Is the Criminal Code subservient to the Constitution?

The Osu Magistrate Court in Accra became the centre of drama on Thursday, July 29, 2010, when officials of the Bureau of National Investigations (BNI) attempted to re-arrest suspected drug dealers, after they have been granted a GH¢10,000 bail by the court, presided over by Ellen Anokye.

The magistrate, who was not happy with the action of the BNI came out of her courtroom to insist that her orders must be obeyed. This resulted in a scuffle between her and the BNI officials, who also contended that per the criminal procedure amendment code of Act 714, people involved in narcotic drugs related issues could not be granted bail.

The misunderstanding compelled the Greater Accra Regional Police Commander, Rose Bio Atinga to intervene and take custody of the suspects.

In the media debate that ensued, many legal luminaries argued for or against the decision of the Magistrate to grant the suspects bail.

The New Patriotic Party (NPP) Member of Parliament for Adansi Asokwa, Mr. K. T. Hammond argued on Citi FM that the magistrate was wrong in granting bail to the suspects, because the law does not permit her to do so.

Mr. K.T. Hammond also disagreed with Mr. Kwame Akuffo, an Accra-based legal practitioner, that even though narcotic offences are non-bailable, judges could sometimes use their discretion to grant bail, because the constitution itself, which the criminal code is subservient to, gives the right for judges to grant bail.

Speaking on Peace FM a day after the court fracas, Mr. Kwame Akuffo admitted that dealing in narcotics was one of the offences under the criminal code where a court cannot grant bail to suspects. He, however, said since every law enacted by Parliament is subservient to the Constitution, and the fact that the latter guarantees the right to bail, the magistrate did not err in granting bail to the suspects.

Another legal luminary and a lecturer at the Ghana School of Law, Mr. Maxwell Opoku Agyemang, also argued on Adom FM, on the same Friday, that the inclusion of narcotics as one of the non-bailable offences was a dangerous decision, because it could be abused.

He noted that if a powdered substance is found in one's possession, which might not be a narcotic drug, the police can use the non-bailable clause in the Criminal Code to deny the accused person bail, on the flimsy excuse that the police were still investigating the case.

According to him, it was as a result of the above that some of them opposed the law, but Parliament went ahead to enact it.

The Adansi Asokwa MP, however, disagreed with these positions, contending that if the constitution can override laws enacted by Parliament, as espoused by Mr. Kwame Akuffo, then there was no need to maintain the non-bailable laws in our statute books, and that they should rather be expunged.

He noted that before the New Patriotic Party (NPP) assumed the reins of the country, narcotics was not one of the non-bailable offences, but their attempt to fight the drug war compelled them to introduce it.

PROBLEM WITH DRUG TRADE
Before I proceed to express my opinion on this particular case, which has now been disposed of by a court of competent jurisdiction, I wish to point out that I am not in favour of the drug trade in any form. Indeed, the involvement of Ghanaians in the cocaine business has tarnished the image of this country to the outside world.

Until recently, the Ghanaian passport was respected anytime one traveled outside the country. In fact, the British Government started to demand entry visas from Ghanaian travelers to the United Kingdom as late as 1986.

Before then, all that a Ghanaian needed to travel to the UK with, was his or her passport, as the visa was given upon arrival at Heathrow Airport.

But today, as a result of the drug menace and the fact that some Ghanaians have been arrested at some international airports across the globe, anyone traveling on a Ghanaian passport is subjected to intensive search, as if the person is a common criminal. I personally experienced this at the LaGuardia International Airport in New York City.

After I had presented my passport to one of the security officers, the first question she asked me was, 'oh, so you are from Ghana.' 'Yes', I responded, 'Is there any problem', I also asked her.

'No please, but kindly join this queue for me,' she told me. This was after she had made a sign on my boarding pass. Unknown to me, the lady wanted me to be subjected to a special security check, for reasons I could not fathom.

At a point in time, I nearly lost my temper, but the security man conducting the search asked me to be patient and that he was only carrying out his duties. After my winter coat, shoes, belt and hand bag had been subjected to forensic examination, I was asked to proceed to my boarding gate.

I was worried throughout my one hour flight from New York to Toronto, Canada, because the security men did not tell me exactly my crime to warrant such treatment, though I concede that such random checks are routinely carried out at international airports, including our own Kotoka International Airport.

I also once experienced this trauma at the Helsinki International Airport in Finland. In all these, what occurred to me was that the involvement of Ghanaians in the cocaine trade has tarnished the image of all Ghanaians, resulting in the ill treatment nationals of this country are subjected to when they arrive in some of these advanced countries.

Indeed, apart from the embarrassment that travelers go through, drugs also have the potential to destroy the future of this country. Those who have been to Mexico, Trinidad and Tobago and some other Caribbean countries, would agree with me that as a result of the high use of drugs, crime rate is very high.

The government of Trinidad in particular is spending huge sums of money trying to fight the drug trade. Surely, this is not what we should expert in Ghana, and that is why I would always support the fight against the drug menace in this country of ours.

With this bad experience at the back of my mind, and knowing the negative implication the use of drug can have on our youth, I will be the last person to support anyone arrested for carrying or dealing in narcotics.

What I am about to do is just to examine the criminal procedure amendment code of Act 714,  which bars the court from granting bail to drug suspects, and examine it to see whether it is in line with the human rights provisions in the constitution and other laws of the land.

I must, however, point out that I am a journalist and not a lawyer, therefore, the argument I am going to espouse should not be considered as sacrosanct, but the view of a layman.

INDIAN SUPREME COURT
In earlier submission that I alluded to, K. T. Hammond based his argument on the Act 714 of the criminal code to support the position  of the BNI that narcotics offences are non bailable. Though his learned friend, Lawyer Akuffo contended that such laws are subservient to the constitution, he disagreed and insisted that narcotics suspects should not be granted bail.

I agree perfectly well with KT that based on the orders contain in the criminal code, Ellen Anokye made a great mistake in granting bail to the suspects. However, if the argument is to be stretched further, as Akuffo did, then in my opinion, the judge did not err because the constitution, which is the supreme law of the land, guarantees the right to bail.

Soon after gaining independence from the British in 1947, the government of India passed a number of laws. Among these laws was a caveat that women have no right to demand equal work with equal pay. In otherwise, if a man and a woman are in the same work in an organization, the former can earn more than the latter.

The order, which was contained in the Directive Principles of the constitution, was not enforceable in any court of law in India. This means that even if a woman sued in court to demand equal pay with her male counterparts, no court would entertain such a suit, because equal work for equal pay is not enforceable in court.

But in 1982, the Supreme Court of India gave a landmark ruling on the case, which shocked those who promulgated such a law that discriminated against women.

Following an appeal that was filed, the latter held that though equal work for equal pay is not enforceable in any court, it must be used to guide the interpretation of the  Fundamental  Human Rights  to equality as spelt out in Articles 14 and 16 of the  Indian constitution, which is enforceable in court.

It has been stated in the constitution that all Indians must be treated equally without any discrimination. The Supreme Court noted in its ruling that though the Directive Principles do not allow it to enforce equal work with equal pay, the constitution also frowns on all forms of discrimination, and since denying women the right to receive equal pay with their male counterparts, is discriminatory, it is wrong to treat women in such a way and that the order was unconstitutional.

The court, therefore, ruled that women must be entitled to equal work with equal pay. By this ruling, the court turned a law which is not enforceable in court into an enforceable one.

ABUSE OF FUNDAMENTAL HUMAN RIGHTS
Now it is undeniable fact that the Criminal Procedure Amendment code of Act 714, does not allow people charged with narcotics offences to be granted bail. But as argued by the Indian Supreme Court, the criminal code should be used to guide the interpretation of the Fundamental Human Rights provisions in the 1992 constitution, which is the supreme law of the land.

Article 12 (1) of the 1992 constitution of the Republic of Ghana reads: The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary, and all other organs of government and its agencies, and where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.

As noted by Kwame Akuffo, the criminal Code is subservient to the constitution and it was on the basis of this that the Indian Supreme Court was able change a non enforceable law into an enforceable one.

Now, since the constitution itself guarantees right to bail to suspects, which is enforceable in court, I do not see why Ellen Anokye should be bastardized for her decision to grant bail to the cocaine suspects.

Those who argued against the decision of Ellen Anokye should take it upon themselves to challenge it at the Supreme Court to give proper interpretation on the matter. This would help to set the minds of Ghanaians at ease, instead of the noise that is made, anytime a cocaine suspect is granted bail.

Until the New Patriotic Party (NPP) went to court to challenge the celebration of the 31 st December Revolution with public funds, nobody knew it was an illegality that was being perpetuated on Ghanaians, because the celebration was backed by the relevant law. It is about time Ghanaians begin to test our laws in the courts to see if they are still relevant.

In his book, 'The Right Revolution, Lawyers, Activists and Supreme Courts in Comparative Perspective', Charles R. Epp recounted how Chicago police without warrant, forced their way into James and Flossie Monroe's home in 1958, pulled the family out of bed and forced them stand half naked in the living room whilst they ransack the home.

The police later took the couple to the police station and questioned them for ten hours without allowing the presence of their lawyers. The couple later sued the police under the Federal Civil Right Statute but they lost the case. They appealed to the Federal Supreme Court and won the case in 1961.

Like the Indian case I spoke about earlier, if the Chicago couple had not pursued the case all the way to the Supreme Court, their civil right would not have been restored. I believe this is what NPP, led by Mr. J. H. Mensah, did in the case of the 31 st celebration.

In conclusion, I submit that the non bailable clause in the criminal code infringes upon the fundamental Human rights of drug suspects and if it should be strictly enforced, then the constitution itself must be amended to remove any doubts about its relevance.

As I have already indicated I am not supporting those who think the only way to acquiring wealth is through drug trade. What concerns me is the fundamental human rights of the suspects, which is being abused.

Per 1992 constitution, any one found guilty of murder is sentenced to death but ever since this constitution was approved, no president has ever signed a death warrant for one convicted for murder to be executed. This shows that we, as a country, respect the right of individuals, and this must be extended to all suspects standing trial before the law.

Written by Emmanuel Akli