Bail: A right or a privilege?
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Although the 1992 Constitution of Ghana provides safeguards, the realisations of these rights have been theoretical rather than practical.
Article 14(4) of the Constitution provides that “where a person arrested, restricted or detained 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”.
Despite these provisions, this right has been consistently violated by some agencies in the justice delivery system. The result is that indigent persons arrested have inadequate and unequal access to justice through the formal legal system. Without equal access to the law, the system not only robs the poor of their only protection, but it places it in the hands of their oppressors.
The Commonwealth Human Rights Initiative (CHRI) Africa Office, through its Justice Centre’s project, has since September, 2011, to April, 2013, monitored and examined cases that go to specific courts and has realised that the abuse of the arrested person’s right to bail by some judges is so prevalent in Ghana.
The 1992 Constitution structures the state's bail law with the goal, among other things, of reducing the number of people behind bars solely because they could not afford to pay for their pretrial freedom.
This includes an expansion of the forms in which bail could be set, giving judges a range of options, such as unsecured appearance or surety bonds, that would be easier for low income defendants.
Unfortunately, our research into bail for non-felony defendants indicates that some judges invariably set bail in the most financially onerous forms-cash or secured bonds. They also set bail at a level the defendants cannot afford.
In 70 per cent of non-felony bail cases recorded in CHRI’s Justice Centre’s database from September 2011 to April 2013, some judges set bail between GH¢1,000 and GH¢2,000, with bail at GH¢1,000 accounting for 30 per cent of the cases.
This may not seem like a lot of money but for people scrambling to pay their rent each month or who live on the streets, a GH¢1, 000 bail is as impossible to make as that of GH¢100,000. Almost nine out of 10 non-felony defendants who have bail set above GH¢200 were unable to post it at arraignment.
Too poor to “buy” their pretrial freedom, they spend an average of two weeks behind bars, accused of low level offences such as breach of peace, getting into a fight or stealing. Sending non-felony defendants to jail for want of a few hundred cedis cannot be squared with basic notions of fairness, the right to liberty and the right to equality under the law.
In the eyes of the law, pretrial detention is not punishment but a precautionary measure to ensure defendants show up in court. From the perspective of those enduring days and nights behind bars, this is a distinction without a difference.
Sadly, the law gives judges broad discretion to make release and bail decisions .There is nothing in the legislative history, however, to suggest the Legislature meant bail to operate as a sub rosa vehicle for sending non-felony defendants to jail pretrial.
Anyone who has spent any time in Ghana’s magistrate courts knows most defendants are poor if not destitute. Why then do some judges set bail at less than GH¢50.00 in only two per cent of non-felony cases recorded for people who are innocent until proven guilty?
Does this presuppose that some judges deliberately set bail at levels they know defendants cannot afford because they believe detention is necessary to ensure the defendants appear in court? Well, they may not realise 84 per cent of non-felony defendants who, according to the Justice Centres database, are released pretrial show up for the court proceedings; only six per cent miss a court appearance and do not return voluntarily within 30 days.
This article has focused on non-felony defendants because pretrial detention for persons accused of minor offenses seems particularly unjust. Although it happens every day, and is so routine as to be almost invisible, confining people in cells/jail simply because they are too poor to ‘pay’ for their freedom is a serious inequity in a criminal justice system that aspires to be just.
It is time for the legal community to press for much needed reform. We all dream of a Justice system that will once again play its due role in the protection of the people and their rights and freedoms, but until the judiciary play their role in ensuring that the rule of law prevails, our dreams would be nothing but big jokes.
By Ruth Guribie
The writer is the Project Assistant, Access to Justice CHRI- Africa Office