'Amend Criminal Procedure Code'

September 22, 2008 pg 3

Story: Musah Yahaya Jafaru
THE Executive Director of the Centre for Public Interest Law, Dr Dominic Ayine, has proposed an amendment to a provision in the Criminal Procedure Code which restraints judges from granting bail to people suspected of certain offences.
Section 96 (7) of Act 30 of the Criminal Procedure Code puts offences including murder, rape, defilement and narcotic in the list of no bail offences.
Dr Ayine said the law had the tendency to infringe on the liberty of citizens and also interfere with the powers of the judiciary, since the inclusion of offences on the list of no bail offences was done by the legislature.
He was speaking at a conference on, “Bail, Liberty, and Constitutionality: A Separation of Powers Perspective of the No-Bail Amendments to the Criminal Procedure Code”.
Dr Ayine said the no-bail law seemed to spring from a parliamentary desire to protect the greater community from people accused of especially heinous or harmful crimes.
“This is a commendable goal, and it is Parliament’s duty to protect the public, but it does not necessarily follow that this manner of protecting the community is desirable or even effective,” he said.
According to him, the question was perhaps one of legislative versus judicial competence, regarding which branch of government was better qualified to determine when crimes could be prevented by keeping accused citizens in custody.
Dr Ayine argued that a ruling government could abuse the no-bail law by impressing on the legislature to introduce other offences, such as treason, to gag political opponents.
For instance, he said, in the run up to elections, political opponents could be accused of crimes on the list of no bail offences and consequently put behind bars, without the right to bail, till the elections were over.
Besides, Dr Ayine said, denying judges the right to consider the option of bail was effectively stealing the “final judicial power” vested in the judiciary by Article 125 (3) of the Constitution.
He argued that although protecting the public was a legislative function, “that does not allow Parliament to do anything it wishes to further this goal”.
He indicated that there were clear constitutional limits to Parliament’s powers, saying one such limit was: “Neither Parliament nor any other person whatsoever shall interfere with judges or judicial officers or other persons exercising judicial power in the exercise of their judicial functions”.
Dr Ayine said there were practical reasons for the judiciary to be responsible for determining whether a suspect risked perpetrating a crime, endangering the community or avoiding trial while on bail.
One such reason, he said, was that judges, by their profession, were well read on rates and occurrences of recidivism and general criminal behaviour.
He said whereas Parliament was responding to general, perceived threats, the judiciary was able to individually weigh the situation of each accused and determine, based on elements such as his or her financial information, family situation, gang of involvement, drug habits and criminal history, whether or not an accused was likely to be a danger to the community if released.
“The error of margin for individual partiality exists, of course, but that is no more harmful than the current situation: Ghana’s jails are being filled with suspects of certain enumerated crimes, whether or not they have any motive or proclivity to commit crimes if released,” he said.