MARTIN KPEBU v. ATTORNEY-GENERAL
2015
SUPREME COURT
GHANA
CORAM
- WOOD CJ (MRS) PRESIDING
- ADINYIRA (MRS) JSC
- DOTSE JSC
- YEBOAH JSC
- GBADEGBE JSC
- BENIN JSC
- AKAMBA JSC
Areas of Law
- Constitutional Law
- Criminal Law and Procedure
2015
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Plaintiff, a private legal practitioner, challenged the constitutionality of Section 104(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which provided for imprisonment for failure to pay a forfeited recognizance. Plaintiff argued that the provision was inconsistent with Articles 19(11) and 14 of the 1992 Constitution of Ghana. The Supreme Court agreed, highlighting that the section imposed criminal penalties for what amounted to a civil debt, which offends the constitutional protections that require crimes to be clearly defined and penalties prescribed by written law. The court cited several past cases to support the distinction between civil and criminal liabilities and declared Section 104(4) unconstitutional. Several justices concurred, underscoring the importance of civil liberties. The court’s decision emphasizes the protection of personal liberty and the requirement for clear legal definitions and penalties for criminal offenses.
DOTSE JSC:
This writ, is at the instance of the Plaintiff, a private Legal Practitioner and filed pursuant to article 2 (1) and 130 of the Constitution 1992 seeking the following relief:-
“On a true and proper interpretation of article 19 (11) and article 14 of the Constitution of Ghana 1992, section 104 (4) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30), is inconsistent with the said articles and therefore unconstitutional.”
CONSTITUTIONAL PROVISIONS RELIED UPON
At this stage, I think it is pertinent to consider the constitutional and statutory provisions that are germane to this action.
Article 19 (11) of the Constitution 1992 provides as follows:-
“No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”
Article 14 (1) of the Constitution 1992 also provides thus:
“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law-
(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or
(b) in execution of an order of a court punishing him for contempt of court; or
(c) for the purpose of bringing him before a court in execution of an order of a court; or
(d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or
(e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or
(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or
(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”
STATUTORY PROVISIONS IN ACT 30
Section 104 of the Criminal and Other offences (Procedure) Act, 1960 Act 30 also provides as follows:
Forfeiture of recognisance
(1) When it is proved to the satisfaction of a Court by which a recognizance under this Act has been taken, or when the recognizance is for appe