Non-bailable offences declared unconstitutional

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a4fedafed8c6ff054bdc6c486ee571ff_LThe Supreme Court has declared as unconstitutional the law that bars persons accused of certain offences from being granted bail.

It said Section 96 (7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which was amended in 2002, provided that “a court shall refuse to grant bail in a case of terrorism,  treason, subversion, murder, robbery, offences listed in Parts I and II of the Narcotic Drugs (Control, Enforcements and Sanctions) Law, 1990 (P.N.D.C.L. 236), hijacking, piracy, rape and defilement or escape from lawful custody or where a person is being held for extradition to a foreign country’’.


In a 5-2 majority decision, the panel 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 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 yesterday.


The case was filed by a private legal practitioner, Mr Martin Kpebu, in February 2015.

He sought the intervention of the highest court to declare that “Section 96 (7) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633), contravened articles 15 (2) and 19 (2) (c) of the 1992 Constitution and was, therefore, null, void and of no effect.’’

In his writ to invoke the original jurisdiction of the apex court, he stated that Section 96 (7) of Act 30 violated the fundamental rights of individuals as guaranteed under Article 14 of the 1992 Constitution.

The Attorney General was the defendant in the case.

Statement of Case

According to the statement of case, bail was directly linked with liberty, which was a fundamental human right guaranteed by Article 14 of the 1992 Constitution.

“The mere incarceration and refusal of bail may cause physical and mental torture to the accused, particularly considering the conditions of our prisons and the fact that a person shall remain uncompensated if he is found innocent and is acquitted,’’ he said.

Mr Kpebu also contended that the law violated the principle of the country’s criminal jurisprudence which states that no one shall be presumed guilty until and unless proven guilty.


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 the Judiciary 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 articles 14 (1) and 24 (1), already prescribed the situations under which the detention of an individual might be justified.

“Thus the Constitution itself has circumscribed the situations under which a person may be deprived of his liberty. Therefore, Section 96 (7) of Act 30 that seeks to add to this list is inconsistent with the constitutional provision,’’ it held.

Is there a risk?

Answering a question if its decision had the potential to pose a risk to the public, the court said there were substantive laid down procedures under the law to cater for any risk.

It said Section 96 (1-6) of Act 30 was 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, further held that there were 256 people on pre-trial detention at the Nsawam Prison as of May 4, 2016.

She said there was the need not to overburden the prisons and noted that the case marked a watershed in criminal jurisprudence.

She, accordingly, commended the applicant, Mr Kpebu, for his initiative, which would guarantee the rights and freedoms of all persons as enshrined in the 1992 Constitution.

Other panel members who agreed with the majority decision were Justices Jones Dotse, Anin Yeboah, Joseph Bawa Akamba and A. A. Bennin.

Dissenting opinion

Justices Sophia Adinyira and Sulley N. Gbadegbe had a dissenting opinion and held that Section 96 (7) of Act 30 was constitutional.

They were of the view that accused persons appearing to face trial was key and that was one of the main reasons for detaining persons charged with the non-bailable offences.

,Mr Gbadegbe, who read the opinion, said they belonged to the school of thought that advocated the revision of Section 96 (7) but not among those calling for a repeal.

He, nonetheless, commended the applicant for taking such bold initiative.

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ABOUT: Nana Kwesi Coomson

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A Freelance Journalist, Entrepreneur and Philanthropist. Editor-in-Chief of A contributory writer for Ghanaian Chronicle Newspaper. An alumnus of Adisadel College where he read General Arts. He holds first degree in Bachelor of Arts from the University of Ghana; Political Science (major) and History (minor). He has also pursued MSc Corporate Social Responsibility (CSR) and Energy with Public Relations (PR) at the Robert Gordon University in the United Kingdom. His mentors are Rupert Murdoch, Warren Buffet, Sam Jonah, Kwaku Sakyi Addo and Piers Morgan

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