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THE LAW ON BAIL IN GHANA; A DEVELOPING JURISPRUDENCE

Source: Ernest Kwadwo Kyere

THE LAW ON BAIL IN GHANA; A DEVELOPING JURISPRUDENCE
MarryRight Ghana

Introduction

Half way through law-school, I kept asking myself how am I really going to make money as a lawyer as most of the things though practical still seemed abstract to me? My legitimate
concern kept bothering me for days till that lecture- the criminal procedure lecture on bail took place.

I remember with vividness and precision the warm look on her face as Mrs. Evelyn Keelson, one of the Republic’s finest prosecutor introduced the topic of bail. Truth be told, not even her
warm and tender smile as she was teaching got me excited about the topic, at least not until she said and I quote verbatim, “you people, should take your study of bail serious because truth is when you come out as ‘fresh lawyers’, it will be your “saving grace.” 

It was after this statement, my interest in the study of bail was piqued. But like all knowledge, the more you know, the more you wish to share. There is no mystery behind bail as it appears to some and I assure you, I do not intend to bore you with the decision of Martin Kpebu v AG nor the guiding factors to the grant or refusal of bail as there have been many writings addressing it. None of these brilliant writings, however, have ever considered the position of accused person who has no favor under Section 96(5) and (6) of the Criminal and Other Offences Act, 1960 (Act 30).

In this article, I aim at providing answers to certain fundamental issues that arises in the granting and refusal of bail. 

  1. what happens to the right to liberty of an accused who falls short of the threshold of Sections 96(5) and (6) but has been in remand for an unreasonable time? Will the accused be denied his constitutional right to liberty on the basis of statute-based guiding factors? 
  2. Is the strict import of Martin Kpebu v. AG and Sections 96(5) and (6) such that once an accused cannot meet the threshold of sections 96(5) and (6), the accused should be refused bail?

 It will be concluded from this article that the court’s discretion in granting bail under the lenses of section 96(5) and (6) should only exist where there has not been an unreasonable delay in bringing accused before the court. Secondly, it will be concluded that in a human right friendly legal system such as Ghana, the guiding factors of section 96(5) and (6) should not be used as grounds to deny an accused his right to bail except in the interest of another or in the interest of the public. This article also aims at providing an escape route for an accused when the prosecution fiercely opposes his/her bail application, presenting supp


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