Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2)

Material Facts:

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) and the Anti-Terrorism Act, 2008 (Act 762), provides that:

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 acts of terrorism;

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

Article 19(2)(c) of the 1992 Constitution also provides that "A person charged with a criminal offence shall…be presumed to be innocent until he is proved or has pleaded guilty."

The plaintiff invoked the original jurisdiction of the Supreme Court for a declaration that the imposition placed on the courts to deny bail with respect to certain offences, such as murder, robbery, and rape, conveniently referred to as "non-bailable offences," is inconsistent with the principle of "innocent until proven guilty" contained in article 19(2)(c). Primarily, he submits that underpinning the principle of "innocent until proven guilty" is that a person suspected of a crime should not be punished for the crime until he is proven guilty by a court of competent jurisdiction. However, refusing to grant bail to persons suspected of committing certain offences is tantamount to punishing such persons even before their trial.

Issue:

Whether section 96(7) of Act 30 as amended by Act 633 is inconsistent with Articles 14(1), 15(2), and 19(2)(c) of the Constitution.

Argument of the Plaintiff:

1. "Innocent until proven guilty" is a cardinal principle in criminal law. This principle is not rebuttable unless a person has been pronounced guilty of an offence or entered a plea of guilt. Before the principle is rebutted, a person should not be punished by being kept in jail. What section 96(7) does is that it condemns persons suspected of committing certain crimes to suffer, and this is contrary to the principle of innocent until proven guilty in article 19(2)(c).
2. Bail is directly linked to individual liberty, which is guaranteed by article 14 of the Constitution, and the fact that section 96(7) denies bail to persons suspected of committing some offences amounts to an automatic denial of their personal liberty.
3. That the police may abuse their powers to restrict the liberties of persons accused of some offence. All the police need to do to deny a person his liberty is charge him with a "non-bailable offence" (the offences listed in section 96(7) ), and he would be denied bail.
4. In pursuance of the need to curtail possible abuses by the police, the 1992 Constitution has provided the basis upon which the liberty of persons may be curtailed pending their conviction or otherwise.
5. That when a person is denied bail and kept in jail, his human dignity, guaranteed in article 15(2), is violated.

Arguments of the Attorney General:

1. By virtue of article 14(1) of the 1992 Constitution , a person’s liberties can be curtailed in certain situations. For instance, article 14(1)(g) allows for a person’s personal liberties to be taken away if the person is reasonably suspected of committing or about to commit a crime.
2. By virtue of the provisions in article 21(4)(a) and (b), section 96(7), which imposes restrictions on people in defence of public order and safety and for the purpose of ensuring that a suspect appears before a court at a later date to stand trial, section 96(7) is consistent with the provisions of the constitution.
3. As long as both Act 30, section 96(7)thereof, and the Constitution per Articles 14(1) and 21(4)(a) and (b) allow the detention of persons during trial, the argument of the plaintiff, which borders on morality, is untenable.

Holding:

Section 96(7) of Act 30 as amended by Act 633 is inconsistent with Articles 14(1) and 19(2)(c)of the Constitution and, is therefore, null and void.

Ratio Decidendi:

In a 5-2 split, the court recognised the centrality of the principle of innocent until proven guilty in Ghana’s criminal jurisprudence and all around the world. Benin JSC explained the meaning of this principle as contained in article 19(2)(c) as follows:

Article 19(2)(c) of the constitution gives a suspect under investigation or an accused on trial the benefit that he is innocent until the court has found him guilty after a hearing or following a plea of guilt. The grant of bail is one of the tools available to the court to ensure that a suspect or an accused, as the case may be, is guaranteed his innocence until the court has found him guilty. The presumption of innocence embodies freedom from arbitrary detention and also serves as a safeguard against punishment before conviction. It also acts as a preventive measure against the State from successfully employing its vast resources to cause greater damage to a person who has not been convicted than he can inflict on the community. Therefore, in my humble view any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision which guarantees his innocence until otherwise declared by a court of competent jurisdiction.

When a person who is suspected of committing any of the offences in section 96(7) is automatically denied bail and kept in police custody, such custody amounts to a form of punishment that persons presumed to be innocent and who are therefore entitled to be treated as innocent persons do not deserve to suffer. The only reason persons suspected of committing a non-bailable offence are thus being made to suffer (being in custody) is because they are not presumed to be innocent, which goes contrary to article 19(2)(c) that all persons charged with a criminal offence shall be presumed to be innocent until proven guilty. Consequently, section 96(7)goes contrary to article 19(2)(c)and is therefore null and void.

Further ,section 96(7) is also inconsistent with article 14(1) of the 1992 Constitution. Article 14(1)makes provisions for when the constitutionally guaranteed liberties of any person may be taken away. What section 96(7) does is that it, by denying bail to persons suspected of committing non-bailable offences, adds to the list provided in the constitution on when the liberties of a suspect may be taken away. Consequently, " section 96 (7) of Act 30 is therefore an unlawful addition to the constitutional limitations carefully circumscribed under article 14 (1)."

In addition, the courts are vested with discretion to grant or refuse bail under article 14(3) and (4). What section 96(7) of Act 30 does, particularly with the use of the word "shall", is that it mandates the court to deny bail once a charge sheet is produced that shows a person is suspected of committing any of the non-bailable offences. Consequently, section 96(7) is again unconstitutional as it contravenes article 14(3) and (4).

Their Lordships, however, noted that the holding that section 96(7) is null and void does not mean every person suspected of committing a crime now automatically gets bail. The courts have a duty to ensure that when bail is granted, it is granted to suspects who are most likely to appear later to stand trial. Benin JSC stated that:

it is to be noted that bail, not being an inalienable right, article 14 (4) does not confer on "a person arrested, restricted, or detained under paragraph (a) or (b) of clause (3) of article 14", an automatic absolute right to bail in all cases and under all circumstances. But neither does it provide for the complete opposite, namely an automatic denial of bail

Dotse JSC also agreed:

Fact of the matter is that, there is no automatic right to the enjoyment of bail by an accused before the courts. Every case must be dealt with on a case by case basis. As already stated by me, the primary duty of a court is to ensure that an accused when granted bail will appear and stand for his trial. Bail should not be used as a punishment to deny the grant of bail. Whenever there are grounds which indicate that an accused may not appear to stand trial due to his antecedents or facts of the case, the Court should decline bail to such an accused person.

…

The decision of my brother Benin JSC, in which I concur is not a carte blanche for the courts to admit every Tom, Dick and Harry to bail pending trial because of the removal of the statutory shackles in the impugned section 96 (7) of Act 30. I believe the courts having jurisdiction in the offences stated therein, have an unfettered discretion to grant bail using the time honoured principles and traditions that have guided the courts and also as provided in section 96 (4) and (5) of Act 30, already referred to supra.

Thus, in light of the declaration of section 96(7) as unconstitutional, the courts must still decide whether to grant bail or not by using the guide provided in section 96(4), (5), and (6) of Act 30.