ABRONYE’S REMAND: LEGALLY JUSTIFIED OR A PANOPLY OF “POWER”

The remand into prison custody by the Accra Circuit Court of the Bono Regional Chairman of the New Patriotic Party (NPP), Kwame Baffoe, popularly known as Abronye, on charges of offensive conduct conducive to the breach of public peace and publication of false news had led to diverse opinions shared by the public.

It is plausible to note that the discussions around the refusal of bail, culminating into a one-week remand is worth commendable, as a section of Ghanaians are gradually being informed about the basics of legal nuances.

However, let me be blunt here; Kwame Baffoe (Abronye), having been “injected” with “300Ls” dose of law into his blood should have contemplated the legal consequence of filing for asylum in eight (8) countries after such offensive conduct conducive to the breach of public peace and publication of false news. The legal consequence here is the refusal to grant him bail.

It is important to state that the decision in Martin Kpebu (No. 2) v. the Attorney General makes it clear that although every offence is bailable in principle, Article 14(4) of the Constitution, 1992 does not confer an automatic right to bail in all circumstances, neither does it provide for automatic denial of bail.

The Court observed that when the facts of a case show clear reasons that may undermine the proper administration of justice, the court is fully justified in refusing bail. In particular, the factors that may lead to the refusal of bail include the likelihood of non‐appearance. The court must assess whether the accused is likely to abscond. This involves examining if the accused has a fixed place of abode or stable employment. If the evidence indicates that the accused may not be traceable or is not gainfully employed, raising doubts about his ability to appear for trial, this becomes a strong ground for refusal of bail as stated in the case of Abudu Wadera & 10 Others v. The Republic.

Another factor is whether releasing the accused could lead to the tampering with or interference with witnesses or evidence, or if there is any indication that the accused might hamper police investigations. The discretion to refuse bail is supported if there are reasonable grounds to believe that the accused could use his liberty as a means to obstruct the judicial process.

The court will also consider whether the accused might commit further offences while on bail. If the nature of the offence or the circumstances surrounding the case suggests that the accused poses an ongoing threat to public safety or is likely to reoffend, this provides another basis for denying bail.

Again, the gravity of the alleged offence and the strength of the evidence against the accused are central to the analysis. A serious charge or an accumulated body of compelling evidence that points toward a grave offence (with correspondingly severe potential punishment) makes the risk of non-appearance more acute, thereby justifying a refusal of bail.

Furthermore, if there is a history indicating that the accused, when previously released on bail, failed to comply with the conditions imposed, this too is a relevant factor. A past record of breaching bail conditions signals that the accused might again default on his duty to appear before the court when required.

In delving deeper into the eight (8) asylum applications in multiple jurisdictions by Abronye, it is worth noting the possible denial of bail due to some specific factors:

(1) Rebuttable Presumption of Bail and Risk Factors: Although the Constitution, 1992 provides for procedural protections and implies a presumption in favour of bail, that presumption is rebuttable when the circumstances indicate that the accused poses a risk of absconding or interfering with the administration of justice. In the case where Abronye has filed asylum applications in eight different countries, such behaviour strongly suggests a willingness to seek refuge abroad rather than face trial. The Supreme Court has held that even though the constitutional presumption of innocence is a safeguard, it does not automatically translate into a right to bail when evidential factors such as weak ties to the country or an evident intent to flee come to light. (See The Republic v. Kevin Dinsdale Gorman & Ors)

(2) Flight Risk and Lack of Strong Local Ties: A central principle considered by the courts is whether the accused can be regarded as a flight risk. In circumstance of Abronye filing for asylum in several countries, the relevant court assessed his flight risk as high. In the case of The Republic v. Kevin Dinsdale Gorman & Ors, the Court of Appeal, in its analysis, emphasized that considerations such as the accused’s ties to Ghana, the nature of the allegations, and the likelihood of his fleeing the jurisdiction are weighed heavily against granting bail. The multiple filling by Abronye ignites the presumption that he may not appear voluntarily at trial, as he may abscond. In this circumstance, bail may be justifiably denied.

(3) Application to the Current Matter: In the matter at hand, the remarriage of Abronye on charges of offensive conduct and publication of false news is compounded by his previous asylum applications in the United States, United Kingdom, France, Italy, Canada, Spain, Germany, and Côte d’Ivoire. Such actions indicate that he may have already contemplated the possibility of not remaining in Ghana if faced with a lengthy or unfavourable trial process. By filing for asylum in multiple jurisdictions, he exposes a clear willingness to detour from the legal process locally; a behaviour that courts have taken seriously in previous cases where the risk of fleeing the jurisdiction was a key factor against the granting of bail (See Jonas Kpakpo Allotey v. The Republic).

In this discourse, let me emphasise that the court does not and shall not take delight in overturning the principles of natural justice, in ensuring that a person is targeted and penalised through legal technicalities extremist approaches. Fundamentally, bail is a very important tool in ensuring fair trial. There are several factors and principles for the grant of bail.

(a) Bail as a Safeguard Against Unreasonable Delay and Injustice: In Fynn And Another v. The Republic, the court granted bail pending appeal because the appellants faced an undue delay in obtaining the judgment and preparing the case record. The court noted that if the delay resulted in the accused serving a substantial portion of their sentence before the appeal could be heard, a miscarriage of justice might occur. In this case, the court considered both the likelihood of success on appeal and the impact of delay in the appeal process before granting bail. This case clearly illustrates that bail is not only a function of the prima facie strength or weakness of the case but also serves as a constitutional safeguard against protracted detention.

(b) Extending Bail to Civil Cases: In Agyei v. Apraku and Others; Gyamfi v. Apraku and Others; Boateng v. Apraku and Others (Consolidated) (No. 2), the court dealt with bail in the context of a civil contempt case. Here, despite the non-criminal nature of the proceedings, the judge reasoned that if bail is permitted in criminal cases, even those involving serious allegations, then denying bail in civil cases would be inconsistent. This decision broadened the scope of bail, recognizing that the fundamental principles of fairness and personal liberty extend to civil committal proceedings as well.

(c) Prolonged Bail and Its Implications: In Republic V. Mensah, a respondent who had been on bail for over four and a half years was considered for bail pending appeal. The court emphasized that an extended period on bail itself can become an exceptional circumstance warranting further bail, rather than sending the individual back into custody. This approach underscores a key policy: that the judicial system is reluctant to unnecessarily disrupt a person’s liberty when long periods of bail have already been granted.

(d) The Role of Arguable Issues on Appeal: Djaba v. The State is an important decision wherein the court examined the conditions under which bail pending appeal may be granted. The court established that if there are strong, arguable issues in the appeal, the inherent right to a fair opportunity to prepare a defense may justify bail. Factors such as the likelihood of the appellant appearing for the trial and the potential hardship of continued detention were central to the determination. This case reaffirms that bail is not an automatic entitlement, but a discretionary remedy based on the balance between the risk of non-appearance and the interests of justice.

(e) Constitutional Right to a Fair Trial and the Impact of Delays: In Okyere and Another v. The Republic, the delay in the preparation of court records and the concern over breaches of fundamental rights formed critical grounds for granting bail pending appeal. The appellate court highlighted that punishing an accused for procedural delays especially where such delays potentially infringe upon constitutional rights is both unprincipled and unjust. This decision reflects the theme that bail under such circumstances is fundamentally tied to the right to a fair opportunity to present one’s defense

(f) Balancing Statutory Provisions and Judicial Discretion: While the amended Criminal Procedure Code contains provisions that in theory may limit bail in certain cases (for example, murder), Prah and Others v. The Republic demonstrates that judicial discretion may prevail when the defendants claim they are wrongly charged. Here, the court noted that the strict prohibition for murder did not automatically apply when the facts suggested that the accused’s constitutional rights were at stake. The judge thus granted bail, emphasizing that the law must protect life, liberty, and property, and must evolve to prevent injustice to potentially innocent persons.

(g) The Limits of the Constitutional Presumption of Innocence: In The Republic v. Kevin Dinsdale Gorman, Mohammed Ibrahim Kamil, John David Logan, Frank David Laverick, Alan William Hodgson and Seven Leonhard Herb, the Supreme Court clarified that although there is a constitutional presumption of innocence, it does not amount to an absolute right to bail. The court reiterated that the duty to grant bail in cases of undue delay exists irrespective of the nature of the offense or the severity of the potential punishment. However, this presumption is rebuttable when factors such as the accused’s ties to the jurisdiction, the characteristics of the alleged offense, and the likelihood of absconding are taken into account. This case illustrates the delicate balancing act between protecting an individual’s liberty and safeguarding the integrity of the judicial process.

(h) Bail in the Context of Serious Criminal Charges: Brefoh v. The Republic and Owusu and Another v. The Republic further explore bail in cases involving serious charges such as murder. In the former, despite the gravity of the charge, the court’s review of the statutory and constitutional principles suggested that judicial discretion is necessary to ensure that justice is not derailed by an inflexible application of the law. In the latter, even for charges as serious as abetment of murder, the constitutional mandate that an accused must be tried within a reasonable time was deemed to override the rigid statutory prohibition on bail, thereby protecting the accused’s right to liberty when undue delay is evident.

(i) Bail as a Right of Appearance Rather Than Punishment: Finally, Okoe v. The Republic reinforced the principle that bail should not be viewed as a punishment. Historically, as the legal tradition evolved from the English common law, bail was established primarily to secure an accused’s appearance at trial rather than to penalize them. This case reiterated that bail is an extension of the presumption of innocence and is meant to serve as a safeguard against arbitrary detention when there is reason to believe that the trial might be unduly delayed or that the charge is not supported by adequate evidence.

In conclusion, bail is a multifaceted legal concept that balances the necessity of ensuring an accused’s presence at trial with the fundamental right to liberty and fair treatment under the law. The jurisprudence shows that courts are willing to set aside rigid statutory provisions in favour of a more nuanced consideration of the circumstances at hand, thereby ensuring that justice is not compromised by undue delays or procedural injustices.

However, an accused person can be denied bail if there is compelling evidence indicating a high risk of flight, insufficient local ties, and the potential for the undermining of the judicial process. The decisions such as those in the Supreme Court’s discussion on bail in cases of serious charges demonstrate that when an accused’s actions (including filing asylum applications in several countries) raise substantial doubts about their willingness to remain available for trial, the court is justified in denying bail in the interest of public safety and maintaining the integrity of the judicial process.