Can police detain my brother for five days without trial?
Dear Mirror Lawyer, My brother was arrested recently by the police and was detained. When I went to the police station, the case officer handling the matter informed me that my brother owes his business partner by name Alhaji Sulieman an amount of GH¢ 10,000 given to my brother as a loan to cushion his business.
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According to the police, who I am sure have been bribed by Alhaji, my brother had refused to pay Alhaji his money; hence, the arrest.
My brother in his defence said that the money along with his business capital was lodged in his bank account held at the erstwhile UT Bank and which he had since been trying his best to retrieve but to no avail.
Alhaji has been a longtime family friend since the 80s when we all lived at Fante New Town. I was shocked and utterly disgusted that Alhaji could cause the arrest of my brother who is like a son to him. Lawyer, is that how to treat a son?
The police have not done anything about the matter since the arrest and have kept my brother in cells for over five days now without processing him for court. They claim Alhaji wants my brother to be punished.
We were allowed to take some food to him but that has been the extent of the help offered by the police in this matter.
Is the police right in detaining my brother for that long?
Kuukua Essien, Accra
Dear Kuukua, I understand these are trying times for your family and I sympathise with you.
The Ghana Police Service as provided for by Article 190 of the 1992 Constitution was set up as a service to prevent and detect crime, apprehend offenders, and maintain public order and the safety of persons and property.
Despite so many challenges, the police service is doing a great job and they deserve recommendations.
However, it is not within the ambit of the police to arrest someone for a default in the repayment of a loan simply because it is not a crime under our laws. The Police do not have the mandate within our laws to be debt collectors.
Therefore, it was contrary to the law that the police should have arrested your brother in such a situation as you have described.
As you indicated above, the police have held your brother for up to five days and have not brought him before a court for a hearing.
Our constitution is clear that a person who is arrested, restricted or detained for the purpose of bringing him before a court in execution of an order of a court or upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana and who is not released shall be brought before a court within 48 hours after the arrest, restriction or detention.
It is for this reason that the Supreme Court ruled in Martin Kpebu v Attorney-General [December 18, 2019] that some courts must sit on weekends and public holidays and even during strike actions to protect the liberty of individuals.
The police cannot hold any person for more than a period of 48 hours without bringing the person before a court regardless of the observance of any holiday or weekends that passed after the arrest, restriction or detention of the person.
Further, the Supreme Court has also ruled in Cofie v Hermans v [1997] that the police are not debt collectors so they have no power to arrest a debtor on a complaint by a creditor in a civil case and hold that person in custody until the debt is paid. Their claim that Alhaji wants your brother punished is wrong in law and not backed by any law. The police can even be brought to law for doing that.
Thus, the actions so far taken by the police are unconstitutional, illegal and a blatant breach of the constitutional rights of your brother.
