Bail and sentencing laws in Ghana need forward thinking

Recent events have thrown into prominence some of the shortcomings in the administration of bail and sentencing laws in Ghana. There is public outcry on the granting of bail to armed robbery suspects. The Chief Justice is said to have asked for the names of all persons connected with robbery cases to be sent to him. There has been some outcry also on the sentencing imposed on some of those convicted of crimes.

The Police have also said bail should be made difficult to acquire or denied outright. These development point to some disquiet in the community as to the integrity of the bail and sentencing processes and principles. The public attitude to the way judges grant bail or impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice. The measures announced by the new Chief Justice to tackle the problem of bail and the problems within the judiciary are a step in the right direction. It is important that we know what the issues in relation to bail and sentencing are if we are to find the right solutions.

The law in Ghana as I understand it is that the police are permitted to grant bail to a person where it is not practicable for them to bring that person before a court within 48 hours after first being taken into custody. The granting of bail allows a person charged with an offence to be released from custody until he or she stands trial. The granting of bail also raises questions fundamental to our justice system: a person’s right to the presumption of innocence and to liberty and society’s right to ensure that those charged with a criminal offence are appropriately detained and, if necessary, punished. It is through the use of the system of bail that this balance is generally maintained and, thus, its importance within the justice system is reinforced. The criminal justice system needs to ensure that an accused person would be available and often, the only way to ensure that this happens is to hold them in custody. However, if the person has not been convicted of any offence to hold them in custody could be seen as unjust. Furthermore, when a person is held in custody the preparation of their defence becomes more difficult, they are separated from their family networks and it may be argued that their resolve to put up their best defence is weakened. There is also the added issue of overcrowding of police cells and prisons and the state of some of the cells. The bail system must therefore ensure the maintenance of the right balance between protecting the individual’s assumption of innocence and freedom on the one hand and the need to ensure that the community is protected on the other.

I sat in the public gallery of some courts in Ghana in 2000 and what I noticed was that the bail and sentencing laws were either not being effectively applied or were inadequate. The key problem with bail issues is that in some cases bail applications are not opposed where they should and State Attorney’s/police prosecutors are in some cases not adequately prepared to advance arguments to oppose the bail. If bail application is not opposed or where the opposition is not supported by well-prepared arguments then the judge may have to grant bail because of the fundamental principle that you are innocent unless proven otherwise.

In my view, bail is given incorrectly because of poorly paid, poorly trained, inexperienced and over extended prosecution and police services. The police complaint that judges ask them questions when they appear before them seems to reinforce this observation. In addition, lack of resources coupled with corruption on the part of officials/police has combined to render ineffective the existing bail and sentencing law. The news item noted “corruption has been cited as the main factor enabling armed robbers to seek and obtain bail and return to rob and kill”. In some cases the workload of police may make it difficult to properly identify a suspect to check on any previous convictions or charges or to check on the effect which the release of the suspect would have on ongoing investigation or on the community. There also appear to poor record keeping which does not allow access to criminal records and previous bail applications resulting in bail been granted where they would have been refused. Furthermore many of the dockets presented to the Courts are poorly prepared. I recall a judge in a Circuit Court making that observation. This may be because there are just too few trained and experienced prosecutors and detectives to deal with the more complicated cases.

The other real problem is how the courts interpret the laws. Judges and magistrates have a discretion which they are called upon to exercise daily in issues of bail and in the sentencing offenders. The exercise of the discretion is governed by the application of sound legal principles. The Courts are independent and the Government should not tell them how to interpret the laws but the laws themselves should be written in a way that makes the intention of the legislature clear that for some serious felonies it is very difficult to get bail. I think the time is right for legislators to be forward thinking and review Ghana’s criminal code and related bail and sentencing laws while considering ways to cope with overcrowding of our prisons and cells. We need to ensure that the presumption in favour of bail was reversed to one against bail in serious felonies like murder and offences where a person has used a weapon (aggravated burglary, assaults and rape). We need to get the balance between human rights and fighting crime right.

I do concede that the problems cannot be solved overnight. They require in some cases injection of money at a time when there are budget constraints. To train and maintain good prosecutors and also implement an automated record keeping system takes time but there are other measures that could be adopted immediately to improve upon the system some of which do not require money or additional resources. For example, the Police Service could reorder priorities and put more resources to preparing cases dockets so they are as comprehensive as possible. A number of police personnel sitting behind desks could be transferred to operational duties.

In my view the real and difficult issues are how to reduce the bribery and corruption in the system and debunk the prevailing view, whether rightly or wrongly, of irresponsible granting of bail and sentencing on the part of the courts and the police. The Police point to courts as being the source of their problems but as the saying goes when you point with your index finger remember the direction of the other fingers. Unless these issues are urgently addressed, no amount of reform of the criminal laws will be able to resolve the problem.