One of the greatest achievements of modern constitutional democracy is the recognition that liberty belongs to every person—not only the innocent but also those accused of crimes.
The presumption of innocence has become the golden thread running through every civilised criminal justice system. A person remains innocent until a court of competent jurisdiction proves guilt beyond reasonable doubt.
Yet that fundamental principle is increasingly being tested in Ghana. Recent public debate surrounding the bail conditions imposed on high-profile suspects, including Bernard Antwi Boasiako (Wontumi), Osei Assibey of the National Service Scheme, Adu Boahene and Dennis Miracles Aboagye, has divided public opinion.
While many support vigorous investigations into alleged corruption, lawyers and human rights advocates have questioned whether some of the bail conditions imposed by investigative bodies and the courts are so onerous that they effectively amount to a refusal of bail.
Debate
This debate transcends politics. Whether one supports or opposes the individuals involved is entirely beside the point. Human rights exist precisely to protect individuals when emotions run high and public opinion is divided.
The true question is whether Ghana's criminal justice institutions—including the courts, the Office of the Special Prosecutor (OSP) and the Economic and Organised Crime Office (EOCO)—are fully complying with the Constitution and Ghana's international human rights obligations when fixing bail.
International law provides a clear answer. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Ghana, declares that pre-trial detention should not be the general rule. Release may be subject only to conditions necessary to ensure that an accused person appears for trial.
The United Nations Human Rights Committee, in its authoritative General Comment No. 35, explains that detention before trial must be based on an individualised assessment of necessity. It must be reasonable, proportionate, and justified by concrete risks such as absconding, interfering with witnesses or committing further offences.
Authorities must also consider alternatives, including bail, before resorting to continued detention.
These principles are echoed across the democratic world. The European Court of Human Rights has repeatedly held that the seriousness of an allegation alone cannot justify prolonged detention or excessively restrictive bail conditions. Liberty may be restricted only where the State demonstrates a genuine necessity.
The same philosophy underpins Ghana's Constitution. Article 14 guarantees personal liberty. Article 19 entrenches the presumption of innocence. Neither provision permits the State to punish citizens before conviction.
This constitutional understanding received authoritative recognition in the Supreme Court's decision in Martin Kpebu v Attorney-General, where the Court reaffirmed that bail is a constitutional right in appropriate cases and that pre-trial detention must not become routine.
Unfortunately, the practical reality sometimes tells a different story.
A person may technically be granted bail but be required to produce multiple landed sureties within Greater Accra, justify ownership through extensive documentation, or satisfy financial conditions beyond the reach of even successful professionals.
Where those conditions are impossible to satisfy, the distinction between granting bail and refusing bail disappears. The accused remains in prison.
Human rights law judges reality rather than appearances. An unattainable bail condition is, in substance, a denial of liberty.
International standards identify several factors that courts should consider when fixing bail: Whether the accused presents a genuine risk of absconding; whether there is credible evidence of likely interference with witnesses or investigations; the accused's family ties, employment, residence and community connections; previous compliance with court orders; the financial means of the accused so that bail is proportionate rather than oppressive; and whether less restrictive measures—such as reporting requirements, travel restrictions, surrender of passports or periodic appearances before investigators—would sufficiently secure attendance.
Notably absent from these internationally accepted criteria are political affiliation, public outrage, media attention or the popularity of the accused.
Justice cannot fluctuate according to headlines. Nor can anti-corruption become a justification for weakening constitutional protections.
No serious observer disputes the importance of EOCO and the Office of the Special Prosecutor. Ghana loses billions of cedis through corruption and strong investigative institutions remain indispensable to national development.
However, anti-corruption agencies derive their legitimacy not only from prosecuting corruption but from respecting the Constitution while doing so.
The rule of law requires consistency. If ordinary citizens are entitled to reasonable bail, politically exposed persons must receive the same treatment.
Conversely, if politically unpopular suspects can be subjected to excessive bail today, the same precedent may tomorrow be applied to journalists, activists, businesspeople or any ordinary Ghanaian. The Constitution protects everyone or it protects no one.
The writer is a lawyer.
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