48-hour detention: Courts must sit on weekends, public holidays – Supreme Court rules

Counting the 48 hours for detaining suspects will now include weekends and holidays, the Supreme Court has ordered in a landmark ruling.

To operationalise the order, which is in line with the spirit of Article 14(3) of the 1992 Constitution, the court also ordered the Chief Justice to, within six months, designate a court in each metropolis, municipality and district to sit on public holidays, weekends and periods of strikes and civil unrest to hear cases pertaining to the personal liberty of persons arrested or accused of committing criminal offences.

It said such additional courts would effectively activate the provisions of Article 14 (3) of the Constitution that require that persons arrested, detained or restricted by the police are to, within 48 hours, be put before court to determine the validity of their incarceration and to enable them to apply for bail.

Court services must be available

“The expression ‘within 48 hours’ in Article 14 (3) of the Constitution includes all days — public holidays, weekends, strike actions and civil unrests, subject to the reasonable assurance of the safety and security of court judges and judicial staff,” Justice Akuffo pronounced the landmark ruling in her valedictory judgment at the Supreme Court in Accra yesterday.

The Supreme Court further held that “Court services must be available to determine issues pertaining to personal liberty, in due compliance with Article 14(3) of the Constitution, and accordingly the necessary arrangements must be put in place for the effective operationalisation of those constitutional provisions.”

Article 14(3) provides 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.

Unanimous ruling

In a unanimous ruling by a seven-member panel, chaired by the Chief Justice, Mrs Justice Sophia Akuffo, the court ruled that “During periods of legal or illegal strike actions which affect the normal operations of the court, the Chief Justice must put in place measures to determine issues pertaining to personal liberty and such proceedings could be held in the chambers or residences of judges or magistrate, as may be necessary under such circumstance.”

The other members of the panel were Justice Julius Ansah, Justice Anin Yeboah, Justice Baffoe-Bonnie, Justice Sule Gbadegbe, Justice Anthony A. Benin and Professor Justice Ashie Kotey.

Suit

The ruling by the Supreme Court followed a writ filed at the apex court on September 6, 2016 in which a private legal practitioner, Mr Martin Kpebu, sued the Minister of Justice and Attorney-General (A-G) and prayed the court to declare as unconstitutional portions of the Public Holidays Act (Act 601) and Labour Act that bar the courts from dealing with cases affecting the personal liberty of accused persons and suspects of criminal offences within 48 hours.

Reliefs

The defendant had sought eight reliefs from the court, including a declaration that on a true and proper interpretation of Article 14 Clause Three of the Constitution, a Saturday, a Sunday, a public holiday, anytime during a civil unrest and any other day that the courts in Ghana could not sit (e.g. during a strike by Judicial Service staff or any other stakeholder that would prevent the court from sitting) would be counted in reckoning the 48 hours within which a person arrested or detained on suspicion of committing a crime and not released must be brought before a court under Article 14 (3).

He sought a declaration that on a true and proper interpretation of Article 14(3) of the Constitution, Section Four of the Public Holidays Act, 2001 (Act 601) is inconsistent with Article 14 (3) and is void to the extent of that inconsistency only.

“A declaration that the Government of Ghana is in breach of Article 14(3) of the Constitution for not taking steps to ensure that some courts are opened on Saturdays, Sundays and public holidays for arrestees whose 48 hours of incarceration expire on the aforementioned days to be brought to court for the court to determine the validity of their incarceration and to enable the arrestee to apply for bail,” the writ said.

It also sought a declaration that, on a true and proper interpretation of Article 14(3) of the Constitution, certain courts must be made to sit on Saturdays, Sundays or any other day that the courts are ordinarily unable to sit due to strikes, civil unrest and other circumstances not contemplated, in order for the court to hear applications for bail.

Mr Kpebu further sought a declaration that where a court is scheduled to sit on or seized with a criminal matter concerning an arrestee, pursuant to Article 14 (3) of the Constitution, but is unable to sit in open court under circumstances of strike or civil unrest, an arrestee in custody has a right to apply to a judge who has jurisdiction to hear that kind of case for bail or for his release, depending on the classification of the offence.

“The application may be made in chambers or any other place the judge may be found and should not be subject to filing a motion in the court, but the motion may be filed with the judge,” the application sought.

Orders

Giving the ruling, the Chief Justice further ordered the Inspector General of Police (IGP) to, within six months, ensure that police prosecutors and investigators duly operationalised Article 14 (3).

She said under no circumstance should the conduct of investigations into the case of an accused or a suspect serve as a legitimate justification of failure to bring that person before a court within 48 hours of arrest or detention.

“The fact is that a person arrested or detained must be brought before court as soon as the minimum paperwork necessary for bringing that person before a court under Article 14(3) is completed, without the need to wait for the exhaustion of the 48 hours,” the court upheld.

Overriding

The Chief Justice explained that the constitutional expectation was that a person must not be deprived of his personal liberty for more than 48 hours, unless such a person had been brought before a magistrate court, charged and the issue of his personal liberty determined.

“The interest being protected under Article 14 (3) of the Constitution must override all other considerations,” she ordered.

Obligation of MMDAs

According to Justice Akuffo, it was for a very good reason that the Constitution required that at least one district court be established in each district of Ghana.

She, however, said to ensure the effective performance of the courts, district court magistrates must be resident in the districts to allow them to be constantly available for court hearings.

“This requires district assemblies to comply strictly with their statutory obligations to provide court houses and residences for judges and magistrates throughout Ghana for 

the assurance of access to justice for all categories of Ghanaians, wherever they may be arrested or restrained by the police,” Justice Akuffo stated.

Charge to police

The Chief Justice, who retires tomorrow, indicated that it was also essential that every unit of the Ghana Police Service be aware of the need to comply with the spirit of Article 14(3), which empowers the police to release an arrested person on suspicion of committing a criminal offence.

“Having arrested such a person, there is nothing that compels the police to hold on that person, and especially when he or she has not been brought before a court within 48 hours, he or she ought to be released,” she said.

Questioning the basis for the police to arrest accused persons or suspects on Thursday evening or Good Friday and hold them until Tuesday after Easter Monday, the Chief Justice said there could be no justification for such a long detention.

“The police have the power and ought to release the person on whatever reasonable conditions and require him to report himself daily to the unit and appear in court on the first working day or any such other day as they will determine,” she said.

Good ruling

Reacting to the ruling, Mr Kpebu described the verdict of the Supreme Court for courts to sit on public holidays, weekends, and during strike actions and civil strife as “good ruling.”

“The court was mindful of the interest of the state in carrying on with investigations. So what the court is saying is that the police must bring the suspect before the court.

“The power to determine whether someone has to be in custody or outside belongs to the judge and not for the police,” he stated, citing Nigeria as one neighbouring country where accused and suspects were put before the court within 24 hours.