The Evil Lurking in The Shadow Of Martin Kpebu No .2 And The Struggle For Power

The Evil Lurking in The Shadow Of Martin Kpebu No .2 And The Struggle For Power


John Salmond wrote on liberty: “legal liberties are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone.”[1]

We say a man is born free. This idea is one of the fundamental grounds of all deductive reasoning for the claim of right to freedom. Before a duty is imposed on a person, there ought to be a justification in Law or in the Law. It is for this reason that the constitution provides, among others, under article 14 (1), the following grounds on which to curtail a person’s liberty. It states that a person’s freedom is justifiably curtailed if;

1)   The person is convicted and sentenced

2) The person is to be punished for contempt of court

3)   Upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.

This is to show that before a person’s freedom is curtailed, there must be a source of authority grounding such curtailment other than that such an act is a mere exercise of power without authority of law. Now we shall quote in extenso the following provisions of the 1992 Constitution that will stand as the heart of our analysis to show some circumstances under which a person’s liberty could be curtailed.

ARTICLE 14 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law.

 ARTICLE 14(3) A person who is arrested, restricted or detained –

(a) for the purpose of bringing him before a court in execution of

an order of a court; or

(b) 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 forty-eight hours after the arrest, restriction or detention.

 ARTICLE 14(4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

 Article 19 (2c) A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.

SECTION 96(7) of Act 30(A statutory provision) A court shall refuse to grant bail—

(a)  in a case of treason, subversion, murder, robbery, hijacking, piracy, rape and defilement or escape from lawful custody; or [As amended by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633), s. (7)].

(b) where a person is being held for extradition to a foreign country.

Professor L. Tyler Amanda writing on the history of Habeas Corpus[2] noted that the writ of habeas corpus was a common law power exercised by the Kings Bench on behalf of the King and as a result, the writ could not be used to challenge the King when the King himself detains any of his subject without trial. Parliament of England passed the Habeas Corpus Act, which empowered the courts to order the subjects of the King detained without trial by the king himself. This was a form of restraint on executive detention without trial. Such an order was to demand the justification of such detention without trial. The usurpation of the King’s power through legislation on whose behalf the writ of habeas corpus used to be granted at the common law did not go without a challenge from the King (Executive), Professor Amanda, however, noted that the Act came with its complications for the Act could be suspended depending on the suspected crime committed by the subject. Some of such crimes were high treason and treason. Individuals could be detained for years without trial and without criminal charges preferred against them on the suspension of the Act. She again noted that Parliament made an effort to regulate the suspension clause in the Act to protect the liberty of the subjects.

This paper cannot exhaust all the history on habeas corpus as outstandingly presented by Professor Amanda. However, the relationship we seek to make is that the idea of bail has in history, been a device for protecting personal liberty by seeking the release of a prisoner if an accused is charged with an offence or cautioned either before or during trial and in the extreme cases, after trial.

It is the right of every person to know his crime as alleged against him or her and be given the opportunity to make a full answer and defence to the allegations upon the establishment of prima facie case made against him or her by the State. The judiciary could grant bail when an accused is charged with an offence and brought before the court for trial. One technique was for the State to avoid preferring charges and a trial to deprive a person of his right to seek bail. We have once in history witnessed this event through the passing of the Preventive Detention Act and its application in Re-Akoto[3] and how habeas corpus was employed to secure the release of the prisoners in question.

The right to be tried within a reasonable time is an anchor on which we could demand all other consequential rights. It is the basis on which every criminal jurisprudence finds its feet before making any other peripheral bargains a criminal justice system could ever possess. It is the trunk or the stem of a cherry blossom. We state that our courts and our legal system have placed an essential premium on the said right under article 14(4) which is the right to be tried within a reasonable time.

In Ghana, whether or not parliament has the power to declare certain offenses as non-bailable or whether parliament has the power to disable the judiciary from considering an accused person for bail regarding certain offenses was raised subtly in a different form with Gorman v Republic[4] when the accused in his appeal to the Supreme Court among his grounds of appeal particularly ground (iii) argued that “The Court of Appeal erred in its interpretation of the applicable provisions of the Criminal Code 1960 (Act 30) as against the relevant provisions of the Constitution 1992 the Republic of Ghana on the grant of bail to accused persons, the reasons being that it downplayed the constitutional provisions providing for the pre-trial release of an accused person on bail in favour of the guiding (not mandatory) principles governing the grant of bail as contained in section 96 of Act 30.”(Emphasis mine)

The essence of the Appellants argument in that case among others was that, section 96(7) of Act 30 when read together with Article 19 (2) (c) (on the presumption of innocence) of the Constitution, the proper interpretation and conclusion that follows from it was not to render the said section mandatory but a guide on matters of bail application. Hence, the Court of Appeal was wrong in law when it held the view that section 96(7) was mandatory such that bail could not be considered when accused persons are charged with offenses that fall under the said section.

The Supreme Court, foremost, held article in 14 (4) (on the right to be tried within a reasonable time) to be a kind of right which upon violation, entitles every person to be granted bail notwithstanding the nature and severity of the offence involved. This view made Section 96 (7) of Act 30 inapplicable and suspended whenever there is a breach of article 14(4), which is a detention without trial or unreasonable delay during trial. It further held that matters falling outside article 14(4) given article 14(1), 14(3) and to some extent Article 19 (2) (c), of the 1992 Constitution, to have created a rebuttable constitutional presumption of grant of bail in favour of every person but such a rebuttable presumption, is rebutted where a statute specifically disallows bail based on the nature of the offense. The court delivered herself in the following words:

“The constitutional duty of the Court under article 14(4) of the Constitution, to grant bail to the accused if he is not tried within a reasonable time, is applicable irrespective of the nature of the accusation or the severity of the punishment.”

The court again stated: “The said constitutional presumption of grant of bail is rebuttable; and it is in fact rebutted by a statutory provision that expressly disallows bail, such as the circumstances outlined in section 96(7) of the Criminal Procedure Code”.

With the greatest of respect, it is submitted that the Court in Gorman’s case did not wholly appreciate the import of the issues before it. The actual issue for the court, in my respectful opinion, was whether or not the proper reading and interpretation of section 96 (7) of Act 30 together with Article 19 (2) (c) could render section 96 (7) mandatory? In my humble opinion, the Court in Gorman could have interpreted section 96 (7) of Act 30 more liberally by reading the word “Shall” to mean “May” bearing in mind the import of Article 19 (2) (c) and the spirit of the Constitution provided it had approached the matter the way we have attempted to.

In Martin Kpebo no.2 v the Attorney General[5], the plaintiff sought a single relief from the Court, namely: A declaration that section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Act 2002, (Act 633) contravenes Articles 15 (2) and 19 (2) (c) of the 1992 Constitution and is therefore null, void and of no effect. The birth of this case boldly raised the constitutional issues created by section 96 (7) of Act 30 and the implication on our criminal jurisprudence.

The Martin Kpebu no.2 Court with all of its force endeavoured to distinguish and defend the Gorman case in the interest of precedence, however, in my respectful view, the matter was beyond defensible and the Martin Kpebo no.2 Court had to tussle to defend its stand that the Gorman case never decided that statute can rebut the presumption of innocence on matters of bail falling outside article 14 (4). To support that defence, the Court relied on a passage from the Gorman case and we state it as follows:

“I am here referring to what the court [The Gorman court] said at pages 801-802, namely: Thus, even in the case of offences mentioned in section 96(7) of the Criminal Procedure Code, bail must be granted if there is no trial within a reasonable time. Justice Brobbey, in his Practice & Procedure in the Trial Courts & Tribunals (Vol 1, 2000 p. 466), writes: ‘Since the Constitution is the fundamental law of the land, to the extent that article 14(3) and (4) mandate bail for all offences while Act 30, s 96(7) excepts the grant of bail in murder cases, etc, the latter is deemed to have been repealed by the former by reason of the inconsistency. This was the view taken in Dogbey v. The Republic (1976) 2 GLR 82 and Brefor v. The Republic (1980) GLR 679.There is no doubt that the latter view backed by the two cases is more accurate.’ This court is in entire agreement with Justice Brobbey’s opinion”

In my respectful opinion, this statement of the Gorman case was to support the proposition that upon violation of article 14(4) not even section 96(7) of Act 30 could stand in the way of the Court to grant bail to all affected persons in respect of a breach of that particular provision of the constitution. Yet, the Gorman Court was quick to state that such a proposition does not extend to matters of bail falling outside article 14 (4) as those matters already stand as rebuttable presumption in favour of every person.

The Gorman court stated as follows on the above point; “This Court is in entire agreement with Justice Brobbey’s opinion. However, this viewpoint leaves untouched the problem of bail in those other situations where a trial is commenced within a reasonable time.” (Emphasis mine)

To bring the point home we repeat a passage in the Gorman case “The said constitutional presumption of grant of bail is rebuttable; and it is in fact rebutted by a statutory provision that expressly disallows bail, such as the circumstances outlined in section 96(7) of the Criminal Procedure Code”.

Be that as it may, the Martin Kpebu no.2 reasoned differently by holding that the discretion to grant or not to grant bail is best exercised by the judiciary in policing such process rather than parliament deciding the matter beforehand for the judiciary. Now, the decision to grant bail would be a mixture of question of law and facts which is well within the court’s competence for which reason the court’s free hand to operate and determine the matter on a case-by-case basis ought not to be fettered by the legislature. The judiciary, being the custodian and defender of all liberties under the Constitution by necessity should be able to decide matters of bail for herself.

This conclusion rendered section 96 (7) of Act 30 impotent regarding its mandatory character on the judiciary, contrary to what was held by Gorman’s case. We may say that in Ghana, the Judiciary and not any other branch of government, is the final solitary determinant of conditions and circumstances warranting the grant of bail. The Court provided the policy reason for such a decision in the following words;

“The danger posed by this law, that is, s. 96(7) of Act 30, is that it sets no time frame in which the investigations should end; it sets no time frame within which the provision should cease to apply whether or not investigations have been concluded; it sets no specific conditions in which they are to apply. It means therefore that if the prosecution prefers any of these charges against another person, whether the facts support the charge or not, the court’s only duty is to put you away because the law says so. It is a sure recipe for abuse of executive power to stultify all the provisions on personal liberty enshrined in the Constitution. It is necessary to state that the issue [of] whether to deprive a person of his personal liberty under Article 14 of the Constitution is not a magisterial or executive act, but a judicial one.”

We underline that it would be mistaken to assume that the decision in Martin Kpebo no.2 renders every offense bailable. The truth seems to be that the Judiciary wrestled the legislature for unfettered power to decide for itself when to grant or not to grant bail and nowhere in that decision did the majority hold that every offense is bailable. The court may also have contributed to the said confusion on the use of the technical legal term “Right” when they mean to say “Power”. In my humble view, either the court expressly did not want to be seen as taking the power from parliament in regulating the circumstances that justify the grant of bail or it did not advert its mind to the possible confusion of the legal terminology considering Hohfeldian Analysis of Rights.

What then is the evil lurking behind Martin Kpebu No.2?

While the court was only faced with section 96 (7) of Act 30[6] in Martin Kpebo no.2, section 96(5)(d) of the same Act which was never brought to the court’s attention, likewise poses the same danger or threat the court expressed in its judgment. The section states as follows:

“a court shall refuse to grant bail if it is satisfied that the defendant is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed while the defendant was on bail”.

When a person is charged with any other offense for which punishment exceeds six months while that person was on bail, the accused person’s right to bail is involuntarily extinguished, and not even the court can stretch its hand to save such an accused person. The reading of the section is mandatory so far as the condition precedents occur and the condition precedents are as follows;

  • The accused is charged with an offence,
  • The offence is punishable by imprisonment exceeding six months
  • The offence is alleged to have been committed while the accused was on bail.

Upon satisfaction that these events mentioned above have occurred, a Court shall refuse to grant bail.

It is conceivable that where an accused is granted bail and it causes the displeasure of the prosecutor or the complainant, all that is necessary is to prefer another charge that draws a punishment of over six months to restrain the hands of the courts.

It is submitted that a careful reading of the Martin Kpebu no. 2 case impliedly repeals section 96(5)(d) though the said provision was never brought to the court’s attention. Further, when the ruling abhors any form of legislation that purports to curtail the hands of the judiciary from policing the grant of bail.

Section 96(5)(d) must be deemed as repealed by the decision of Martin Kpebu no.2. In Mensima v Attorney General[7], The plaintiff contended that the compulsion for all members to join an association before a license would be granted for manufacturing Akpeteshie (a local Gin) was inconsistent with specifically, article 21(1)(e) of the Constitution which guarantees freedom of association. The Attorney General contended that the said regulation was an existing law within the meaning of Article 11(5) of the Constitution and since it has not been specifically repealed, the plaintiff must comply with it. The Supreme Court, through Acquah JSC, stated as follows; “The fact that the alleged law has not been specifically repealed is totally immaterial and affords no validity to that law. For article 1(2) contains a built-in repealing mechanism that automatically comes into play whenever it is found that a law is inconsistent with the constitution”

On the above authority, it is submitted that section 96(5)(d) is repealed but for us to avoid uncertainty, and also not knowing when this ghost could be armed with any technical judicial missile by any Court through interpretation, it is urged that the court should take the occasion anytime it presents itself to declare unequivocally section 96 (5) (d) as unconstitutional and properly nail the coffin to avert its evil from looking in our faces from its coffin. The other similar provisions under section 96 (5) (a)-(C) of Act 30 seem to be mandatory and attempt to curb the court’s power in granting bail when those circumstances arise, nevertheless, those conditions are in tandem with common sense and public interest as no court ought to be willing to set an accused free when it is satisfied that the accused would not appear to stand trial or commit a further offence. In the alternative, in the event of any review of Act 30, we recommended that section 96 (5) (d) be struck out of our law books.

[1] John Salmond, Legal Right. in Adelaide (ed), Jurisprudence or The Theory of The Law (Stevens k Haynes 1902) 231

[2] L. Tyler Amanda, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017)

[3] [1961] GLR 523

[4] [2003-2004] 2 SCGLR 784

[5] [2015-2016] 1 SCGLR

[6] Criminal and other offences (Procedure) Act 1960

[7] [1996-97] SCGLR 676

Williams Agyei is the head of Trade and Commerce at Misyl Energy. He obtained his 1st degree in Business Administration and post first degree in Law all from the University of Professional Studies. He is currently at the University Of Ghana Legon, pursuing his LLM program in ADR.

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