Analysis Of The 1960 Criminal Code And The 1992 Constitution: The Power Of The Police


It is extremely heart breaking, worrisome and ridiculous if laymen on our principal streets are brutalised, tortured and dehumanised by the police due to their ignorance of the content of the Criminal Code 1960 and the 1992 constitution on the activities of the police service.

Central to this topical issue, it is important to know the modus operandi of the Ghana Police Service and their rules of engagement.

There are several assertions in relations to the powers of the Ghana Police Service.

To start with, there is a misconception about how the police carry out arrest. 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.

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 state the action an individual can take when arrested unlawfully.

Article 15 (1) of the Constitution explains that the dignity of all persons shall be inviolable;

(2) No person shall, whether or not he is arrested, restricted or retained, be subjected to;

(a) torture or other cruel, inhuman or degrading treatment or punishment;

(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.

Therefore, neither the police, the Bureau of the National Investigations (BNI) nor the public asserting the arrest have the law to abuse the civil rights or liberties of individuals.

When the police need to make an arrest, there are specific arrest procedures that need to be followed. Once arrested, the police take the suspect under the care and control of the law.

The arrest procedure does however leave the suspect with certain basic human rights to protect him or her against unreasonable treatment.

Accordingly, Criminal Procedure Code, 1960 (Act 30) for example, describes at its Section (3) how arrest ought to be made – stating that in making an arrest the police officer or other person making the same shall actually touch or confine the person to be arrested, unless there be a submission to the custody by word or action.

It is important at this point to know that a suspect is not to be prejudged as a criminal until he or she is found to be so by a competent court of jurisdiction. It is required that such person must be treated with every dignity he or she is entitled to under the law.

To achieve this, Chapter Five (5) of the 1992 Constitution sets out for example, Fundamental Human Rights and Freedoms provisions in its Articles 12, 13, 14 and 15.

Another interesting but unfortunate move by the police is invitation for interview. Most people still wrongly believe that by refusing to answer police questions, it automatically place one under the frame of guilt.

But not only one is not obliged to answer any police questions under interview, one is under no obligation to take the police interview either.

One of the most sacred principals of the criminal system is that the defendant has an automatic right to the presumption of innocence.

It is the job of the prosecution to prove guilt beyond a reasonable doubt, not the job of the accused to prove his innocence.

Unfortunately, the police are all too keen to suggest that adverse inference can begin to work against an accused person the moment the police start asking questions.

The police commonly misinterpret Section 34 of the Criminal Justice and Public Order Act to give misleading impression that if the accused does not answer every question by the police, his or her silence would be used against him or her.

This is a massive over simplification of a complex legal rule. Firstly, adverse inference can only be drawn by a judge or jury at a trial (Actio Arbitrari) and not by the police in an interview.

Secondly, adverse inference on its own is not enough to convict someone. Finally, the most important thing is that the police cannot use an individual refusal to answer questions during interview as a reason to prosecute.


Source: Saint-Ayisi Samuel

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