A: Introduction

When is the Prof. Mike Ocquaye Committee going to release its “ Why the NPP lost the 2024 general elections” report? May be, soon. May be, never. May be, it will be released but only for the consumption of the ‘big boys’ in the party. Same as O. K. Mensah-Bonsu’s version which - presumably delivered in his usual linguistic flair - has been reportedly submitted to the Ashanti Regional NPP ‘big boys’ for their consumption, digestion and egestion.

I am keen to see the Prof. Mike Ocquaye Committee report for two major reasons. First, it will help the NPP to rethink how the party will set things right when next it is given the mandate to rule the nation. As the saying goes, “ nea ↄwↄ aka no pԑn no suro sonsono;”[1] to wit: once bitten, twice shy. Secondly, the report will, hopefully, guide the NDC to put its foot right where its predecessor missed its step. For as the Akan proverb goes, “ dua a Ananse adi awu no, Ntikuma ntena aseԑ nto nko.”[2] In common language, the proverb means ‘one does not repeat the events that landed another person in trouble.’  

B: Any lessons learnt?

Even as we wait for the official reasons why the NPP lost the last elections, one can wager that there probably were judicial and legal factors that contributed to the loss. When the NPP gets another chance to take a bite on the juicy political aluguntugui,[3] hopefully, ‘once bitten, twice shy’ will be their overarching theme for governance.

With each passing day, it appears the delayed release of the NPP’s why-we-lost-the-elections report is goading on the proverbial Ntikuma to go and - not just sit and doze off but rather - prune off the branches of the very tree that killed his father, Kwaku Ananse. Otherwise, why would any political party in Ghana want to court public displeasure by displaying blatant abuse of the law? And doing so with something as fundamental as grant or refusal of bail?

C: Grant of bail in criminal investigations/cases

Bail, as it is known to our law, is the procedure by which a person arrested or imprisoned for an offence is set at liberty.  That liberty is a conditional liberty.  It is conditional because it is based on the expectation that the person who is granted bail will return for further proceedings. The sole aim of an application for bail is to secure the release of the person pending trial. Simply put, the giving of ‘bail’ is the undertaking that a suspect or accused person and his sureties give to investigators or the court to assure that he will return for investigations or trial. It is granted also on the condition that the person concerned will give sufficient security to ensure his or her appearance for the further proceedings.[4]

The investigative body or court will grant bail by exercising its discretion.  The exercise of the discretion must not be punitive.  The main consideration in exercising the discretion to grant or refuse bail is the likelihood of the person concerned failing to appear for further proceedings.  The common law principle is that bail ought, or should, be granted unless it can be shown that there is the likelihood that the suspect, accused or prisoner (if it is bail pending appeal) will not turn up at the further proceedings.[5] These legal considerations apply whether it is a police inquiry bail during investigations or court bail granted when the person is arrested or after conviction pending appeal.

It is common learning in our criminal jurisprudence that any person suspected or charged with committing any offence, including murder, has the right to be granted bail. In Kpebu v Attorney-General (No. 2)[6] Benin, JSC stated as follows:

“A prohibition on the right to bail is in conflict with the constitutional provisions on individual liberty… This principle of presumption of innocence is a very important one in the criminal justice system and it underpins the basic concept of individual liberty under the Constitution… The presumption of innocence embodies freedom from arbitrary detention and also serves as a safeguard against punishment before conviction. It also acts as a preventive measure against the State from successfully employing its vast resources to cause greater damage to a person who has not been convicted than he can inflict on the community. Therefore, in my humble view, any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision [article 14 of the Constitution, 1992] which guarantees his innocence until otherwise declared by a court of competent jurisdiction.” (Emphasis in italics supplied)

D: Onerous bail conditions amount to refusal

It has been reported that one Kwabena Adu-Boahene and his wife have been arrested by EOCO on suspicion of committing certain crimes. The Hon. Attorney-General has confirmed the arrests in a Press conference.[7] According to Hon. A-G, the two individuals have been under arrest since 21^st March, 2025 and EOCO investigations are ongoing. As at yesterday, 27^th March, 2025, the suspects were still in incarceration without EOCO/police inquiry bail or court bail. It has emerged that EOCO granted the suspects bail – albeit after the 48 hours limit set under the law had passed. But the conditions were so onerous that the suspects could not reasonably be expected to meet them.

Mr. Adu-Boahene was reportedly to post bail in the sum of GH₵120 million with one surety to be justified and his wife was to post bail in the sum of GH₵80 million with one surety to be justified. In simple terms, the suspects were to get two people who could each show that they had GH₵120 million and GH₵80 million respectively to put down before the suspects could be released bail. Not surprisingly, the suspects were not been able to meet such horrific bail conditions. Therefore, they are still in custody way beyond the 48 hours set under law for them to be put before court.

It has been reported that, after the suspects’ lawyer applied for bail on their behalf before the High Court, they have been granted bail by the Court today, 28^th March, 2025 – one week after they were arrested as suspects. According to reports, the new bail conditions set by the High Court are that, it has:

“ …reduced Mr Adu-Boahene’s police inquiry bail from GH¢120 million to GH¢80 million, with two sureties, one of whom must provide justification. His wife's GH¢80 million bail bond was maintained, but the new conditions now require two sureties with no justification. Additionally, the couple must report to the Economic & Organized Crime Office (EOCO) twice a week for the next three weeks and are prohibited from travelling without express permission from EOCO.”[8]

The question really is this: What is the real difference between the bail conditions set by EOCO and that of the High Court? These are the harsh, onerous and impossible conditions set for suspects who are yet to be charged with any crime. One cannot imagine what awaits persons who will be charged and put before court for trial. For as long as these suspects are unable to meet these humungous bail conditions, they will be condemned to languish in jail without any charge at all.

E: Conclusion

In conclusion, I can do no better than drink from Benin, JSC’s well of wisdom (as was demonstrated in Kpebu v Attorney-General (No. 2).^[9]  It is submitted that by setting such onerous and impossible bail conditions for the suspects (who have not yet been charged with any offence), EOCO - and now the High Court - have, by necessary implication, denied the suspects their right to bail. They have pre-judged or presumed them guilty even before any charges are preferred against them. That is clearly contrary to article 14 of the Constitution, 1992 which guarantees the suspects’ innocence until otherwise declared by a court of competent jurisdiction.

Lest it is forgotten: “Dua a Ananse adi awu no, Ntikuma ntena aseԑ nto nko.”^[10]

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[1] It means a person who has been bitten by a snake before is afraid of a worm

[2] The proverb loosely translates into English as follows: ‘Ntikuma (son of Ananse) is not supposed to sit and doze off under the tree that killed his father (Ananse).’ Its significance lies in its import: You do not repeat an event that has landed another person in trouble. Source: Kwadwo Osseo-Asare, “Ogya ne atuduro nna faako - Fire and gunpowder do not sleep together: Teaching and learning Materials Science and Engineering with African proverbs,” Legon Journal of the Humanities, Vol. 30.1 (2019) available at file:///C:/Users/Hp/Downloads/ajol-file-journals_499_articles_191112_submission_proof_191112-5893-484820-1-10-20191111%20(1).pdf

 

[3] Soursop

[4] See: Dictum of Charles Crabbe, JSCin Republic v Registrar of High Court; ex parte Attorney-General[1982-1983] GLR 407, SC

[5] Same place

[6] [2015-2016] 1 SCGLR 143

[7] https://citinewsroom.com/2025/03/full-details-on-why-kwabena-adu-boahene-was-arrested/

[8] Source: https://www.graphic.com.gh/news/general-news/court-revises-bail-conditions-for-former-national-signals-bureau-dg-adu-boahene-and-wife.html  “ Court revises bail conditions for former National Signals Bureau DG Adu-Boahene and wife” (accessed on 28^th March, 2025)

 

[9] [2015-2016] 1 SCGLR 143

[10] The proverb loosely translates into English as follows: ‘Ntikuma (son of Ananse) is not supposed to sit and doze off under the tree that killed his father (Ananse),’