Remanding Accused Persons in Prison Custody Contradicts the Spirit and Letter of the 1992 Constitution

In a constitutional democracy like Ghana, liberty is the first mark of justice. Yet, behind the high walls of our prisons, hundreds of citizens remain detained — not because they have been found guilty, but simply because their trials have not been concluded. They are called remand prisoners or persons on remand. In reality, however, they live the same life as convicts: the same cells, the same food, the same indignity.

This practice is not only unjust; it is unconstitutional. It offends both the spirit and letter of the 1992 Constitution, which exists to guarantee liberty, dignity, and fairness to every person within Ghana’s borders.

1. The Constitutional Foundation of Liberty

The Constitution begins with an affirmation that the State must respect and uphold the fundamental human rights of all persons. Article 14(1) provides that:

“Every person shall be entitled to his personal liberty and no person shall be deprived of his liberty except in accordance with procedure permitted by law.”

This means that unless a court of competent jurisdiction finds a person guilty, their liberty remains protected. The Constitution further insists in Article 19(2)(c) that:

“A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.”

The principle is simple: the accused is not yet guilty. Therefore, subjecting them to prison conditions meant for punishment violates the very logic of this presumption. The Constitution demands that justice must be fair, humane, and reasonable — not punitive before conviction.

2. The Explicit Prohibition in Article 15(3)

Perhaps the clearest constitutional command on this issue is found in Article 15(3) of the 1992 Constitution, which states:

“A person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons.”

This provision leaves no room for discretion. It is not aspirational — it is mandatory. The framers of the Constitution foresaw that the State could abuse its coercive power and therefore drew a bright red line: no unconvicted person should be treated like a convict.

Yet, across Ghana, in prisons such as Nsawam Medium Security, Kumasi Central, Sunyani, and Sekondi, remand prisoners are locked in the same cells as those who have already been sentenced. They eat from the same bowls, wear the same uniforms, and suffer the same indignities. This is a clear constitutional breach and an affront to human dignity.

3. The Spirit Behind the Letter

The Constitution is not a lifeless document. As the Supreme Court stated in Tuffuor v. Attorney-General [1980] GLR 637,

“The Constitution has its spirit, its intendment and its fundamental purpose.”

That purpose is to ensure justice through fairness and to protect the weak from arbitrary power. The spirit behind Article 15(3) is to remind the State that an accused person remains a citizen entitled to respect, dignity, and due process until proven guilty.

When the State locks an untried person behind prison walls, it presumes guilt where the Constitution presumes innocence. That act alone defeats the moral and legal purpose of criminal justice.

4. When “Remand” Becomes Punishment

Remand was intended as a temporary measure — to ensure that accused persons appear in court when needed. However, in practice, remand in Ghana often turns into a pre-trial punishment. Some remand prisoners spend more years in custody than the maximum sentence prescribed for the offences they are accused of.

In Martin Kpebu v. Attorney-General [2015], the Supreme Court condemned this practice, holding that prolonged pre-trial detention violates both the right to liberty and the right to be tried within a reasonable time under Article 19(1). The Court stressed that justice delayed is justice denied — especially for those presumed innocent.

Similarly, in Solomon Kwaku Sarpong v. The Republic [2012], the Court of Appeal held that excessive delay in bringing an accused person to trial violates constitutional rights and amounts to unlawful imprisonment.

The problem, therefore, is not only moral — it is legal. Keeping a person indefinitely on remand, particularly in the same conditions as convicts, transforms lawful detention into unconstitutional punishment.

5. The Human Cost of Constitutional Violation

To appreciate the magnitude of the violation, one must understand the reality inside Ghana’s prisons. Reports by the Prisons Service and CHRAJ (Commission on Human Rights and Administrative Justice) describe overcrowded cells, poor sanitation, and inadequate healthcare. Convicts and remand prisoners alike sleep shoulder to shoulder, sometimes with fewer than two square meters of space per person.

These are not conditions of “lawful custody” — they are conditions of suffering. And when those enduring them have not yet been convicted, it becomes an act of cruel and inhuman treatment, contrary to Article 15(2) which forbids torture or degrading punishment.

6. International Standards

Ghana is also bound by international human rights law. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) — to which Ghana is a party — require that:

“Untried prisoners shall be kept separate from convicted prisoners and shall be subject to separate treatment appropriate to their status as unconvicted persons.”

This aligns perfectly with Article 15(3) of the Constitution. The continued violation of this standard not only breaches domestic law but also Ghana’s international commitments under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, both of which protect liberty and dignity.

7. Why the Problem Persists

The persistence of this constitutional violation is due to multiple failures — systemic, institutional, and attitudinal.

• Investigative delays: Police often fail to complete dockets on time.

• Prosecutorial negligence: State attorneys and prosecutors sometimes abandon cases without withdrawal or nolle prosequi.

• Judicial inertia: Some courts fail to regularly review remand orders as required by law.

• Infrastructure deficits: The State has not built distinct remand centers, leading to the mixing of accused and convicted persons.

Although initiatives like the Justice For All Programme, introduced in 2007, have helped free many unlawfully detained persons, these remain temporary reliefs rather than systemic solutions.

8. The Way Forward

To align Ghana’s practice with its constitutional principles, several reforms are necessary:

1. Strict Enforcement of Article 15(3):
   Remand prisoners must be held separately from convicts, with humane conditions reflecting their untried status.

Regular Judicial Review of Remand:
Courts must periodically review remand orders to prevent indefinite detention, as required under Section 296 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).

Alternative Measures:
Introduce electronic monitoring and community supervision as alternatives to custodial remand for minor offences.

9. Upholding the Spirit of the Constitution

The framers of the 1992 Constitution, conscious of Ghana’s history of arbitrary detention under military regimes, built strong safeguards for personal liberty. To disregard those safeguards is to betray the lessons of our past and the promise of our democracy.

Justice in Ghana must be anchored not only in punishment but also in fairness and humanity. The accused person, even if suspected of wrongdoing, remains a citizen entitled to the protection of the law.

As Justice Sowah reminded us in the Tuffuor case, the Constitution “has its spirit, its intendment, and its fundamental purpose.” That spirit must breathe life into our legal system. It calls for a justice system that protects the innocent, rehabilitates the guilty, and upholds the dignity of all.

10. Conclusion

Remanding accused persons in prison custody is more than a procedural flaw — it is a constitutional failure. It violates Article 15(3), undermines Article 19(2)(c), and desecrates the principle of liberty in Article 14(1).

To keep the unconvicted within prison walls is to punish before guilt; to blur the line between justice and cruelty; and to erode public faith in the rule of law.

Ghana must therefore end this unconstitutional practice. Justice must not begin in chains. The Constitution demands that until guilt is proven, liberty and dignity must remain intact — for justice is not merely about conviction; it is about the preservation of our humanity.

By
Komfa Ishmael Ofori
Level 100 LLB Student
Facebook: Komfa Ishmael
Watsapp: 0243510505

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