Across Ghana in recent years, bail conditions imposed on suspects and accused persons have become increasingly draconian, often involving astronomical cash sums, onerous surety and justification requirements as well as restrictive travel/reporting conditions that amount to de facto pre‑trial punishment.

Many of these bail decisions have become more pronounced in the last eight (8) years. This trend undermines fundamental constitutional and human‑rights protections and departs from the settled jurisprudence concerning bail in Ghana.

Constitutional and Statutory Foundations of Bail 

• The right to personal liberty is enshrined in Article 14(1) of the 1992 Constitution of Ghana and states: “Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law -

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or

(b) in execution of an order of a court punishing him for contempt of court; or 

(c) for the purpose of bringing him before a court in execution of an order of a court; or

(d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or

(e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or

(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or

(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”

• The presumption of innocence is constitutionally guaranteed under Article 19(2)(c) of the Constitution, which provides that “a person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty.”   

• The statutory law regulating bail is the Criminal Procedure Act, 1960 (Act 30).   

Historically, certain offences were designated non‑bailable under Section 96(7) of Act 30 (e.g., murder, treason, rape, robbery, etc.). However, in a landmark ruling in Martin Kpebu v Attorney‑General [2016], the Supreme Court of Ghana declared Section 96(7) unconstitutional, thereby restoring the Courts’ discretion to grant bail in all offences.  

Thus, today, no offence is automatically non-bailable. Rather, bail must be considered on a case-by-case basis, consistent with constitutional protections.   

Judicial Discretion: Not a Blank Cheque for Excesses

While bail is discretionary, Ghanaian jurisprudence imposes clear limits on the exercise of that discretion. In Gorman v The Republic [2003–2004] 2 SCGLR 784, the Supreme Court held that bail decisions must be “judicially exercised” and not arbitrary or capricious. The Court rejected the notion that bail is a privilege only for certain offences, especially in light of constitutional guarantees. Moreover, Courts must consider the factors set out in Section 96(5) of the Criminal Procedure Act, (Act 30) when granting bail; namely, whether the accused is likely to appear for trial, interfere with witnesses or investigations, commit further offences if released or has a prior record of criminality. 

It is therefore abundantly clear that bail cannot be used as a form of punishment or tied to an alleged sum of money on a charge sheet, as this is not supported by the current position of the law. 

The Problem of Excessive Bail Conditions 

Despite these Constitutional and Statutory guardrails, there has been a growing pattern of bail conditions that effectively defeat the purpose of bail (i.e., to allow accused persons their liberty pending trial). Some of the concerns are:

1. Astronomical bail sums: In several high-profile corruption and economic crime cases, Courts and the Law Enforcement agencies have imposed bail in tens or even hundreds of millions of Ghana Cedis (or equivalent huge surety requirements), amounts that most accused persons or their sureties can never meet. This transforms bail into a form of pre‑trial detention for those without financial means and raises serious questions about whether bail is being used as a realistic path to pre-trail liberty.

• Bail exists to protect the accused’s right to personal liberty while awaiting trial. Excessive bail conditions convert this safeguard into a mechanism for de facto pre‑trial detention, which invariably undermines both Article 14 (liberty) and Article 19 (fair hearing) rights guaranteed under the Constitution. 

•  Repudiates Judicial Discretion and Constitutional Mandate: 

The discretion to grant bail must be exercised within reasonable bounds, not as a tool for retribution or deterrence. Excessive bail reflects a skewed exercise of discretion, contrary to the principles enunciated in Gorman v The Republic supra and subsequent cases.

• In addition, it creates inequality and discriminates against the poor:  Wealthy or well‑connected accused persons may meet high bail sums, while poor or marginalised suspects remain detained, thereby producing two systems of justice.

• Threat to the Rule of Law and Public Confidence: When bail becomes a function of financial capacity rather than risk assessment, it erodes public confidence in the fairness and impartiality of the criminal justice system.

• Prohibitive Surety/Property Conditions: The requirement for multiple sureties providing property equal to multi‑hundred‑million‑cedi bail means that only those with extraordinary resources (or access to wealthy guarantors) could realistically meet these conditions.

• Unequal Access to Bail: Given the financial demands, many accused persons, especially those from modest backgrounds may remain in custody simply because they cannot meet bail conditions, even if they pose no real flight risk or threat to public safety. 

• Potential for Abuse/Public Perception of Injustice: When bail becomes synonymous to a financial barrier, it undermines core principles like the presumption of innocence, equality before the law and the right to liberty. 

• Excessive insistence on sureties and justification: Courts sometimes demand multiple sureties, each exposing themselves to full liability, or require property justification that is unrealistic or disproportionate to the accused person’s means, effectively excluding low‑income suspects from bail.   

1. Other onerous conditions: Conditions such as surrender of passport, frequent reporting, and travel bans which go beyond what is necessary to secure the attendance at trial and serve instead to punish or hinder the accused or suspect defeats the constitutional safeguards. These excessive conditions often amount to “bail in name only”; the accused remains deprived of their liberty. 

1. Most importantly, if the discretion to grant bail is not exercised in accordance with Article 296 of the 1992 Constitution and Section 96(5) of the Criminal Procedure Act, (Act 30), the danger is that security agencies like Economic and Organised Crime Office (EOCO), the Bureau of National Investigations (BNI), The Ghana Police Service, Office of the Special Prosecutor (OSP) and other security agencies as well as Courts desirous of using bail to punish and abuse the rights of suspects and accused persons may simply impose unreasonable and onerous bail conditions as a justification for denying accused persons their pre-trail freedoms and liberties guaranteed under the Constitution pending the proving of the charges levelled against them by the prosecution or accusers.

The Constitutional and Jurisprudential Imperative for Reasonable Bail

In the wake of Martin Kpebu vrs AG, which struck down section 96(7) of Act 30, bail is no longer a privilege reserved for minor offences; it is potentially available to all accused persons, subject only to proper judicial discretion guided by the Constitution and statutory protections.   

Courts must remember that bail is not punishment; it is a procedural safeguard anchored in Constitutional rights. As one commentator put it recently, “the 1992 Constitution structures bail law, intending to reduce the number of people behind bars merely because they could not afford pre‑trial freedom.”  

Conclusion and Call to Action 

The pattern of excessive, punitive bail conditions which has become more pronounced especially in the last eight (8) years must be challenged. Bail must remain a genuine opportunity for pre‑trial liberty, not a financial barrier to justice. Courts and the entire judiciary have a vital role to play in resisting the drift towards punitive bail in the name of deterrence or public outrage. 

By way of recommendation, I respectfully call on: 

• Our revered Judges and Magistrates to rigorously apply the principles of reasonability and proportionality which truly secures the attendance of an accused person to trail when setting bail terms; 
• Defence counsel and human‑rights advocates to challenge excessive bail orders and to apply for variation/review where justified;
• Policy‑makers and legal reform bodies should consider guidelines or statutory reforms to ensure that bail conditions remain within reasonable bounds (e.g., caps on cash sums, enhanced use of surety and non‑monetary conditions as well as periodic review mechanisms). 

Ultimately, bail is not meant to punish, but to preserve dignity, liberty and the presumption of innocence until proven guilty. If Ghana is to uphold the rule of law and equal justice for all, bail should remain a shield and not a weapon. 

The writer, Gift E. Kofi Tsamah, Esq, is a private legal practitioner based in Accra, Ghana. He holds LL.M (Dundee-UK), PgDL (Ulaw-UK), CEMBA (KNUST-GHANA), QCL (GSL-GHANA), LL. B (GIMPA-GHANA), B.A (UG-GHANA). He can be reached on tsamahg@yahoo.com