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48-hour detention: What the public must know and sue the Police if breached



48-hour detention: What the public must know and sue the Police if breached 1

The Ghana Police Service is mandated as security service to enforce the laws of Ghana and ensure Public order.

Central to this topical issue, it is important to know the modus operandi of the Ghana Police Service and their rules of engagement in ensuring the enforcement of the laws of Ghana and safeguarding the 1992 Constitution.

However, in the enforcement of the law by the police, the fundamental rights and freedoms of some individuals in Chapter Five of the 1992 Constitution are always breached by the police. It has become a ritual for some policemen to just arrest an individual without explaining the reason for their arrest.

Article 14 clause 2 of the 1992 Ghana Constitution states that “A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice”.

In other words, if the police refuse to explain to the accused person the reason for his or her arrest, the accused person can resist the arrest.

The most important aspect of the law that is constantly ignored and breached is the the 48-hour detention by the police. In most cases, when an individual is arrested Friday, the person is kept in police custody for the weekend and subsequently arraign before the Court on Monday. This takes more than forty-eight hours.

This situation is a clear Constitutional breach of Article 14 Clause 3(b) of the 1992 Constitution in relation to fundamental human rights and freedoms.

In clause 3, it states that “A person who is arrested, restricted or detained;

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

(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention”.

Clause 3, subsection (b) from the above clearly explains that the police have only 48 hours to detain an individual. Any extension of detention amount to unlawful detention and the affected person can pursue legal action against such policeman.

Clause 4 of the Constitution states that “Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released wither unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial”.

In clause 5, it also states that “A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.”

The provision above is very important in our everyday life through the practice and exercise of democracy in this postmodern era. The constitutional provision above clearly states the action an individual can take when arrested or detained unlawfully.

The Supreme Court of Ghana has made a ruling in the matter of the period of detention in relation to weekend detention.

In the recent case of Martin Kpebu v. Attorney-General, the Supreme Court took a unanimous decision that the maximum 48-hour power the police has to detain an arrested person in State custody without being granted bail or extension includes weekends, public holidays and periods of civil unrest.

Mr. Kpebu in his suit sort eight (8) reliefs from the Supreme Court. Amongst them was “a declaration that on a true and proper interpretation of article 14(3) of the Constitution (1992) a Saturday, a Sunday, a public holiday, anytime during a civil unrest and any other day that the courts in Ghana cannot sit (e.g. during strike by judicial service staff or during a strike by any other stakeholder that will prevent the court from sitting) would be counted in reckoning the 48 hours within which a person arrested or detained on suspicion of committing a crime and not released must be brought before a court under article 14 (3) of the Constitution of Ghana (1992)”.

The decision made by Chief Justice, Sophia Akuffo, Justice Kwasi Anin Yeboah, Justice Paul Baffoe-Bonnie, Justice Sule Gbadegbe, Justice Alfred Benin and Justice Nii Ashie Kotei is to take effect in six months’ time.

The judges further asked the judicial secretary to within six months make arrangements for overtime pay for officers of the courts, especially District courts, who will work on weekends, holidays for this purpose

The seven member panel consequently directed the Chief Justice, the Inspector General of Police and Registrars of the various Courts to ensure that the ruling of the Court is brought to the attention of all interested parties to ensure its enforcement.

It is therefore important for the public to note that the anomaly in the Constitutional provision in detaining a suspect for a maximum of Forty-eight hours excluding Weekends, holidays and civil unrest has been dealt with by the unanimous decision of the Supreme Court.

By Saint Ayisi

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