The Grant Of Bail: The Novel Decision In Martin Kpebu (No.2) V Attorney-General

The recent decision of the Supreme Court in Martin Kpebu v Attorney-General has finally settled the law on the grant of bail and other related offences stated under section 96(7) of Act 30 as amended by section 7 of the Criminal Procedure Code (Amendment Act, 2002 (Act 633) and as further amended by section 41(1) (a) of the Anti-Terrorism Act, 2008 (Act 762).

According to the plaintiff, section 96(7) of Act 30 contravenes articles 15(2) and 19(2)(c) of the Constitution 1992 and is therefore null and void and of no effect. I will quote in extenso the provision in section 96(7) of Act 30 as:

“A court shall refuse to grant bail In a case of treason, subversion, murder, robbery, narcotics, hijacking, piracy, rape, defilement or escape from lawful custody; or

Where a person is being held for extradition to a foreign country. The relevant provisions of articles 15(2) and 19(2) (c) of the Constitution 199 read respectively as follows:

“15(2) No person shall, whether or not he is arrested or detained, be subjected to torture or other cruel, whether or not he is arrested, restricted or detained, be subjected to any other condition that detracts or is likely to detract from his dignity and worth as a human being.”

“19(2) A person charged with a criminal offence shall, be presumed to be innocent until he is proved guilty or has pleaded guilty.”

Professor Henrietta Mensa-Bonsu, writing on the topic: the right to Bail, whose Right? Statute, Judge-made law and the Constitution 1992, (and published in the in the January-June 2014, Vol. 3, No. 1, Banking and Financial Law Journal of Ghana (as stated at pages 199-223), gave an overview of how the issues on bail in Ghana have perceived in the following terms, as follows:

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