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24.09.2008 Feature Article


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I read with keen interest, Ebenezer Hansons's recent report on the one day round table conference on the 'No Bail Provisions of Ghana's Criminal Procedure Code' that was organized by the Centre for public Interest Law (CEPIL) filed in the Public Agenda, a Ghanaian paper.

My question at this time is what is the intention and purpose of sec .96 (7) of the Criminal Procedure Code. ?

What is the intention and purpose of article 14 (4) of the 1992 Constitution?

What presents clear at this point is the fact that the 1992 constitution, in my opinion has failed to distinguish between offences for which bail is prohibited and those for which bail is allowed.

This creates a rather dangerous and potentially explosive condition which can be exploited by a rather politically motivated executive to interfere with both the independence of the judiciary and the fundamental human rights of the citizenry, which in my view is a recipe for disaster.

Within this context, l would want to attempt a demonstration of the history of the principle of BAIL .

Evidently, there are compelling reasons why an accused person of criminal behavior should be allowed to be free on bail, after arrest and before trial.

The right to bail implements the basic presumption of innocence that the law assumes for every person charged with crime.

An accused is presumed to be innocent until actually convicted and like all innocent people does not belong in jail.

Furthermore, bail permits unhampered preparation of a defense.
It affords the accused the opportunity to put personal affairs in order and the chance to co operate more meaningfully with his counsel.

Factors that could influence bail can vary.

Generally however, the courts would take into account the nature and circumstances of the offence charged with, the gravity of the evidence against the accused , family and community ties, employment, stability, financial resources, character (previous good character) mental condition and offending history.

A flip through the pages of the Britannica concise encyclopedia would reveal that the main purpose of the use of bail in modern times is to secure the freedom pending trial, of someone arrested or charged with a criminal offence

The right to bail is deeply rooted in English law and practice. That bail must be in a reasonable amount was established by parliament with the enactment in 1689 of the 'Bill of Rights', which declared that 'excessive bail ought not to be required.'

The principle of bail was incorporated into the 8th Amendments of the US constitution.

It is an understanding, to free the accused during the period of the time before trial, while about the same time requiring sufficient surety to make it reasonably certain that the accused will present him/her for trial or punishment as ordered.

The US Supreme Court affirmed the importance of bail in protecting the presumption of innocence of defendants and allowing them to prepare for trial, while acknowledging that traditional bail has been denied in capital cases.

To relieve the financial burden bail places on low income defendants, the Federal Bail Act of 1966 provides for the releases on bases such as previous criminal record, family and community ties.

However, the Bail reform Act 1984 permits the denial of bail to defendants deemed likely to be dangers to the community, which brings in to the fore the argument for preventive detention.

The UK practice reveals 3 categories of bail system.
UK recognizes what is defined as Police Bail, Police to Court Bail and Court Bail.

This acknowledges and accepts the release of a suspect without being charged, but must return to the police station about a given time.

This is where having been charged a suspect is given bail but must attend his/her first court hearing at the time court given.

Where having been in court, a suspect is granted bail pending further investigation or while the case continues.

The current legal practice is that, a defendant has the right to bail unless there is sufficient reason not to grant it.

The main reasons for refusing bail, according to the bail act 1976 (1) that there are sustained grounds for believing that the defendant

a. Will abscond
b. Will commit further offences
c. Interfere with witnesses
d. Conditions may be applied such as living at a specific address or not to contact witnesses.

This picture in my professional opinion constitutes a simple representation of how the principle of BAIL has become an integral component of the concept of fundamental rights in developed societies that value democracy.

How can the Ghanaian Criminal Justice System reconcile the provisions of the article 14(4) of the i992 constitution with the expectations of sec. 96(7) of the criminal procedure code within the context of the fundamental human rights of its citizens?

My professional view is that CEPIL's laudable call at its round table conference for the amendment of our country's criminal procedure code is an important cornerstone, if the fundamental human rights of the Ghanaian are of any value to the powers that be.

• The author is the operations Director of the NGO,Offender Management and rehabilitation Organization (OMRO) and holds a B.A Hons, University of Ghana,Legon(1984),M.A Applied Social Studies University of Durham,UK.1995
• He is also a Youth Crime and Management Practitioner in an inner London borough for over 10 years.

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