The Grant Of Bail: The Novel Decision In Martin Kpebu (No.2) V Attorney-General


The recent decision of the Supreme Court in Martin Kpebu v Attorney-General has finally settled the law on the grant of bail and other related offences stated under section 96(7) of Act 30 as amended by section 7 of the Criminal Procedure Code (Amendment Act, 2002 (Act 633) and as further amended by section 41(1) (a) of the Anti-Terrorism Act, 2008 (Act 762).

According to the plaintiff, section 96(7) of Act 30 contravenes articles 15(2) and 19(2)(c) of the Constitution 1992 and is therefore null and void and of no effect. I will quote in extenso the provision in section 96(7) of Act 30 as:
“A court shall refuse to grant bail In a case of treason, subversion, murder, robbery, narcotics, hijacking, piracy, rape, defilement or escape from lawful custody; or

Where a person is being held for extradition to a foreign country. The relevant provisions of articles 15(2) and 19(2) (c) of the Constitution 199 read respectively as follows:
“15(2) No person shall, whether or not he is arrested or detained, be subjected to torture or other cruel, whether or not he is arrested, restricted or detained, be subjected to any other condition that detracts or is likely to detract from his dignity and worth as a human being.”
“19(2) A person charged with a criminal offence shall, be presumed to be innocent until he is proved guilty or has pleaded guilty.”

Professor Henrietta Mensa-Bonsu, writing on the topic: the right to Bail, whose Right? Statute, Judge-made law and the Constitution 1992, (and published in the in the January-June 2014, Vol. 3, No. 1, Banking and Financial Law Journal of Ghana (as stated at pages 199-223), gave an overview of how the issues on bail in Ghana have perceived in the following terms, as follows:

“In Ghana, issues surrounding bail often generated controversy either by the denial of bail or by the terms under which it is granted. In addition, the power as inherited at common law has been greatly curtailed by legislation. Since 1992, the Supreme Court of Ghana has made some effort to straighten out the existence of the power as it affects the constitutional rights of the citizen, but efforts notwithstanding, the issues pertaining to bail have been persistent and recurrent in nature.

Rightly, or wrongly, the public now perceives of this power as an instrument for punishment politically unpopular defendants through the courts, or a means by which powerful accused persons escape their just deserts. These incorrect notions of the role and purpose of that instrument thus underscores the need to subject the instrument to some examination, in order to shed some light on its historical antecedents and thereby elucidate the principles that have guided and continue to guide the exercise of this power by situating it in its historical contexts.”

This paper is aimed at analysing most of the cases decided by our Superior Courts before and after the coming into force of the Constitution 1992 on the grant of bail in murder cases and other non-bailable offences. The purpose of this paper is to inform readers that most of the cases to be discussed herein, granted bail in murder cases. The judges in most of the decided cases relied on some constitutional provisions like 14(1) (g), 19(2), 15(2) and 21(4) of the Constitution 1992.

However, the mandatory provision in section 96(7) of Act 30 is that all offences listed therein were not bailable. In my view those decisions were not binding precedents but persuasive because section 96(7) was still the law. Even the dictum by Ocran JSC in the Gorman v the Republic could not be used as binding precedent even though it was a Supreme Court case because the Supreme Court in that case did not decide on the constitutionality of section 96(7) of Act 30.

It is only the Supreme Court that can interpret and strike out a provision in a statute as unconstitutional therefore rendering that provision otiose.

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