Remove ‘justified sureties’ requirement – Martin Kpebu calls for bail reforms

Private legal practitioner Martin Kpebu has reignited calls for significant reforms to Ghana's bail system, specifically targeting the 'justified sureties' requirement. His criticism follows the stringent bail conditions imposed by the Economic and Organised Crime Office (EOCO) on Dennis Miracles Aboagye, which included a substantial bail bond and the need for justified sureties. Kpebu argues that this requirement, which often necessitates proof of property ownership and extensive verification, creates an insurmountable barrier for many Ghanaians, effectively undermining the constitutional presumption of innocence and the right to personal liberty. The debate highlights the persistent tension between ensuring an accused person's appearance in court and upholding fundamental human rights in Ghana's criminal justice system.

The recent bail conditions imposed by the Economic and Organised Crime Office (EOCO) on Dennis Miracles Aboagye have once again brought Ghana's bail system under intense scrutiny. Private legal practitioner Martin Kpebu has vocally criticised these conditions, particularly the demand for 'justified sureties,' as being overly burdensome and practically impossible for many ordinary Ghanaians to meet. Aboagye, a former aide to a prominent political figure, was granted bail with a substantial bond and the requirement for multiple sureties, two of whom had to be justified, leading to significant challenges in securing his release.

Kpebu's intervention underscores a long-standing concern within Ghana's legal fraternity regarding the practical application of bail laws. The core issue revolves around how the requirement for sureties to prove ownership of assets, often through a cumbersome verification process, effectively transforms bail from a right into a privilege accessible primarily to the affluent. This article will delve into the statutory and constitutional framework governing bail in Ghana, analyse the practical implications and criticisms of the 'justified sureties' requirement, and argue for urgent reforms to ensure that bail serves its intended purpose without infringing on fundamental rights.

The right to personal liberty and the presumption of innocence are cornerstones of Ghana's criminal justice system, enshrined in Articles 14(1) and 19(2)(c) respectively of the 1992 Constitution. These constitutional guarantees form the bedrock upon which the country's bail jurisprudence is built. The primary legislation governing criminal procedure and bail is the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Section 96 of Act 30 outlines the general principles for granting bail, emphasising that bail should not be refused merely as a form of punishment.

A significant development in Ghanaian bail law was the landmark Supreme Court decision in *Martin Kpebu v Attorney-General* [2015] DLSC 3031, which declared Section 96(7) of Act 30 unconstitutional. This ruling effectively made all offences bailable, restoring full judicial discretion in bail matters and reinforcing the principle that liberty should not be denied solely based on the nature of the alleged crime. However, while the right to bail is now universal, the conditions attached to it remain a critical point of contention.

In Ghana, bail often requires an accused person to provide sureties – individuals who guarantee the accused's appearance in court. The contentious aspect arises with the 'justified sureties' requirement, where sureties must demonstrate their ability to pay the bail bond should the accused abscond, typically by proving ownership of property equivalent to the bail amount. This involves presenting property documents, followed by searches at the Lands Commission and valuation, a process that can be both time-consuming and costly. The Economic and Organised Crime Office (EOCO), established under the Economic and Organised Crime Office Act, 2010 (Act 804), is a specialised agency mandated to investigate and prosecute serious economic and organised crimes, and it possesses the authority to impose bail conditions during its investigations.

The 'justified sureties' requirement, while ostensibly aimed at ensuring an accused person's attendance at trial, presents significant practical hurdles that disproportionately impact ordinary Ghanaians. As Martin Kpebu highlighted, the process of finding individuals with registered property, verifying ownership through Lands Commission searches, and obtaining valuations is often complicated, time-consuming, and expensive. This effectively creates a two-tiered justice system where freedom is often determined by economic status rather than constitutional principles, undermining Article 17 of the Constitution which guarantees equality before the law.

Ghanaian jurisprudence, particularly the Supreme Court's decision in *Gorman v Republic* [2003-2004] 2 SCGLR 784, has consistently affirmed that judicial discretion in granting bail must be exercised judiciously and reasonably, not arbitrarily or capriciously. Bail conditions, therefore, must be proportionate and realistic, and those that are impossible or excessively difficult to satisfy may amount to a de facto denial of bail. Critics argue that the stringent conditions imposed by agencies like EOCO, especially in high-profile or politically sensitive cases, often serve as a form of pre-trial punishment, contrary to Section 96(4) of Act 30, which explicitly prohibits withholding bail as a punitive measure.

The challenges extend beyond the financial burden. The insistence on civil or public servants as sureties, or those with landed property, drastically narrows the pool of eligible guarantors, leaving many accused persons in custody despite technically being granted bail. While the Chief Justice's directives in 2019 clarified that sureties cannot be imprisoned for failing to satisfy bail terms, the forfeiture of property used for justification remains a significant risk, deterring many from acting as sureties. This situation not only strains the accused but also places undue pressure on family and friends, further exacerbating socio-economic disparities within the justice system.

Legal commentators and human rights advocates have consistently called for reforms, including developing comprehensive bail guidelines to promote consistency and prevent excessive conditions. Proposals often include limits on cash bail requirements, greater reliance on non-monetary conditions, and periodic review mechanisms for prolonged cases. The current practice, particularly the onerous 'justified sureties' requirement, often deviates from the spirit of the law, which aims to balance the accused's right to liberty with the need to ensure their appearance for trial, without resorting to punitive pre-trial detention.

The ongoing debate surrounding the 'justified sureties' requirement in Ghana's bail system underscores a critical need for reform to align practice with constitutional principles and international human rights standards. While the intent behind requiring sureties is to secure the attendance of accused persons, the current implementation, particularly the stringent justification process, creates an inequitable system that disproportionately affects those without significant assets. This effectively transforms bail from a fundamental right, rooted in the presumption of innocence, into a privilege for the economically advantaged.

Practitioners must continue to challenge excessive bail conditions through review and variation applications, advocating for proportionality and reasonableness in line with established jurisprudence. Policymakers, on the other hand, should consider legislative amendments to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), to provide clearer, less burdensome guidelines for sureties, potentially exploring alternative forms of security or non-monetary conditions. A concerted effort from the judiciary, legislature, and law enforcement agencies is essential to ensure that Ghana's bail system upholds the rule of law, guarantees equal access to justice for all citizens, and prevents pre-trial detention from becoming a de facto punishment.