Bail is the process of procuring the release of an accused person from legal custody. In order for bail to be granted, the accused person undertakes that she would be available at such a time and place specified by the bail bond. In an application for bail, two parties may be required. The first is the surety, being the person who gives the undertaking and the second is the principal party being the accused person. The laws governing bail are the 1992 Constitution, the Criminal Procedure Code, 1960 (Act 30) hereinafter referred to as Act 30 and judicial precedents or case law.
The rationale behind bail is based on the need to safeguard the basic rights inherent in the human being. Article 14 of the 1992 Constitution guarantees the liberty of persons (even though this guarantee is not absolute and subject to a number of exceptions). Article 19 provides in subsection 2(c) that an accused person is presumed innocent until proven guilty. Thus, failure to grant bail to an accused person may be deemed pronouncing on the guilt of the accused even before they are tried.
Previously, some offences were considered non-bailable. These were offences provided for in section 96(7) of Act 30 such as treason, subversion, murder, robbery, hijacking, piracy, rape, defilement, escape from lawful custody, or where a person is being held for extradition to a foreign country. However, in Kpebu v Attorney General, the Supreme Court pronounced section 96(7) of Act 30 as inconsistent with the constitutional presumption of innocence.
In Ghana, three types of bail applications are available to an accused person. The first is police enquiry bail which is granted by the police pursuant to their investigation. Thus if the police fail to release the accused, the police are mandated to bring the accused before a court within forty-eight hours after his arrest or detention. The second type is bail pending trial. It is granted at any time during the trial. An oral or written application may be made to the court for consideration or the court could grant it on its own motion. The third type of bail is bail pending appeal. It is worth noting that bail is free and the amount stated in the bail bond may only be enforced when the accused fails to appear to stand trial.
In considering applications for bail, the courts over the years have been guided by the provisions of section 96 of Act 30. This is evident in the cases of Okoe v The Republic, Dogbe v The Republic, Gorman v The Republicamong others.
Section 96(4) of Act 30 instructs the courts not to refuse bail merely as a form of punishment. However, Section 96(5) empowers the court to refuse bail if the court is satisfied that the accused may not appear to stand trial or may interfere with any witness or evidence or hamper the investigations of the police in any way. The court may also refuse bail if the accused is likely to commit a further offence on bail or the offence the accused is charged with was committed whilst on bail and the punishment exceeds six months imprisonment.
In ascertaining whether or not an accused may appear to stand trial, the courts are again guided by the conditions in section 96(6). These are; inter alia the nature of the accusation, the nature of the evidence available, the severity of the punishment if he is subsequently convicted, and if he has breached any previous bail requirement, whether he has a fixed place of abode in Ghana and is gainfully employed and if his sureties are competent enough.
On one hand, certain persons may rejoice at this decision under the erroneous impression that regardless of the alleged offence they would in all circumstances obtain bail. However, this is preposterous and cannot be the right conclusion considering that under Article 12 of the Constitution no right is absolute.
This may be a prudent way to look at it for various reasons. Besides the reasons stated in Article 96, some credible testimonies may be affected by bailed accused persons because the complainants or other witnesses are apprehensive of what the accused might do to them if they testify.
In conclusion, even though bail is a constitutional requirement and all offences are bailable, the discretion to grant or refuse bail still rest with the courts. However, this discretion must be exercised judiciously having regard to provisions in section 96 of Act 30.