By Daniel KORANG Esq.
In the administration of criminal justice in Ghana, the concept of bail and the constitutional requirement to produce detained persons before a court within 48 hours are pivotal safeguards against abuse of power and unlawful detention.
While these constitutional provisions are designed to protect the fundamental human rights of criminal suspects, a troubling practice persists: individuals granted bail by the police or arresting institutions but are unable to meet the bail conditions often remain in custody for periods exceeding 48 hours.
This raises a critical legal and constitutional question – does the 48-hour rule still apply when a suspect has been granted bail by the arresting institution but remains in detention due to his inability to meet the bail terms? Can it be said that the person who has been granted bail but is unable to meet his bail conditions has been ‘released’.
What is Bail?
Bail refers to the temporary release of a criminal suspect or accused person from custody, with or without conditions, pending further investigation or trial. It is not an acquittal or a determination of guilt or innocence, but a mechanism that balances the interest of the state in administering justice and the individual’s right to liberty.
There are two main types of bail under Ghanaian law, which are (1) police bail, and (2) court bail. Police bail colloquially refers to bail granted by arresting institutions such as the police, Office of the Special Prosecutor and Economic and Organised Crime Office. On the other hand, court bail is granted by the court before whom the suspect or accused is arraigned. A court bail may be bail pending trial or bail pending appeal.
The overriding purpose of bail is to ensure the certainty of the suspect appearing before the arresting institution for further investigations or prosecution; or appearing in court to stand trial, as the case may be. Thus, in considering whether to grant bail to a suspect or not, the arresting institution or the court are enjoined by section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) to consider the likelihood of the accused to appear to stand trial.
Under the law, bail must be refused where the court or the arresting institution is satisfied that the accused person (or suspect) (a) may not appear to stand trial, (b) may interfere with witnesses or evidence, or in any way hamper police investigations, (c) may commit a further offence while on bail, or (d) the offence is punishable by imprisonment exceeding six months which is alleged to have been committed while the accused was on bail.
The Meaning and scope of the 48-Hour Rule
Article 14(3) of the 1992 Constitution of Ghana provides:
“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 of law within forty-eight hours after the arrest, restriction or detention.” (Emphasis added)
This provision is unequivocal in its language. The 48-hour rule applies to every detained person who is not released or who is in continued detention. It does not matter whether the person has been refused bail or has been granted bail but is unable to meet his bail conditions.
The essence of the 48-hour rule is to serve as a check on arbitrary and prolonged detention without judicial oversight. It is a core aspect of the right to personal liberty under Article 14(1) of the Constitution, and it operates as a safeguard against abuse of police or executive authority. By requiring that the suspect be brought to court within 48 hours, the Constitution helps to prevent situations where people are detained indefinitely without charge or trial.
The 48-hour rule targets a specific mischief, that is, unlawful and excessive detention by the state’s security agencies. The history of Ghana prior to the 1992 Constitution was marked by instances of arbitrary arrests and extended detentions without trial, leading to widespread abuse of state power.
The framers of the 1992 Constitution sought to rectify this by mandating that the judiciary should be involved at the earliest possible point after arrest and detention of a person. Importantly, the 48-hour rule is not conditioned on whether the suspect has been granted bail or not.
Its goal is to ensure that no person remains in state custody for more than 48 hours without a court order or judicial authorization. Essentially, article 14(3) of the Constitution sets the maximum period for keeping criminal suspects without producing them before a court.
Where a person arrested and detained has been granted bail but he is unable to meet the bail conditions, has that person been released within the terms of article 14(3) of the Constitution? Put differently, does the 48-rule apply to a suspect who has been granted bail by the arresting institution but he is unable to meet his bail conditions?
My candid view of the law is that the 48-hour rule applies to criminal suspects who are in continued detention, whether bail has been refused or they are simply unable to meet their bail terms. Granting bail is not the same as releasing the suspect. A person remains in custody until the bail conditions are met and he is actually released.
Even when the bail conditions are met, the arresting institution must take steps to actually release the suspect from custody. Meeting the bail conditions is one thing, and actually releasing the suspect is another thing. Conversely, where the bail conditions are not met, the mere fact that bail has been granted does not mean the suspect has been released. If the bail conditions are not met, the person remains under the physical control and legal custody of the arresting institution.
This position is supported by the logic and spirit of the Constitution. Article 14(3) does not say that a person must be brought to court within 48 hours unless granted bail. It says the suspect must be brought to court within 48 hours unless released. A person who is still physically detained, for whatever reason, has not been released and therefore is entitled to be brought before a court within 48 hours.
It is only a court that has the power to detain a person beyond 48 hours by way of remand. No arresting institution has the power to keep a criminal suspect in custody beyond 48 hours.
It does not matter that the continued detention is as a result of the suspect’s inability to meet his bail conditions. The prohibition under article 14(3) is imposed on the arresting institution, and the ability or otherwise of the suspect to meet his bail conditions is immaterial.
Where the police or the arresting institution grant bail on excessive terms that a suspect cannot fulfil, and then retain the suspect in custody for more than 48 hours, they are in breach of article 14(3) the Constitution. The law requires that such a person be brought before a judge, who may then assess the fairness and feasibility of the bail conditions, and possibly vary them or remand him.
Continued detention beyond 48 hours, even after bail has been granted, violates the suspect’s constitutional right to liberty. Such detention becomes unlawful, and the affected individual could seek redress in the courts, including habeas corpus, a motion for variation of the bail conditions or an action for enforcement of his fundamental human rights.
When bail is granted with excessive conditions which the suspect cannot meet, the bail effectively becomes an indirect tool of punishment and detention, contrary to law. It is unconstitutional to impose overly excessive bail conditions. Bail conditions should be reasonable and not excessive.
Thus section 96(3) of Act 30 provides that the amount and conditions of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive or harsh. In setting bail terms, the financial position of the accused or his sureties ought to be considered. Granting bail with overly excessive conditions practically amounts to a refusal of bail. Section 96(4) of Act 30 provides that bail shall not be withheld or withdrawn merely as a punishment.
It is submitted that arresting institutions who keep criminal suspects in custody beyond 48 hours without producing them in court, even if bail has been granted but not met, are liable for constitutional infractions. Producing suspects before a court ensures judicial scrutiny over the arrest, the necessity of continued detention, and the appropriateness of bail terms. It is an essential part of due process.
Conclusion
In Ghana, the 48-hour rule is a constitutional imperative designed to protect liberty and prevent the abuse of state power in relation to arrest and detention. Its applicability does not hinge on whether the police have granted bail; rather, it hinges on whether the suspect has been actually released.
Merely granting bail is not coterminous with release of the suspect. What article 14(3) of the Constitution envisages is that where the suspect is not actually released from custody, he must be produced before a court within 48 hours. If the individual remains in custody after he has been granted bail, article 14(3) has been violated. If the meaning of this provision were otherwise, then arresting institutions would have the field day to impose onerous bail terms to keep suspects for as many days as they desire.
Daniel is with Adom Legal Consult,Sunyani
