ABSTRACT

The practice of the court that requires immovable property in the nature of landed property secured by title deeds or land certificates in order to execute criminal bail in Ghana is examined in this legal argument. In this paper, I argue that although bail is a constitutional procedure intended to strike a balance between the state’s interest in justice and the accused’s right to personal liberty, the regular requirement of landed collateral turns a constitutional right into an economic privilege. With data from the Ghana Statistical Service, this practice creates a wealth-based dual justice system where only a small portion of Ghanaians who own officially registered landed property or have lease documents on their land benefit. While the impoverished face harsh, protracted pre-trial confinement, the wealthy are granted rapid pre-trial release. By analyzing the 1992 Constitution of the Republic of Ghana, the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), and significant rulings such as Martin Kpebu v. Attorney-General and Gorman v. The Republic, I demonstrate that the stringent requirement of immovable property violates the presumption of innocence, the right to equality and freedom from discrimination, and the right to personal liberty. The conclusion drawn from the discussion is that this practice of Ghanaian court in such engagement constitutes a systemic constitutional violation against the poor and vulnerable in society. As a result, I recommend a Practice Direction from the Chief Justice and/or legislative reforms to regulate the grant of bail rather than leave it to judges’ discretion.

INTRODUCTION

The protection of individual liberty against the coercive powers of the state is the cornerstone of any democratic criminal justice system. The history of bail in Ghana has been a struggle between constitutional supreme mandates and regulatory restrictions. In the past, Section 96(7) of the Criminal and Other Offences (Procedure) Act 1960 Act 30 declared several crimes to be “non-bailable.”[1] But in the historic case of Martin Kpebu v. Attorney-General (No. 2)[2], the Supreme Court of Ghana radically reorganized criminal jurisprudence. The Supreme Court ruled that all legislative bail restrictions were illegal, proving that bail is an essential constitutional right that stems directly from the presumption of innocence.

Despite this significant win for constitutionalism, the legislative prohibitions have been replaced by a more subtle economic barrier; that is the introduction of onerous and unreasonable bail conditions, particularly the need that landed or immovable property be used as collateral. This replacement comes from no other arm of government other than the judiciary itself, which is to be the gatekeeper of justice. Normally, lawyers will hear concluding rulings on bail conditions from judges and magistrates, such as “…Bail is granted in the sum of GHC 100,000 with two sureties, each to be justified by landed property within the jurisdiction.” These rulings create an illusion even though a judge or magistrate may technically “grant” bail to an impoverished individual accused of a minor or bailable offense. This legal argument offers a thorough analysis of this practice. It asserts that requiring immovable property transforms bail into a financial trap that punishes poverty, violates the text and spirit of the 1992 Constitution, and creates an unlawful caste system within Ghana’s criminal administration. It is therefore important to examine critically the statutory framework in the grant of bail under Ghana’s Criminal Justice System and the discretion of the judiciary, particularly, trial judges.

THE STATUTORY FRAMEWORK AND JUDICIAL DISCRETION

The power of Ghanaian courts to grant bail and attach conditions is governed by Section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).

A. Statutory Framework under Act 30

Section 96(1) empowers a court to release an accused person upon entering into a recognizance or bond, with or without sureties, conditioned for their appearance before the court at a specified time and place. This means the core foundation of the grant of bail to an accused person is that, he will be available to stand trial anytime he is invited by the court. Further, Section 96(3) mandates that “the amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.” Additionally, Section 96(5) and (6) detail some of the factors a court must consider when determining whether to grant or refuse bail. These include:

• The nature and seriousness of the offense;
• The nature of the evidence in support of the accusation;
• The severity of the potential punishment;
• Whether the defendant, having been released on bail on a previous occasion, has willfully failed to comply with the conditions of the bond entered into by the defendant on that occasion;
• The place of abode of the accused person
• Whether the sureties are independent, of good character and of sufficient means.

B. The Scope of Judicial Discretion

The legislature does not specify in Act 30 that the default or required method of justification must be immovable property. The selection of conditions is solely up to the judge. However, judicial discretion is not a free pass for capricious behavior, as the Supreme Court pointed out in Gorman v. The Republic.[3] The court ruled that the presumption of innocence in Article 19(2) of the 1992 Constitution was necessary but not a sufficient ground for the grant of bail. The grant of bail is subject to judicial discretion. Nonetheless, such discretion must not be used arbitrarily or capriciously, but rather in a judicial and reasonable manner within well-defined constitutional limitations. A court, therefore, does not utilize its judicial discretion when it immediately requests title deeds without first performing an empirical evaluation of the accused’s financial capabilities. It rejects the legal requirement that bail “shall not be excessive” in favor of an oppressive systemic practice. When courts are determining excessiveness and harshness of the bail, they are required to defer to the social and economic reality of the accused and Ghana as a whole and not to engage in arm chair discretionary powers.

THE SOCIOLOGICAL AND ECONOMIC REALITY OF GHANA

Proponents of sociological jurisprudence such as Roscoe Pound, Rudolf Von Jhering, Williams James, Karl Llewellyn, Max Weber, Karl Max and Baron de Montesquieu have argued that law must not separate itself from the social world and realities of society.[4] Additionally, Roscoe Pound, one of the core legal experts of sociological jurisprudence argued that law must balance competing interest between individual, public and social demands or interests. To Pounds, the purpose of law is social engineering and this engineering must achieve the maximum satisfaction of human wants with the least amount of societal conflict or resource loss.[5] Therefore, the law on bail must be placed within Ghana’s socioeconomic realities in order to see why demanding landed property by judges is fundamentally discriminatory. The law functions within a society characterized by systemic inequity, not in a vacuum.

In Ghana, the realities of Land Tenure and Ownership system is that, the great majority of common Ghanaians do not possess officially registered landed property or homes in their own names. Even in Ghana as a country, not all the sixteen regions are zoned or demarcated as registrable district. As a result, in most places in Ghana, the Lands Commission cannot issue land title certificates. Moreover, many people who possesses lands in Ghana do not have lease documents. Ghana’s land tenure system is infamously complicated, with customary land management, stool lands, skin lands, and family holdings predominating.[6] Formal title registration under the Land Act, 2020 (Act 1036) is a costly, time-consuming, and bureaucratic process that is primarily used by corporations, privileged families, and the rich.

These sociological challenges of land tenure system in Ghana have created economic impossibility for the indigents, particularly when it comes to getting a landed documents as security or justification for a bail. Obtaining a registered land title or building property is unachievable for the typical Ghanaian who works in the informal sector or earns the national minimum wage. When the court imposes an immovable property requirement on bail, it sets a bar that more than 80% of people are unable to meet on their own, as per data from the Ghana Statistical Service.[7] The result is that the impoverished defendant is required to stay in pre-trial incarceration for an undetermined period of time or become victims of dishonest “professional sureties,” popularly known as “bail contractors” who lease property documents to impoverished families for outrageous, unlawful sums of money. When this happens, poor people are essentially deprived of their fundamental right to liberty by the court’s insistence on landed property. In the subsequent submission, it is important to analyse the constitutional breaches against the poor in accordance with the 1992 Constitution of Ghana.

CONSTITUTIONAL ANALYSIS OF THE BREACH AGAINST THE POOR

A. Violation of Article 17: The Right to Equality and Non-Discrimination

Article 17(1) of the 1992 Constitution explicitly states that “all persons shall be equal before the law.” Article 17(2) prohibits discrimination on grounds including “gender, race, colour, ethnic origin, religion, creed or social or economic status.”[8] The phrase “economic status” was intentionally included by the framers of the Constitution to protect marginalized, low-income citizens from institutional oppression. Therefore, the judicial practice where bail is conditioned on landed properties makes it easy to comply for wealthy accused and the poor accused is unable to provide deed documents forcing them into remand in overcrowded prisons. An unconstitutional distinction based only on economic position is produced by this functional result. Based on their property holdings, two people accused of the same crime are treated differently by the state’s criminal justice system. Article 17 is directly violated by this behavior.

B. Violation of Article 14: Protection of Personal Liberty

“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in accordance with procedure permitted by law,” according to Article 14(1). Additionally, Article 14(4) stipulates that an accused person must be released either unconditionally or under reasonable circumstances if they are not tried within a reasonable amount of time. The Supreme Court made it clear in Martin Kpebu v. Attorney-General that pre-trial imprisonment ought to be the exception rather than the rule. The “grant” serves as a de-facto detention order when a court sets bail requirements that the accused cannot meet. By claiming to allow freedom while guaranteeing confinement through economic restrictions, the court evades the guarantees of Article 14. This turns judicial proceedings into a tool for arbitrary deprivation of liberty, violating the core tenets of the constitution.

C. Violation of Article 19(2)(c): The Presumption of Innocence

Everyone accused of a crime is “presumed to be innocent until he is proved or has pleaded guilty,” according to Article 19(2)(c). This presumption’s inevitable corollary is that a person should not be punished before a court of competent jurisdiction has proven their guilt beyond a reasonable doubt. The argument, therefore, is that, an impoverished person is essentially serving a prison term without a conviction when they are placed on remand for months or years due to their inability to provide a land certificate. This reduces the operational authority of Article 19(2)(c), shifts the burden of proof, and forces the impoverished to endure state-imposed punishment based on suspicion.

THE SINS ENUMERATED: STAGGERING BILLIONS AND THE TYRANNY OF LANDED JUSTIFCATION BY THE COURTS

The primary sin of the modern judiciary lies in its total disconnect from the statutory limits placed on its own discretion. Section 96(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) states clearly:

“The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.” Despite this clear command, recent history reveals an alarming trend of punitive, mathematically absurd bail sums.

Some Selected Manifestations of Excess

1. The 2025 case of the National Signals Bureau (NSB): When Kwabena Adu Boahene, the immediate former Director-General of the NSB, and his wife, Angela Adjei-Boateng, were tied to a combined police inquiry bail condition totaling an astounding GH₵200 million (GH₵120 million for the husband and GH₵80 million for the wife), the High Court (Criminal Division) caused a stir. The husband's bond was only reduced to an astounding GH₵80 million to be supported by landed property, even after a further judicial review and variation.
2. The National Service Scheme Scandal: In an even more dramatic move, the High Court set a staggering GH₵800 million bail bond for Osei Assibey Antwi, the former Executive Director of the National Service Scheme, which was subsequently reduced to GH₵623 million. Critics pointed out that in order to satisfy the state's expectations, "they might even have to bring Jesus Christ himself as a bail condition" because such criteria were so disconnected from local economic reality.
3. The IMCCoD Case (2026): After Dennis Miracles Aboagye, the former head of the Inter-Ministerial Committee on Customs and Digitalization (IMCCoD), was processed by the Economic and Organised Crime Office (EOCO) and the High Court, he was given a GH₵50 million bail that required three sureties, two of which had to be justified by immovable property. This sparked public discussions.
4. The case of Mr. Hanaan, former CEO of Ghana Buffer Stock Company whose GHC 100 million bail was also supported by landed estates.
5. Although I have had several bail application experiences personally as a lawyer, my mind was blown into disarray when an accused person who I represented was granted bail but could not meet the conditions. For almost a month, he was in custody and then a variation application was made to substitute the same bail amount conditioned upon landed property justification with a movable property of same value was refused by the circuit court.

Often times, prosecutors frequently claim that these numbers represent the amounts purportedly lost or stolen, but this reasoning confuses the goal of bail. The main goal of a bail is to ensure that the accused will appear in court again, not to obtain early asset recovery or cause financial devastation before a single witness testifies.

Even worse, it creates an impractical barrier to include a clause requiring large multi-million cedi amounts to be supported by real estate. Even wealthy people are forced into protracted imprisonment in a nation where formal land titling under the Land Act, 2020 (Act 1036) is difficult and time consuming.

COMPARATIVE GHANAIAN CASE LAW AND JUDICIAL WARNINGS

Although systematic practice has lagged behind progressive rulings, the Ghanaian judiciary has occasionally acknowledged the risks associated with exorbitant bail conditions.

A. The Reasonability Principle: Gorman v. The Republic v. Gorman

The Supreme Court stressed in Gorman v. The Republic[9] that the main goal of bail is to guarantee the accused’s presence at their trial. The court stated that although the state has a right to keep suspects from fleeing, the restrictions put in place must be commensurate with that risk. This proportionality principle is violated when land title deeds are automatically required, regardless of whether the accused is flight risk.

B. Rejecting Speculative Confinement: Okoe v. The Republic

Justice Taylor offered a classic critique of speculative pre-trial detention in Okoe v. The Republic.[10] He stated that it is unacceptable for judges to restrict freedom on the basis of speculation or criteria that ignore unique situations. This logic also holds true in the economic sphere; that, it is speculative to assume that an accused individual will only appear in court if they are protected by landed property, ignoring other, non-financial communal bonds.

C. International Human Rights Obligations

Ghana has signed a number of international human rights treaties and is a well-respected member of the international community. The state is required by Article 40 of the Constitution to uphold international law. According to Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial. The United Nations Human Rights Committee has made it clear that assurances of money or property must be evaluated based on the person’s financial situation; otherwise, they amount to arbitrary detention. The right to liberty and personal security is guaranteed by Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR). According to the African Commission’s Guidelines on the Conditions of Arrest, Police Custody, and Pre-Trial Detention in Africa, nations must make the most of non-custodial alternatives and make sure that bail requirements are not prohibitively expensive. Ghana violates both its domestic constitution and its obligations under international treaties by permitting its courts to seek immovable property as a default condition.

CONCLUSION

I conclude that, it is an unlawful violation and systematic discrimination against accused persons, particularly those who are poor for Ghanaian judges to commonly require immovable property guaranteed by land certificates or title documents as a prerequisite for criminal bail. This technique establishes an unapproved dual justice system by turning a basic human right into a commodity that depends on wealth. While the poor endure harsh, protracted pre-trial incarceration for the same crimes, wealthy offenders can purchase their instant release. This operational dynamic is in violation of Ghana’s international human rights duties under the African Charter and the ICCPR, as well as Articles 14, 17, and 19(2)(c) of the 1992 Constitution. The Ghanaian judiciary must do away with property-based justification requirements in order to uphold the rule of law and public trust in the administration of justice. Courts must adopt progressive, non-custodial alternatives that evaluate an individual’s actual risk of flight rather than their net worth. Poverty must never be treated as a crime under the banner of Ghanaian law.

RECOMMENDATIONS OR REFORMS

On the bases of the issues discussed, I make the following recommendations to the judiciary and parliament;

a. The Ghanaian judicial system must switch from property-based bail to risk-based bail in order to end this biased system.

b. Judges and magistrates must perform a documented means-testing evaluation of accused persons before imposing any bail terms regarding financial or property considerations. The court should consider non-property options particularly where the accused person is determined to be impoverished.

c. Act 30 requires courts to expand the list of acceptable securities to include mobile assets that may be verified, like, Agricultural livestock, registered automobiles (via Driver and Vehicle Licensing Authority certifications); or stable accounts for financial assets (such bank statements or even mobile money wallets).

d. To ensure attendance, the judiciary should rely more on traditional and social networks. Land title deeds should not be required to ensure an accused person’s appearance; instead, character sureties from registered employers, members of the community assembly, acknowledged religious leaders, or family heads should be adequate.

e. In the era of technology and digitalization, biometric and digital monitoring can be explored. Courts can use contemporary technologies monitored by biometric verification devices, to provide a more efficient, non-discriminatory method of reducing flight risk without locking people up because they are poor.

f. Parliament must enact legislation that will govern and/or regulate the grant of bail rather than leave it to judge’s discretion.

g. The Chief Justice should draw up Practice Direction to regulate the grant of bail in Ghana.

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[1]Criminal and Other Offences (Procedure) Act 1960 Act 30

[2]Martin Kpebu v. Attorney-General (No. 2) [2016] GHASC 10

[3] Gorman v. The Republic [2003–2004] 2 SCGLR 784

[4] Bhardwaj Arunesh & Agarwal Anshika, Indian Law Embracing Sociological Jurisprudence: A Detailed Study, International Journal of Law and Legal Jurisprudence Studies: Volume 2 Issue 3.

[5] Stephen Offei, Jurisprudence and Legal Philosphy 3^rd Ed.

[6] Karikari Isaac, Ghana’s Land Administration Project (LAP) and Land Information Systems (LIS) Implementation: The Issues. International Federation of Surveyors, 2006.

[7] Ghana Statistical Service (2026). Multidimensional Poverty Report 2024 Q1 - 2025 Q3. Ghana Statistical Service, Accra.

[8] 1992 Constitution of the Republic of Ghana

[9] Gorman v. The Republic [2003-2004] 2 SCGLR 784

[10] Okoe v. The Republic [1976] 1 GLR 80