The Attorney-General (A-G) and Minister of Justice, Mrs Marietta Brew Appiah-Opong, says the recent Supreme Court decision declaring the law banning the granting of bail to murder and other first degree offenders as unconstitutional will not affect the work of the A-G’s Department.
“I respect the decision of the court, but it is important for the public to know the grant or otherwise of a bail is at the discretion of the court,” she explained.
She was reacting to the Supreme Court’s decision which said Section 96 (7) of the Criminal and Other Offences (Procedure) Act, 1960, (Act 30), was unconstitutional.
She said the A-G’s Department was only responsible for prosecutions and it was up to the courts to decide whether or not to grant bail to accused persons when they were arraigned.
“Ours is to plead with the courts to remand accused persons when the circumstance demands so, and it is for the courts to decide whether or not to grant our wishes,” Mrs Appiah-Opong told the Daily Graphic in an interview in Accra yesterday.
Asked if persons on first degree felony charges could now apply for bail, she answered in the affirmative and said, “The law on non-bailable offences no longer exists. It will be inequitable to say they cannot be granted bail”.
“On the grounds of equity, all persons who were refused bail because of Section 96 (7) of Act 30 can now apply for bail,” the Attorney-General said.
Background
Section 96 (7) (a) of Act 30, which was amended in 2002, provided that “a Court shall refuse to grant bail in a case of acts of terrorism, treason, subversion, murder, robbery, offences listed in Parts I and II of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (P.N.D.C.L. 236), hijacking, piracy, rape, defilement or escape from lawful custody”.
Section 96 (7) (b) of Act 30 further provides that a court shall refuse to grant bail “where a person is being held for extradition to a foreign country”.
In a 5-2 majority decision, the court, on May 5, 2016, held that the law was unconstitutional because it was inconsistent with Article 19 (2) (c) of the 1992 Constitution and, therefore, null, void and of no effect.
As a result of the Supreme Court’s decision, any court that has jurisdiction over the stated offences has the discretion to either grant bail or not and also set the appropriate bail conditions.
The court gave the order based on the powers conferred on it by Article 2 (2) of the 1992 Constitution.
Its decision took effect from May 5, 2016.
Judgement
In the lead judgement read by Mr Justice Jones M. Dotse, the court said it was the function of the Judiciary to grant or refuse bail and, therefore, any law that prohibited it from exercising such functions was unconstitutional.
“Who has the power to determine that the issue of bail has been judiciously exercised? It is certainly not the Executive. It is the function of the Judiciary by virtue of Article 125 of the Constitution,’’ it said.
The court also contended that the 1992 Constitution had under Article 14 (1) and 24 (1) already prescribed the situations under which the detention of an individual might be justified.
On whether its decision potentially posed a risk to the public, the court explained that there were substantive laid-down procedures under the law to cater for any risk.
It said Sections 96 (1-6) of Act 30 were enough to address any concerns which might arise out of the annulment of Section 96 (7) of Act 30.
The Chief Justice, Mrs Justice Georgina Wood, in her concurring opinion, said there was the need not to overburden the prisons and noted that the case marked a watershed in criminal jurisprudence.
Mrs Justice Wood accordingly commended the applicant, Mr Martin Kpebu, for his initiative, which will guarantee the rights and freedoms of all persons as enshrined in the 1992 Constitution.
Dissenting opinion
Those of dissenting view held that accused persons appearing to face trial was key and that was one of the main reasons for detaining persons charged with then non-bailable offences.
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