Kpebu v. Attorney General [2019] GHASC 90 (18 December 2019)

Material Facts:

The plaintiff invoked the original jurisdiction of the Supreme Court for a declaration, among others, that on a true and proper interpretation of Article 14(3) of the 1992 Constitution, a Saturday, a Sunday, a public holiday, anytime during a civil unrest, and any other day that the courts in Ghana cannot sit would be counted in reckoning the 48 hours within which a person arrested must be brought before a court.

Issue:

Whether or not, upon a true and proper interpretation of Article 14(3) of the Constitution, the unavailability of judicial and court services to persons under arrest or in detention on suspicion of criminal conduct on public holidays, weekends, and during events of civil unrest is in consonance with or is in contravention of the Constitution.

Arguments of the Plaintiff:

1. That because the court does not sit on weekends and public holidays, persons arrested often find themselves in police custody beyond the constitutionally mandated 48 hours. That these non-working days are creatures of legislation, which are subordinate to the constitution.
2. That although the constitution does not stipulate the mode for calculating the 48 hours, every day of the calendar must be taken into account in counting. This includes weekends, public holidays, and any other day the court cannot sit (either due to strike or civil unrest).

Arguments of the Defendant:

1. That while Article 14 guarantees the right to personal liberty of every person, it has exceptions such as the execution of an order of a court or reasonable suspicion of an offence having been committed.
2. That although Article 14(3) does not expressly exempt any day in calculating the 48 hours, the enforceability of Article 14(3) is dependent on the accessibility of the Court. That it would be unreasonable to say that an accused person can be brought before the court irrespective of day and time.
3. That the reality is that the court cannot sit on certain times and days. That the provision in Article 14 (3) should not be interpreted literally to require that the court sits at the expiration of the 48 hours.
4. That if the court is not sitting on the expiration of the 48 hours, the accused can be brought before the court on the next working day during normal working hours.
5. That Article 14(4) has provided enough safeguards in addressing the issue of lengthy trials, and this protects all accused persons, whether in detention or on bail.

Holding:

The unavailability of the courts on weekends, holidays, and periods of civil unrest to persons under arrest or in detention on suspicion of criminal conduct is in contravention of Article 14(3) of the 1992 Constitution .

Ratio Decidendi:

The issue raises the following three questions:

1. What is the intent and purpose of Article 14 (3) ?
2. What should be the method of reckoning the 48-hour time limit set by the Article?
3. Are there any circumstances that will justify an exception to the 48-hour time limit without contravening the Constitution?

Article 14(3), a fundamental human rights provision, forms part of the entrenched provisions in the 1992 Constitution. This right, like several other human rights, like the right to life, is internationally recognised as being fundamental, inherent in the very fact of being human, and “are not granted by any political or royal act; they are universal and adhere to every human being, wherever he/she is, and of whatever gender, religion or social status.”

However, there is also a recognition that:

All such rights are subject to respect for the rights of others, and to laws that are necessary for assurance of a just and peaceful society in which rights may be enjoyed equitably.

Article 14(3) protects personal liberty by requiring that even where the right to personal liberty is curtailed by lawful means,

The custodian is obliged to bring the arrested or detained person before a Court of law within 48 hours of arrest or detention, or release the person conditionally or unconditionally. This is clearly the intent and purpose of Article 14(3). When the person arrested or detained is brought before a court of law within the 48 hours, the court is afforded the opportunity to make timely determinations on issues concerning personal liberty arising therefrom, so as to prevent the infraction or continued infraction of such rights, because, in the final analysis, it is only the decree of a court of competent jurisdiction that carries power to deprive a person of his/her liberty for a period which longer than that stipulated by the Constitution.

...

We reiterate that the constitutional expectation is that a person must not lose his/her liberty for more than 48 hours unless that person has been brought to a Magistrate or a Judge and the issue of his/her personal liberty has been determined. The interest being protected under Article 14(3) of the Constitution must override all other considerations such as pre-existing statutory rights, inconvenience, any attendant administrative costs, etc.

The requirement that the custodian brings a person before a court of law within 48 hours is unambiguous and means exactly “within 48 hours”, which includes all weekends, periods of strike action, and periods of civil unrest subject to the reasonable assurance of the safety and security of judicial officers. The court will give that provision its ordinary meaning and not dilute it simply because it will create inconvenience or difficulty.

Their lordships order that the chief justice designate in each metropolitan, municipality, and district in Ghana courts that will sit on public holidays and weekends to determine issues pertaining to personal liberty. In periods of unrest, judges must be allowed to hold proceedings in chambers or in their residence. The Inspector-General of Police must also ensure that all investigators are aware of the import of Article 14(3).

Principles in Case:

1. A person who is arrested or detained shall be brought before court within forty-eight hours after the arrest, restriction or detention or be released conditionally or unconditionally.

2. Forty-eight hours means exactly forty-eight hours.