Subject to limited exceptions, article 14 of the 1992 Constitution provides that no

person shall be deprived of his personal liberty. Discuss whether, in light of article
14 of the Constitution, the law on bail has the balance right between the interests
of the suspect and the interest of the public.

Article 14 of the 1992 Constitution of Ghana guarantees certain fundamental human rights and
freedoms, including the right to personal liberty and fair trial.
Bail involves a process whereby the liberty of an accused person in custody is secured pending
further investigation into the crime he is accused of or his trial for the offence wis which he is
charged (quansah) . In the case of Republic v. Registrar of High court ex parte Attorney
General, CRABBE J.S.C. defines Bail as procedure by which a person arrested or imprisoned for
an offence under our law is set at liberty. That liberty is a conditional liberty. It is conditional
upon the appearance in court for further proceedings of the person to whom bail has been
granted. ).
The granting of bail may be conditional upon a guarantee given by another person or other
persons who agree to assume responsibility for the accused person's appearance in court at a
later date by standing surety, or even upon the person's own recognizance or promise to make
himself available whenever needed to answer the charge. (S.96 COOPA). of Republic v.
Registrar of High court ex parte Attorney General,
Types of bail
1. Police enquiry Bail
The police may grant a bail upon the arrest and detention of the accused person (s15(2)COOPA)
This will be in pursuance of article 14(3) (b) of the 1992 Constitution which mandates that a
person who is arrested upon reasonable suspicion of his having committed or being about to
commit an offence, and who is not released, shall be brought before a court within forty-eight
hours after the arrest.
2. A court may grant an accused person bail before his trial (s74 COOPA) during his trial
(Fynn v. The Republic),(owusu v.state), and Akrong v. The Republic). upon conviction
pending appeal (Republic v. Registrar of High court ex parte Attorney General).
Bailable offences
The grant of bail is at the discretion of the court. The fundamental consideration is to determine
whether the accused person will appear to stand trial at the appointed time and venue. In this
regard, the seriousness of the offence committed and the likelihood of a heavy punishment
being imposed are motivations for the accused to abscond and hence an accused charged with
such an offence is unlikely to be granted bail (Okoe v. The Republic 1976 and s96(5) COOPA.
Section 96(7) of COOPA restricts the courts discretion in granting bail in cases involving murder,
subversion, treason, robbery, hijacking piracy, rape, defilement or escape from lawful custody.
However, Art 14(3) and (4) 1992 Constitution mandate the grant of bail for all offences when
accused is not tried within a reasonable time. Section 96(7) prohibits the granting of bail to a
person being held in custody for extradition to a foreign country. In Martin Kpebu (2) v. The
Attorney-General, the Supreme
Court was asked to determine whether s. 96(7) COOPA as amended by the Criminal Procedure
Code (Amendment) Act, 2002 (Act 633) is inconsistent with Articles 14(1), 15(2) and 19(2) of the
1992 Constitution. The court, by majority, held that s. 96(7) COOPA, as variously amended was
inconsistent with Art. 19(2)(c) of the 1992 Constitution and consequently null and void.
Furthermore, Art. 14(1)g does not justify the continued existence of s. 96(7) COOPA
The prohibition infringes the stated articles of the 1992 Constitution. The court however,
rejected the claim founded on Art. 15(2) of the Constitution.
The effect of this decision is that irrespective of the charge an accused person faces, the court
should deal with bail in the light of the particular circumstances of the case devoid of the
restrictions hitherto imposed by s. 96(7) of COOPA,
As rightly observed by Dotse, JSC in the instant case
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... the primary duty of
the court is to ensure that an accused when granted bail will appear and stand
trial...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. Since there is
now no law prohibiting courts from the grant of bail, in the non-bailable offences, reference
should be made to sections 96(4) (5) and (6) of Act 30 and the present-day realities (such as
the dangers associated with terrorism, narcotics and its related crimes whenever bail
applications are considered by the courts having jurisdiction in those offences."

Grounds for the refusal of bail are set out in section 96(5) of COOPA.
a. That the accused may not appear to stand trial;
b. That he may interfere with any witness of evidence, or in any way hamper police
investigations;
C. That he may commit a further offence when on bail;
or
d. He is charged with an offence punishable which was committed while on bail.
section 96(6) provides factors which may be taken into account in determining the likelihood
of the accused person absconding if granted bail. The court is enjoined to consider:
1. The nature of the accusation;
2. The nature of the evidence in support of the accusation;
3. The severity of the punishment which conviction entails;
4. Failure to comply with conditions of recognisance on a previous occasion;
5. Whether or not the defendant has a fixed place of abode in Ghana and is gainfully
employed
6. Whether the sureties are independent, of good character and sufficient means.
The amount and conditions of bail shall be determined having regard to the circumstances of
each case and shall not be excessive or harsh ( s.96(3) COOPA)Finally, a court is not permitted to
withhold or withdraw bail merely to punish the accuses person (S. 96(4) COOPA)

whether the law on bail in Ghana strikes the right balance between the interests of the
suspect and the interests of the public.
The issue of whether the law on bail in Ghana strikes the right balance between the interests of
the suspect and the interests of the public is subjective and can be a matter of debate.
overview of the key considerations.
The law on bail in Ghana is primarily governed by the Criminal and other offences Procedure,
1960 (Act 30). Ghana's criminal procedure consist of not only the statutory procedures set out
in the COOPA, but also the baseline protections given to the accused person by the
Constitution.
In assessing whether the law on bail achieves a proper balance, it is important to consider the
following perspectives:
1. Presumption of innocence: The fundamental principle of criminal procedure in Ghana is
that it is "accusatorial" or "adversarial” in nature as opposed to "inquisitorial". This
means that the accused is presumed innocent until proven guilty or has pleaded guilty.
Article 19(2)(C) of the Constitution states that every person accused of a criminal
offense shall be presumed innocent until proven guilty. Bail serves as a means to uphold
this presumption by allowing suspects to await trial outside of custody. This recognizes
the individual's right to liberty. Therefore, court is not permitted to withhold or
withdraw bail merely to punish the accuses person (S. 96(4) COOPA)
 2. Protection of the public: The law on bail aims to protect the interests of the public by
considering the potential risks posed by releasing a suspect. This includes assessing
factors such as the seriousness of the offense, the likelihood of the suspect fleeing,
interfering with witnesses, or committing further crimes if released on bail.
3. Preventing undue detention: The law on bail seeks to prevent the unnecessary
detention of individuals who do not pose a significant risk to the public or are not likely
to abscond. It recognizes that prolonged pretrial detention can infringe upon an
individual's rights and contribute to prison overcrowding.
On the other hand, we argue that the law on bail strikes a reasonable balance by considering
the specific circumstances of each case as said by Dotse JSC IN THE CASE OF (Martin Kpebu (2)
v. The Attorney-General ). Bail decisions should be based on the facts presented and the
potential risks associated with the release of the accused. These considerations are necessary to
protect the public and ensure the accused's appearance in court.
It is important to note that the law on bail in Ghana has evolved over time.
CONCLUTION
Overall, achieving the right balance between the interests of the suspect and the interests of
the public in the law on bail is an ongoing endeavor. It requires a careful evaluation of the
principles of justice, individual rights, and public safety, while also considering the specific
context and challenges within the Ghanaian legal system. Continual review and reform of the
bail system can help ensure that it remains fair, just, and in line with the constitutional
principles enshrined in Article 14 of the 1992 Constitution of Ghana.

CASES
REPUBLIC v. REGISTRAR OF HIGH COURT; EX PARTE ATTORNEY-GENERAL [1982-83] GLR 407-421
SUPREME COURT, ACCRA. (CRABBE J.S.C.)

Mr. J. E. K. A. Appiah, the special prosecutor to the defunct Armed Forces Revolutionary Council
Review Tribunal was convicted on two counts of a charge of extortion and sentenced to seven
years' imprisonment with hard labour by his honour the circuit court judge Mr. Owusu Sekyere
in Accra on 22 September 1981 and was consequently lawfully imprisoned.
J. E. K. A. Appiah was released on bail on 12 October 1981 by an Accra High Court presided over
by his lordship Mr. Justice Sarkodee following an application for bail pending appeal by his
counsel.
HIGH Court granting bail the learned judge said that the prosecution had failed to prove a vital
ingredient of the offence and stated as follows: 'In my view proof of a vital ingredient of the
offence of extortion is missing .(victim of the extortion was not called) . On this ground alone
the conviction is prima facie bad in law and the appeal is likely to succeed. I do not need to wait
for the record of the proceedings to make up my mind.
An order of certiorari to bring up and quash the ruling of the High Court by the supreme court.
CRABBE J.S.C.
Bail as known to our law is the procedure by which a person arrested or imprisoned for an
offence under our law is set at liberty. That liberty is a conditional liberty. It is conditional upon
the appearance in court for further proceedings of the person to whom bail has been granted.
The sole aim of an application for bail is thus to secure the release, pending trial, of the person
concerned. It is granted on the condition also that the person concerned furnishes sufficient
security to ensure his appearance for the further proceedings.
The grant of bail is an exercise of a discretionary power. The exercise of the discretion must not
be punitive. The main consideration is the likelihood of the person concerned failing to appear
for the further proceedings. These are dependent upon the nature of the offence, the evidence
in support of the charge, the charge itself, the position of the accused and the severity of the
punishment, as also the independence of the sureties. These considerations are, to me, sound
and workable. They stress the common law principle that bail ought, or should, be granted
unless it can be shown that there is the likelihood that the accused or the prisoner will not turn
up at the further proceedings.
DECISION
Applications for bail granted.

FYNN AND ANOTHER v. THE REPUBLIC. JUDGMENT OF TAYLOR J

Appellant was basic rate collector and was charged with stealing cos the money was not
found in the bank account of city council Kumasi. He was was convicted of stealing on all
the four counts preferred and sentenced to a term of twelve months’ imprisonment with
hard labour.. the appellant applied for bail after serving 3years. The State did not oppose
to the application and the power of the court to grant bail pending appeal is contained in
s332(1) of ACT 30. “The High Court is vested with jurisdiction to grant bail either before or
after conviction but the exercise of the court’s jurisdiction is governed by considerations
which differ in either case.”
Butler-Lloyd Ag. C.J sitting as a single judge of the West African Court of Appeal laid down
in a most emphatic manner the principles or conditions applicable to the grant of bail to
an appellant pending the hearing and determination of his appeal. He said in R.v.
Tunwashe (1935) 2 W.A.C.A. 236, where the ex Awujale of Ijebu Ode was applying for bail
pending appeal after his conviction:

“From a careful examination of the reported cases it is clear:

(1) That bail will not be granted pending an appeal save in exceptional circumstances or
where the hearing of the appeal is likely to be unduly delayed.

(2) That in dealing with the latter class of case the Court will have regard not only to the
length of time which must elapse before the appeal can be heard but also to the length of
the sentence to be appealed from, and further that these two matters will be considered in
relation to one another.

To put it in another way, in the absence of special circumstances bail will not be allowed
unless a refusal would have the result of a considerable proportion of the sentence being
served before the appeal can be heard.”

It seems clear therefore that in the view of Butler-Llyod Ag.C.J. bail pending appeal can
only be given in two and only two instances; the first instance is where the appellant can
show special circumstances, a factor which will obviously vary from case to case and the
second instance is where the hearing of the appeal is likely to be delayed having regard to
the length of the sentence.

DECISION

Applications for bail granted.