵10,000 given to my brother as a loan to cushion his business.
According to the police, who I am sure have been bribed by Kojo, my brother has refused to pay Kojo his money, hence the arrest. My brother in his defence says that the money along with his business capital was lodged in his bank account held at the erstwhile GT Bank and which he has since been trying his best to retrieve but to no avail. Kojo has been a longtime family friend since the 80’s when we all lived at Fante New Town.
I was shocked and utterly disgusted that Kojo could cause the arrest of my brother who is like a son to him. Lawyer, is that how to treat a son? The police have not done anything about the matter since the arrest and have kept my brother in cells for over five days now without processing him for court. We were allowed to take some food to him but that has been the extent to the help offered by the police in this matter.
Is the police right in detaining my brother since last Thursday?
Alfred, Accra
Dear Alfred, I understand these are trying times for your family and I sympathise with you. The Ghana Police Service (GPS) as provided for by Article 190 of the Constitution was set up as a service to prevent and detect crime, apprehend offenders, and maintain public order and the safety of persons and property.
Despite so many challenges, the GPS is doing a great job and they deserve recommendation. However it is not within the ambit of the police to arrest someone for a default in the repayment of a loan simply because it is not a crime under our laws. The police do not have the mandate within our laws to be debt collectors.
Therefore, it was contrary to the law that the police should have arrested your brother in such a situation as you have described. As you indicated above, the police have held your brother for up to five days and have not brought him before a court for hearing.
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Our Constitution is clear that a person who is arrested, restricted or detained for the purpose of bringing him before a court in execution of an order of a court or upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana and who is not released shall be brought before a court within 48 hours after the arrest, restriction or detention.
It is for this reason that the Supreme Court ruled in Martin Kpebu v Attorney-General [December 18, 2019] that some courts must sit on weekends and public holidays and even during strike actions to protect the liberty of individuals.
The police cannot hold any person for more than a period of 48 hours without bringing the person before a court regardless of the observance of any holiday or weekends that passed after the arrest, restriction or detention of the person.
Further, the Supreme Court has also ruled in Cofie v Hermans v [1997] that the police are not debt collectors so they have no power to arrest a debtor on a complaint by a creditor in a civil case and hold that person in custody until the debt is paid.
Thus the actions so far taken by the police is unconstitutional, illegal and a blatant breach of the constitutional rights of your brother.