Right to Personal Liberty
Introduction:
This note will discuss constitutional provisions on the right to personal liberty. In doing so, our focus will be on Article 14 of the 1992 Constitution , which protects personal liberty and provides for circumstances under which a person may be deprived of his personal liberty.
Meaning of Personal Liberty:
Also known as individual liberty, personal liberty is characterised as
One's freedom to do as one pleases, limited only by the government's right to regulate the public health, safety, and welfare
This definition appears broader than the judicially recognised conception of “personal liberty.” In the case of Dr. Prince Obiri-Korang v. Attorney General (J1/18/2021) [2024] GHASC 21 (24 July 2024), for instance, the plaintiff subscribed to such a broad definition of personal liberty when he contended that the criminalisation of unnatural carnal knowledge in Section 104(1)(b) of Act 29 violated sexual autonomy and was, therefore, contrary to Article 14 (1) of the 1992 Constitution, which protects personal liberty. The Supreme Court of Ghana disagreed with the plaintiff’s usage and understanding of personal liberty as used in Article 14 (1), and advanced that in light of the provisions in Article 14(1)(a)-(g) , personal liberty, if contextually construed,
Pertain[s] to the free physical movement of the person, subject to such restrictions against any liberties as sanctioned by law or the constitution itself.
Their lordships also noted that from the cases of Martin Kpebu (No. 1) vs. Attorney General (No. 1) [2015] DLSC 3031 , Martin Kpebu (No. 2) v. Attorney-General (No. 2) [2015-2016] 1 SCGLR 143 , Martin Kpebu (No. 3) Vs. Attorney-General (No. 3) [2020] 152 GMJ 97 , Gorman vs. Republic [2003-2004] 2 SCGLR , Dodzie Sabbah Vs. Republic [2015] GHASC 133, the right to personal liberty:
Primarily deal[s] with the constitutional or unconstitutional restrictions on the movement of the individual freely in a democratic state
From the perspective of criminal law and procedure, this conceptualisation is correct.
Protection of the Right to Personal Liberty under the 1992 Constitution:
A close reading of Article 14 of the 1992 Constitution reveals that it makes provision for the protection of the personal liberties of two classes of persons:
A. Every person.
B. Arrested, restricted, or detained persons.
These classes are now discussed.
A. Protection of Personal Liberties of Every Person:
In Article 14 (1) of the 1992 Constitution, it is provided that:
Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty… [exceptions to follow].
In light of this provision, any act or law that violates personal liberty is unconstitutional. In the case of Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2) , for instance, the Supreme Court declared Section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) void because, among others, it violated Article 14 (1) (supra) . Their lordships noted that Article 14(1) provides a list of circumstances under which the liberty of a person may be taken away. Section 96(7), however, violates that provision by adding to the list.
Exceptions to the Right to Personal Liberty of Every Person:
In the case of Dr. Prince Obiri-Korang v. Attorney General (supra) , the Supreme Court of Ghana unanimously held that:
Whereas, the enjoyment and ventilation of human rights have been guaranteed under the 1992 Constitution, just as in all civilized nations across the world, these rights, freedoms and liberties are not at large absolute and without limits.
In that case, their lordships advanced that even if personal liberty in Article 14(1) includes sexual autonomy as urged by the plaintiff, the plaintiff must still show that the criminalisation of unnatural carnal knowledge between two consenting adults in Section 104(1)(b) does not fall within the exceptions under Article 14(1) of the 1992 Constitution. The exceptions are now discussed:
1. Execution of a Sentence or Order of a Court in Respect of a Criminal Offence:
In Article 14(1)(a), it is provided that a person may be deprived of his personal liberty:
in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted
For instance, if a person commits a crime and is arrested, prosecuted, and convicted, he may be sentenced to some years in prison; and if he is imprisoned as a result of the sentence, his movement is restricted. However, this will not be contrary to the right to personal liberty because of the exception in Article 14(1)(a) (supra) . Also, a person found to have been insane at the time of committing an offence may be found “guilty but insane,” and per Section 137 (2) of the Criminal and Other Offences (Procedure) Act, 1960 Act 30 , the court “shall order the accused to be kept in custody as a criminal lunatic, in a place, and in a manner directed by the Court till the President’s pleasure is known.”
2. Execution of an Order of a Court Punishing a Person for Contempt:
Further, in Article 14(1)(b), a person may be deprived of his personal liberty “in execution of an order of a court punishing him for contempt of court.” Per the provisions in Article 19(12) and 126(2), it is only the superior courts that have the power to commit a person for contempt.
3. Bringing a Person before a Court in Execution of a Court Order:
In Article 14(1)(c), it is provided that a person may be deprived of his personal liberty “for the purpose of bringing him before a court in execution of an order of a court.” Thus, when a court orders that a person be brought before it, restrictions on the personal liberty (movement) of the person in execution of the order are not a violation of his personal liberty.
4. Treatment of a Sick Person or Protection of the Community:
In Article 14(1)(d), it is provided that one of the grounds under which a person may be deprived of his personal liberty is:
In the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community;
This exception appears to be consistent with the holding in several cases, such as the case of Dr. Prince Obiri-Korang v. Attorney General (supra) , that rights can be restricted for the public interest. In the case of Gorman v. The Republic [2003–2004] 2 SCGLR 784, the Supreme Court of Ghana, speaking through Modibo Ocran, advanced that:
However, we must always guard against a sweeping invocation of fundamental human rights as a catch-all defence of the rights of defendants. People tend to overlook the fact that the Constitution adopts the view of human rights that seeks to balance the rights of the individual as against the legitimate interests of the community. While the balance is decidedly tilted in favour of the individual, the public interest and the protection of the general public are very much part of the discourse on human rights in our Constitution. Thus, Article 14 (1) (d) makes it clear that the liberty of certain individuals, including drug addicts, may be curtailed not only for the purpose of their own care and treatment but also ‘for the protection of the community.
During the Covid-19 pandemic, for instance, the personal liberty of people was restrained on this ground.
5. Education or Welfare of a Minor:
In Article 14(1)(e), it is provided that a person below the age of eighteen years may be deprived of his personal liberty if such deprivation is for the purpose of his education or welfare.
6. Expulsion or Removal from Ghana:
In Article 14(1)(f), it is provided that a person may be deprived of his personal liberty:
for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another
For example, if a person without a visa attempts to enter Ghana, he may be prevented from doing so, and such prevention, even though it restricts his movement, is not a violation of his right to personal liberty.
7. Reasonable Suspicion that a Person is about to Commit or has Committed a Crime:
In Article 14(1)(f), it is provided that a person may be deprived of his personal liberty:
upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.
B. Protection of the Personal Liberty of an Arrested, Restricted, and Detained Person:
In Articles 14(2)–(7) of the 1992 Constitution, various provisions are made for the further protection of the personal liberty of persons who have been arrested, detained, or restricted. These provisions, it appears, are there to ensure that persons who already have their personal liberty restricted pursuant to the provisions in Article 14(1)(a)– (g) are not subjected to arbitrary or unlawful treatment and are afforded procedural safeguards and remedies to protect their fundamental human rights. The provisions are now discussed.
1. Requirement that an Arrested Person be Informed of the Reason for his Arrest and his Right to Counsel:
In Article 14(2), it is provided that:
A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.
If a person is not informed of the reason for his arrest or his right to a lawyer of his choice, evidence taken against him may be held to be inadmissible. In the case of Okorie alias Ozuzu [1974] 2 GLR 272 , for instance, the appellants were convicted in the High Court for the murder of one John Appiah and sentenced to death. In prosecuting the second appellant, the prosecution relied on two confessional statements, exhibits A and K. In exhibit A, the second appellant confessed that he put the murder weapon in the hand of the first appellant and helped the first appellant to drag the dead body into the bush. In exhibit K, the second appellant said that the first appellant alone killed the deceased and forced him (the second appellant) to help in dragging the dead body into a bush. These statements were admitted into evidence despite the objections of counsel for the appellant. The appellant was convicted, and on appeal, counsel for the appellant argued that the statements in exhibits A and K ought to have been excluded on the ground that they were made in breach of the appellant’s constitutional right conferred on him by Article 15 (2) of the Constitution of the Republic of Ghana, 1969 (similar to Article 14 (2) of the 1992 Constitution). The court, relying on several decisions in the Supreme Court, held that:
The object of the whole provision of Article 15 (2) , it seems to this court, is, to enable a person, who thinks that he is unlawfully detained or restricted, to apply, or to instruct counsel to apply on his behalf, to the High Court for an order of habeas corpus to secure his release. The Constitution is the fundamental law of the land, and the duty of the court is to ensure its strict observance.
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A departure from the procedures required by Article 15 (2) would render inadmissible at the resulting trial any confessional statement obtained from a suspect.
Similarly, in the case of Republic v. Akosah [1975] 2 GLR 406 , the first accused was charged with attempted abortion. The only evidence incriminating him was confession statements, exhibits B and D, by which the first accused gave an injection to one Georgina Kissi with the intention of causing an abortion. The statements were admitted in evidence without objection. Counsel for the accused argued that the evidence should not have been admitted because the accused was not informed of his right to counsel when those statements were obtained, which is contrary to Article 15(2) of the 1969 Constitution (similar to Article 14(2) of the 1992 Constitution ). The court noted that the Court of Appeal, in the case of Okorie v. The Republic [1974] 2 G.L.R. 272, had decided that statements obtained in violation of Article 15(2) of the 1969 Constitution were inadmissible, and that, that decision was binding. Exhibits B and D were, therefore, declared inadmissible.
2. Requirement that an Arrested, Restricted, or Detained Person be Brought Before a Court Within Forty-Eight Hours after the Arrest (48-Hour Rule):
In Article 14(3), it is provided that:
A person who is arrested, restricted or detained
- for the purpose of bringing him before a court in execution of an order of a court; or
- 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 within forty-eight hours after the arrest, restriction or detention.
The above provision was subjected to thorough analysis in the case of Kpebu v. Attorney General [2019] GHASC 90 (18 December 2019) (Kpebu No. 3 or 48-Hour Rule Case) . In that case, 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 forty-eight hours within which a person arrested must be brought before a court. In deciding the case, the court advanced that 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.
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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.
In deciding the substantive suit, their lordships stated that 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.
3. Requirement that an Arrested, Restricted, or Detained Person that is not Tried within a Reasonable Time, be Released either Unconditionally or Upon Reasonable Conditions:
In Article 14(4) of the 1992 Constitution, it is provided that:
Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
This provision is essentially on the right of an accused to bail if he is not tried within a reasonable time. What amounts to reasonable time for the purpose of this provision was characterised in the case of Dogbe v. The Republic [1976] 2 G.L.R. 82 as follows:
it can safely be said that reasonable time for an act is such period of time the duration of which may be fairly conceded by any reasonable person having regard to the purpose for which the time is required, the nature of the act or duty to be performed and all the attendant circumstances reasonably existing or anticipated or supervening.
This definition was cited with approval in the case of Brefo v. The Republic [1980] GLR 679, where the court added that
An unreasonable delay necessarily means that the person on whom it is incumbent to act has been unreasonable in not acting timeously.
In that case, the applicant was taken into custody on 17 April 1976 pending his trial for murder. After committal proceedings were completed before the District Court, he was committed to the High Court for trial on 10 January 1979. The trial of the case was further delayed by what the court describes as the unavoidable absence of some prosecution witnesses and by other murder cases committed to the High Court before the applicant’s case. The applicant applied for bail pending trial. The court noted that Article 15 (4) of the 1969 Constitution, which is similarly couched as Article 14 (4) of the 1992 Constitution, makes provision for bail when there is unreasonable delay. In refusing the application, the court held that although there was delay in trying the applicant, the delay could not be said to be unreasonable because it was not a result of the fault of the court or the Attorney General.
Under the 1992 Constitution, the right of an arrested or detained person to bail on the basis of him not being tried within a reasonable time, was considered in the cases of Gorman v. The Republic (supra) and Kpebu v. Attorney General (Kpebu No. 2).
In the case of Gorman v. The Republic (supra), the appellants were arraigned before the Greater Accra Regional Tribunal and were granted bail. The Attorney General appealed against the grant of bail, and the appeal was allowed by the Court of Appeal. On appeal to the Supreme Court, the appellants argued that the decision of the Court of Appeal downplayed the constitutional provisions providing for the pre-trial release of an accused person on bail in favour of principles governing bail in Section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) . They argued that Section 96(6) of Act 30 allows the court to consider factors such as the nature of the accusation in deciding whether to grant or refuse bail; and that these factors are not mentioned in the 1992 Constitution and are, therefore, not compatible with it. The Supreme Court of Ghana, in dismissing the contention of the appellants, advanced that the right to be granted bail under Article 14(4) applies to instances where an accused in detention is not tried within a reasonable time. When that is the case, the accused is entitled to bail irrespective of the nature of the accusation and the severity of the punishment as contained in Article 96(6) of Act 30 . Further, when an accused is not tried within a reasonable time, he is still entitled to bail even if his offence is mentioned in Section 96(7) of Act 30 as part of the offences for which bail should not be granted.
Also, in the case of Kpebu v. Attorney General (Kpebu No. 2) , the Supreme Court of Ghana noted that Article 14(4) allows for a person charged with any offence to apply for bail if there is unreasonable delay in the pre-trial proceedings or during the trial where the accused is placed in custody. Speaking through Benin JSC, the court noted that Article 14(4) has additional support in Article 19(1), which provides that:
A person charged with a criminal offence shall be given a fair hearing within a reasonable time.
His lordship added that the provision in Article 19(1) , when taken together with Article 14(4), “confirms the importance attached to time in dealing with criminal offences lest the rights of the individual should be abused, even for those who are on bail.”
4. Requirement that a Person who has been Unlawfully Arrested, Restricted, or Detained by Any Other Person be Paid Compensation from that Other Person:
In Article 14(5), it is provided
A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.
It is respectfully submitted that the detention, arrest, or restriction of a person would be unlawful if the basis for the arrest or detention does not form part of the grounds in Article 14(1)(a)-(g) (supra) . The obligation to pay compensation is also on the party responsible for the unlawful arrest or detention.
5. Requirement that the Time an Arrested, Restricted, or Detained Person Spends in Lawful Custody be Taken into Account in Imposing the Term of Imprisonment:
In Article 14 (6), it is provided that:
Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.
This provision has been clarified in the cases of Gabriel Kwao Boso v. The Republic No. J3/2/2007 and Ojo & Another v. The Republic [1999-2000]. 1 GLR 169 .
In the case of Gabriel Kwao Boso v. The Republic (supra), the Supreme Court cited Article 14(6) and rhetorically asked how one may arrive at the conclusion that the period an accused was in custody before the conclusion of the trial has been taken into account in imposing the term of imprisonment. In the opinion of their lordships, there are no hard and fast rules as to the form, manner, or language in which the court’s compliance with Article 14 (6) should be stated, but the fact of compliance must either explicitly or implicitly be clear on the face of the record. However, they held that:
The more explicitly the court expresses the position that it has taken into account the said period, the better it is for everyone as it places the question beyond every controversy and leaves no room for doubt. Nonetheless, we think that any reference to the period spent in custody before the conclusion of the trial in a manner that suggests that it weighed on the judge’s mind before deciding on the sentence should be sufficient.
In the case of Ojo & Another v. The Republic (supra) , the appellant had spent two years in lawful custody before his conviction by a National Public Tribunal to a mandatory ten years under the relevant statute. He appealed against his conviction on the grounds that, contrary to Article 14(6) of the 1992 Constitution, the Tribunal did not consider the two years he had spent in lawful custody. He argued
The Court noted that in light of Section 315 of Act 30 , a court cannot backdate a sentence. Article 14(6) does not even require a court to backdate a sentence but simply requires that if a court would have imposed, say, six months on an appellant who has already spent two months in lawful custody, the court should instead impose four months. However, the court also clarified that if a law makes provision for the minimum sentence for an offence, the court cannot impose a lower sentence other than the minimum by virtue of Article 14(6) . The court concluded by advising that trial courts should state expressly on the record of proceedings when they took a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison is announced publicly by the trial judge.
6. Provision for the Compensation of a Convicted Person who has Served the Whole or Part of his Sentence but has been Subsequently Acquitted on Appeal:
In Article 14 (7), it is provided that:
Where a person who has served the whole or a part of his sentence is acquitted on appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person acquitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.
This provision was extensively discussed in the case of Sabbah v. Republic [2015] GHASC 133 (11 June 2015) . In that case, the appellant and his brother were arrested on charges of conspiracy to commit murder and the murder of one Amegbor Amedorme. They spent 8 years in remand custody before the trial began in March 2001. They were convicted and sentenced to death in August 2001. The appellant successfully appealed against both charges in January 2004 on grounds of jury misdirection. His brother subsequently admitted to being solely responsible for the death of Amegbor Amedorme. Pursuant to Article 14(7) of the 1992 Constitution, he applied to the Court of Appeal for compensation for wrongful arrest, conviction, and sentence to death. The Court of Appeal refused the application on grounds that his arrest and prosecution were all regular and devoid of any abuse of the law or breach of any human rights. He appealed to the Supreme Court, and the issues decided by the court were:
On the first and second issues, the Supreme Court of Ghana, speaking through Wood CJ, held that a person is not automatically entitled to compensation on acquittal, and the Supreme Court is not also mandated to order that compensation be paid once a certification has been made by the Court of Appeal.
On the third issue on eligibility criteria and assessment of the amount to be paid as compensation, their lordships collectively suggested that the following be considered:
Conclusion:
The right to personal liberty, which primarily deals with the constitutional or unconstitutional restrictions on the movement of the individual freely in a democratic state, is guaranteed under Article 14 of the 1992 Constitution. This right is subject to exceptions such as execution of a sentence, prevention of a crime, restraining a person suffering from a sickness, among others. Further provisions are made for the protection of persons who have been arrested or detained. These provisions include the right to counsel, the right to be tried within a reasonable time or be released, right to compensation upon wrongful arrest or detention, and the possibility of receiving compensation upon acquittal.