Innocent Until Proven Guilty: The Case of the Pre-Trial Detainee

It is often said that one can measure the civilisation of a society by the way it treats its prisoners; however, not all those imprisoned have ever been found guilty of committing a crime.

In 2009, 28% of all people detained in Ghana were being in held by what is known as pre-trial detention. This means that the police have arrested the detainee but he or she has not yet appeared before a court. As with any democracy, the firm belief that a person is innocent until proven guilty is essential in the prevention of corruption and abuse of executive power.

The police service is neither a judge nor a jury. It cannot, and does not, decide whether a person is guilty or innocent. Under Ghana’s police code the police may arrest somebody if they have reasonable suspicion that the person has committed a crime; but suspicion, of course, is not the same as guilt.

Unfortunately there is widespread belief in the common idiom of “no smoke without fire.” The problem with this view regards the fact that that an accusation, which could be true but might also be false, is generally directed at the individual. Unless that individual is you or a trusted friend or family member, it is it is all too easy to believe the accused person is simply guilty as charged. If we stop and think for a minute; however, things are not as clear cut as they may first appear.

We have all read the stories about police corruption, yet for some reason we do not equate this with the possibility of unlawful arrest. We acknowledge the current weaknesses of the police service but deem a person charged by the same police service as being guilty of a criminal offence. This does not add up. If a police officer is willing to take a bribe to forget about a traffic offence, it follows that he or she would likely accept a bribe to arrest an innocent person for a crime they did not commit.

Neighbourly disputes over land rights are frequently resolved by such methods. Here there is no come back against the police as the neighbour’s accusation provides evidence of the police officer’s ‘reasonable belief’ in the arrested person’s guilt. It is technically possible for the innocent neighbour to sue the accusing neighbour under civil law for ‘malicious prosecution’ but the practicalities of time and legal costs have meant that, in Ghana at least, this option has never, as yet, been pursued.

Sometimes the crime in question is not even a crime at all. People are often arrested, for example, for not being able to pay a debt and subsequently being charged with theft. A crucial component of the crime of theft is dishonesty, but where is the dishonesty here? Of course, if a person borrows with no intention ever to pay the money back then this can be termed theft as the borrower is clearly dishonest, but if a man loses his job and is forced to default on what he owes, he never had any intention of committing a crime as so cannot be termed dishonest. This colonial relic of locking up debtors has no place in a 20th century legal system let alone a 21^st century one such as ours.

Of course, a false accusation or incorrect charge leading to an arrest should simply be a stressful but ultimately minor inconvenience. If there is not sufficient evidence to alter the presumption of innocence then a court can simply dismiss the case. If the prosecution needs time to attempt to make a case then, so long as the accusation is not of an extremely serious nature (murder, for instance), the court will grant bail to the accused until the next court date. The Constitution states that an arrested person is to be brought before a court within 48 hours thus the options of bail or dismissal become available. The reality; however, is very different.

Spending just 48 hours in a filthy and overcrowded prison cell would be harsh enough for any person, let alone one who has been wrongly arrested. The writer visited one such police station in the Accra area and found over thirty people detained in a small police cell. The temperature was unbearable, the sewage pipe from the toilet was leaking all over the floor, and there was a serious cockroach infestation. Food, water, and healthcare are not provided by the police authorities as the government lacks the will to provide funding in this area. This lack of will stems from a lack of public support for those who are deemed criminals before they are even tried before a court of law.

The constitutionally protected 48 hour time limit is almost never met. A lack of police resources, judicial commitment, legal aid, and political will to change has led to the continuation of an unjust and immoral status quo. In the one police station I visited, I met persons who had been detained for several months without any sort of court hearing. There are many other cases where this unlawful imprisonment can be measured in years, not months, and certainly not in hours.

The criminal justice system exists to protect the innocent as much as to punish the guilty. We must remember that guilt must be proven, and not simply presumed.

Luke Blindell, CHRI Africa

This Article was also published in The Chronicle on the 14/07/2011