Remand vs bail: Delicate balancing act

Last weekend’s ‘a luta’ by the Democracy Hub group in Accra was much smaller than the one organised by the NDC a week earlier.

But what it lacked in size, it more than made up for in terms of heat in the public square. The Democracy Hub protest last weekend against ‘galamsey’ and its consequent environmental degradation turned out to be anything but a stroll in the park.

By the end of it all, 39 protestors were arrested and herded into police cells, charged with various offences, including conspiracy to commit a crime (specifically unlawful assembly), unlawful assembly, causing unlawful damage, offensive conduct conducive to a breach of peace, assault on a public officer and defacement of public property.

What many do not know is what offences can be dug out from the statute books by prosecutors, dusted down and thrown at suspects over what may appear to be rather petty acts.

Remand versus bail

In all of this, perhaps, what pricked my particular interest was the matter of the 39 persons being remanded in custody for two weeks, following the refusal of the court to grant them bail upon their first appearance before a judge.

In my previous life in immigration work in the UK, bail applications on behalf of detained immigration offenders were quite routine in my caseload, so I have, over the years, developed a rather liberal streak in this matter, with a detainee’s entitlement to his or her liberty as my starting point.

This is premised on the position that fundamentally, every detained suspect is entitled to their liberty unless the prosecution can show good reason for that liberty to be interfered with.

Courts, law

The power of a court to grant bail is at its discretion, with various factors set out under s.96 of the Criminal and Other Offences Act (Act 30) for the judge to consider in conducting a balancing act.

These include whether the accused is likely to appear to stand trial, may interfere with witness or evidence or hamper investigations, may commit another crime while on bail or committed another punishable offence while on bail.

The law also provides guidelines in determining the likelihood of an accused absconding if granted bail: nature of the crime; nature of the evidence; severity of the punishment if convicted; accused’s prior bail conduct; accused’s fixed place of abode; accused’s employment and independent surety of good character.

While I reject the claim by some that the accused persons are being prosecuted merely for protesting against ‘galamsey’, I vehemently disagree with those who argue that they deserve to be remanded in custody to ‘teach them a lesson’.

Indeed, s96(4) of Act 30 instructs the courts not to refuse bail merely as a form of punishment.
It is rather tempting and perhaps understandable to zone in on this particular case because of the political temperature around it.

Already, I have come across claims that they are ‘environmental freedom fighters’, with demands for their immediate, unconditional release. But beyond this particular case, a dark truth around the whole business of remand gnaws away at our justice system and will sadly continue to do so long after media coverage has moved on to another cause.

Many criminal suspects remain on remand for many months or even years for minor offences that would have seen them gaining their freedom long ago, had they been properly tried, convicted and fully served their sentences.

Lost dockets, pointless, repetitive prosecution requests for more time and the inability of these mostly poor people to access lawyers or meet bail surety conditions even where a judge deems it right to grant bail have meant many continue to languish on remand, almost forgotten by the system.

Justice for All Programme

Admittedly, some work has been done under the Justice for All Programme, instituted in 2007 to adjudicate remand cases from time to time through special in-prison mobile court sittings.

In May this year, www.graphiconline.com reported that 12 remand prisoners at the Nsawam Medium Security Prison regained their freedom when they were discharged by an ad hoc court in the penitentiary as part of the Justice for All programme. Also, ten others were granted bail whilst two were refused bail.

The website also reported that the programme, which started in 2007, has significantly reduced prisoner overcrowding in Ghana, from 51 per cent in December 2018 to 42.6 per cent in May 2024.

While this is of some comfort, the fundamental problem of unduly long periods of remand stubbornly remains.

Digitalisation?

In other jurisdictions, the use of technology to employ curfews and electronic tagging of certain suspects released on bail effectively ensures the accused’s right to liberty while providing the state with monitoring powers and an assurance that he or she will turn up for trial.

We are not there yet with such technology in our criminal justice system, but we must find a way around the challenges of how to ensure suspects on bail turn up for trial while making the liberty of every accused person one of paramount importance.

Perhaps, this is an area Dr Bawumia may wish to pursue in his digitalisation drive should he, by God’s grace, win the 2024 elections.

I do sincerely hope the 39 suspects are granted bail by the courts on their next appearance. But eventually, we must confront and deal with the ugly reality of unduly long and patently unjust periods of remand in our criminal justice system.

It is an untenable scar on our collective conscience as a nation.

Rodney Nkrumah-Boateng,
Head, Communications & Public Affairs Unit,
Ministry of Energy.
E-mail: rodboat@yahoo.com