Picture this. Friday evening. A young trader is picked up by police on suspicion of a crime. Her phone is seized. Her family does not yet know where she is. The Constitution says that within 48 hours, she must be brought before a court, where a judge looks at the facts and decides whether she should be held any longer. She may not even be aware of this constitutional provision.
Forty-eight hours from Friday evening means a court appearance by Sunday. But Ghana’s courts, as a matter of long-standing practice, do not sit on weekends so she must wait. Even as she waits, there is no guarantee that she will be produced before a court on Monday.
And if she were picked up on a weekday, time again, we have witnessed this 48hr rule pass by. The reasons may be the administrative procedures needed to move from constitutional promise to due process realities.
This is the puzzle at the heart of Article 14(3) of the 1992 Constitution, which clearly states that anyone arrested on suspicion of a crime is brought before a court within 48 hours or released.
Then there is the related puzzle of bail – a judicial determination weighed against factors like flight risk, interference with evidence, or the risk of causing further offense under Section 96 of the Criminal and Other Offences (Procedure) Act, 1960. I acknowledge that bail is not automatic.
On the face of it, this appears reasonable enough as a safeguard for ensuring that a citizen’s due process rights are not violated.
If Rules Shape Behavior…
As a student of political science, I was taught that rules shape behavior. Good rules do two things well – permission to act and restraint from acting. In the context of the hypothetical trader, it gives police permission to arrest but also restrains them from not honoring the 48-hour rule.
The everyday reality is that police detain beyond 48 hours as a matter of routine administrative practice, and courts deny bail in ways that leave citizens — and, at times, legal observers — baffled.
If rules truly shape behavior, why does this institutional behavior persist? Why does it seem like institutional actors are stronger than the rules designed to constrain them?
Part of the answer is that what a rule says on paper and how public officials enact them are two very different things. The 48-hour rule exists in the Constitution, but as previously mentioned, Ghana’s courts don’t sit on weekends or public holidays.
This creates a gap. In creating a strong rule on paper, did we forget to build the administrative infrastructure and safeguards needed to support this rule in practice? And is the gap providing perverse incentives for exploitation?
The same is true of bail. The law provides grounds for the denial of bail. However, words such as “may interfere with investigations” or “may commit a further offence” offer a wide latitude of discretion.
In the absence of additional specifics regarding these grounds, discretion may be exercised in ways that may cause citizens to cringe. And here the burden is not only on the courts because sometimes state prosecutors oppose bail in cases that also leave ordinary Ghanaians baffled.
Police and courts may not necessarily be acting in bad faith always, but the persistence of these institutional behaviors is concerning.
So, what would curb this?
First, there is the need to narrow administrative discretion. I often argue that in the absence of specific guidelines, administrative discretion is viewed as permission in all circumstances and not striking a healthy balance between permission and restraint.
Second, we must fix the administrative infrastructure needed to support the rules in place. This may mean additional resources for the police and courts that allow work to continue uninterrupted even on weekends or public holidays should judicial intervention be needed to uphold the 48-hour rule. Rules are only as strong as the supporting infrastructure built to deliver it.
But the first two suggestions ultimately depend on the institutional actors’ willingness to be constrained by even the most specific rules. How do we get law enforcement officials to recognize the public’s concern in a way that incentivizes them to embrace a different administrative orientation?
Holding people who violate the rule accountable can help. Having strong rules only strengthens institutions if public officials who intentionally weaken them are made to answer for it.
Let us never lose sight of this – our democracy does not only rest on regular elections but also on citizens’ trust in key state institutions. That trust, as captured by the Afrobarometer survey, is exceptionally low. If we don’t close the gap between what the constitution says and what happens routinely in the exercise of administrative powers, trust will further erode.
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