Tuesday 14th March 2023

Index Number: 2404222

Constitutional Law

MARTIN KPEBU V ATTORNEY-GENERAL [2015] JELR 68939 (SC)

FACTS

In this case, the plaintiff, Martin Kpebu, a private legal practitioner, in compliance with articles
2(1) and 130 of the 1992 Constitution of Ghana, brought an action against section 104(4) of the
Criminal and Other Offences (Procedure) Act 1960(Act 30), alleging that this section was
inconsistent with the 1992 Constitution, particularly articles 14 and 19(11), and was therefore
unconstitutional.

ISSUE

Whether or not section 104(4) of the Criminal and Other Offences (Procedure) Act 1960(Act 30)
is contrary to articles 14 and 19(11) of the 1992 Constitution.

HOLDING

The Supreme Court held that section 104(4) of Act 30 is contrary to articles 14 and 19(11) of the
1992 Constitution and was therefore struck out.

REASONING

The court reasoned that committing a person to prison for default in paying a civil debt arising
from a default to produce a bailed person (section 104(4)) does not amount to contempt of court
and so an arrest infringes upon the person’s rights indicated in article 14. They further stated that
even though section 104(4) prescribes punishment, the offence is however undefined therefore
one cannot be convicted according to article 19(11).
 Index Number: 2404222

MARTIN KPEBU V ATTORNEY-GENERAL [2016]

FACTS

The plaintiff, Martin Kpebu, filed pursuant to articles 2(1) and 130 of the 1992 Constitution of
Ghana seeking a single relief of a declaration that section 96(7) of the Criminal and Other
Offences (Procedure) Act 1960(Act 30), as amended by Act 633, contravenes with articles 14,
15(2) and 19(2)(c) of the 1992 Constitution and is therefore void.

ISSUES

1. Whether or not section 96(7) of Act 30 is contrary to article 14 and 19(2)(c) of the 1992
Constitution.
2. Whether or not section 96(7) of Act 30 is contrary to article 15(2) of the 1992
Constitution.

HOLDING

With a majority of 5 justices to 2, the Supreme Court held that section 96(7) of Act 30 is contrary
to articles 14 and 19(11) of the 1992 Constitution and was therefore struck out. Whereas the
claim on article 15(2) was rejected.

REASONING

1. The court reasoned that this provision must not be read in isolation, but in conjunction
with Articles 14(3) and (4) as well as 19(2)(c), making it clear that it was not intended
that a person held under the former could not be granted bail at all in certain specified
offences, which section 96(7) purports to do.
2. The court reasoned that the counsel’s understanding of a non-convict denied bail being a
violation of his or her human right to personal dignity is far-fetched and dangerous as if
conditions prevailing in the prisons are employed as a ground for striking down a law,
then all criminal suspects and convicted criminals as well would apply to be set free on
that account.