THE RATIONALE FOR HIGH BAIL CONDITIONS IN GHANA: A LEGAL ANALYSIS | By: Isaac Yeboah Filson – Law Student, Ghana School of Law

By: Isaac Yeboah Filson (Law Student, Ghana School of Law)

One of the recurring public debates in Ghana’s criminal justice system over the years is why courts sometimes impose significantly high bail amounts, particularly in matters involving politically exposed or high-profile individuals. This concern has gained renewed prominence in cases involving public figures such as Gifty Oware-Mensah, Mustapha Abdul-Hamid, and Bernard Antwi Boasiako (Chairman Wontumi).

A review of recent cases demonstrates the judiciary’s reasoning in imposing such substantial bail conditions where the allegations involve serious economic crimes or offences of public interest.

Gifty Oware-Mensah, a former Deputy Executive Director of the National Service Authority, was charged in connection with a major corruption scandal involving alleged ghost names and financial loss to the state. According to the charge sheet, she allegedly dishonestly appropriated a total sum of GH¢31,502,091.40 belonging to the National Service Authority and was further charged with causing financial loss to the state and money laundering. The High Court granted her bail in the sum of GH¢10 million with sureties, a decision that generated public controversy over the perceived proportionality of the amount.

Similarly, the immediate past Director-General of the National Service Authority (NSA), Osei Assibey Antwi, who is accused of stealing and causing financial loss of nearly GH¢1 billion to the State was granted bail of GHC 800 million onOctober 30, 2025, by the High Court (Criminal Division 4) in Accra.

The basic question is why do courts set bail amounts higher (or seemingly disproportionate)?

The governing law in Ghana on all criminal procedure is the Criminal and Other Offences (Procedure) Act, 1960 (Act 30),which has laid out provisions relating to bail.

To grant an accused person bail as explained by JusticeCHARLES CRABBE J.S.C. in the case of Republic vs Registrar of High Court; Ex-Parte Attorney-General [1982-1983] GLR 407, at 411 is simply the release of an accused person or a suspect temporarily awaiting a trial or ongoinginvestigations or on appeal. This might come with conditionsor without conditions so far as it can be   guaranteed that theaccused person will appear before the court.

Under Article 14(4) of the Constitution, 1992 where a person who has been arrested, restricted, or detained pursuant to Article 14(3)(a) or (b) is not brought to trial within a reasonable period, that person must be released, without prejudice to any future proceedings that may still be instituted against him. Such release may be either unconditional or subject to reasonable terms, particularly conditions that are necessary to ensure the person’s appearance at a future date for trial or for any proceedings leading to trial.

This is based on the premises that Under Article 19(2)(c) of the Constitution, 1992 every person accused of committing a criminal offence is regarded as innocent unless and until that person is proven guilty by a competent court of jurisdiction or voluntarily enters a plea of guilty. The supreme court while refusing an application for certiorari to quash a decision by the Appeals court in granting bail to an accused person held in the case of Republic v. Court of Appeal, Ex-Parte, Attorney General (Frank Benneh) case (1998-99), SCGLR 559 at 568that, ‘it is the right of every person in Ghana to enjoy his freedom of movement etc. as enshrined in the Constitution 1992…in the instant case the accused is presumed to be innocent until it is otherwise established’.

Even though it been established in the famous case of Martin Kpebu v The Attorney General (No.2) that all offenses are bailable, the legislations still recognises that it is at the discretion of the court to grant an accused person bail.However, in order not to exercise this discretion capriciously, certain conditions have been laid down to serve as a benchmark to refuse bail. That is if the court is of the view that the accused person when granted bail may not appear before the court to stand trial, may interfere with witnesses or evidence or may hamper with police investigation, may commit a further offence when on bail or have committed an offence of which is punishable by imprisonment exceeding six months while he was on bail, then the court will not grant the bail application as stipulated under Section 96 (5) of Act 30.

In granting an accused person bail, the law under Section 96 (3) and (4) of Act 30 specifies that, the amount and condition of bail shall be fixed with due regards to the circumstances of the case and shall not be excessive or harsh and that the court must not withhold or withdraw bail to punish an accusedperson.

Moreso, bail being at the discretion of the court and taking the circumstances of the case into consideration, it is trite that, the grant of bail ‘like every judicial discretion, it should be exercised in accordance with laid down principles; it shouldneither be arbitrary nor capricious; in other words, it should be exercised judicially’ as stated in the case of The Republic v High Court, (Criminal Division) Accra Ex–Parte: Francis Arthur and the Attorney General in 2016

The Ghanaian courts have consistently recognised that in determining bail, the paramount consideration is whether the accused will appear to stand trial, as stated under Section 96(5)(a) of Act 30 and further re-echoed in the case of Republic vs Registrar of High Court; Ex-Parte Attorney-General [1982-1983] GLR 407.

In determining whether to impose higher bail terms in high-profile criminal cases, one of the factors the court may consider is the magnitude of the amount involved in the alleged offence, particularly where the charge concerns substantial financial loss or large-scale economic crime. The rationale is that the greater the amount involved, the more serious the offence appears, and the stronger the incentive for the accused person to evade trial due to the severe consequences that may follow upon conviction. This consideration falls within the broader assessment of the gravity of the offence under Section 96(6) of Act 30, which requires the court to consider the nature of the accusation and the severity of the punishment likely to be imposed.

Again, in justifying higher bail terms in high-profile criminal matters, one of the principal considerations often advanced by the courts is the risk of absconding, particularly where the accused persons possess substantial financial resources, political influence, or international connections that may enable them to evade the jurisdiction of the court. In corruption-related prosecutions such as those involving Gifty Oware-Mensah and Osei Assibey Antwi, this concern becomes especially relevant because the accused persons are individuals of considerable public standing and means, thereby increasing the likelihood that they may interfere with the judicial process or fail to appear for trial if not subjected to stringent bail conditions.

Accordingly, where the surrounding circumstances indicate a heightened flight risk, the imposition of higher bail terms is legally justified as a protective mechanism to preserve the integrity of the trial process.

Another important factor that justifies the imposition of stringent bail conditions is the gravity of the offence and the overriding public interest involved, particularly where the allegations concern the misappropriation of substantial public funds and abuse of public office. In cases such as those involving Gifty Oware-Mensah and Osei Assibey Antwi, the accusations relate to serious economic crimes allegedly committed against the State, thereby elevating the public interest in ensuring accountability and preserving confidence in the administration of justice.

Lastly, the nature of white-collar and economic crime is a significant factor courts consider in imposing stricter bail conditions, as such these offences are inherently more sophisticated and complex than ordinary petty offences and often involve intricate financial transactions, documentary trails, multiple actors, and prolonged investigations. Unlike minor offences where evidence may be straightforward and easily preserved, economic crimes frequently depend on documentary, electronic, and financial records which may be susceptible to tampering, concealment, destruction, or manipulation by the accused if adequate safeguards are not maintained. For this reason, courts are often cautious in granting lenient bail terms in matters involving corruption, fraud, money laundering, and abuse of office, particularly where the accused holds influence or has access to institutional records and witnesses.

The importance of preserving the integrity of investigations and preventing interference with evidence was judicially emphasized in Martin Kpebu v. Attorney-General [2015-2016] 1 SCGLR 114, where the Supreme Court reaffirmed that although bail is a constitutional right, the court retains discretion to impose restrictive conditions where necessary to protect the administration of justice and the integrity of the criminal process. Accordingly, in white-collar prosecutions, the vulnerability of evidence and the risk of interference provide sound legal justification for the imposition of heightened bail conditions.

Notwithstanding the judicial discretion afforded to courts in the determination of bail, it is essential that the public understands that the imposition of high bail conditions in appropriate cases is neither intended to be punitive nor politically motivated, but rather a lawful exercise grounded in established legal principles and the facts of each case.

Under Article 125(1) of the Constitution, 1992 of Ghana, which provides that “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary…”, the judiciary is entrusted with the constitutional responsibility of administering justice independently and in accordance with the law, free from external pressure or partisan considerations.

Accordingly, where courts impose substantial bail terms, especially in high-profile or politically sensitive matters, such decisions must be viewed within the context of the applicable legal framework, including the court’s duty to consider factors such as the seriousness of the offence, the likelihood of absconding, the possibility of interference with investigations, and the need to secure the attendance of the accused at trial.

It is therefore imperative for the public to appreciate that stringent bail conditions, when properly imposed, are not instruments of punishment but legal safeguards designed to protect the integrity of the judicial process.

It is therefore the view of the writer that, public awareness of this distinction is crucial in preventing political narratives, partisan commentary, or personal interests from distorting the perception of judicial decisions or undermining confidence in the courts. Because, in a constitutional democracy, judicial determinations must be respected as legal outcomes based on reasonable application of the law and not hastily interpreted through the lens of political rivalry or public sentiment, lest the independence and credibility of the judiciary be unjustly jeopardized.