Bail is one of those legal terms that gets used often, yet few people outside the courtroom truly understand what it means in Ghana. Many assume it simply involves paying money to the police or the court to secure the release of a loved one. In practice, however, our bail system operates quite differently. In this short piece, I explain the current rules on bail in Ghana, highlight the role of sureties, and discuss the practice of estreating bail bonds.

The Rules on Bail

Bail is not about buying the freedom. Understandably, every person has a right to their personal liberty and freedom of movement enshrined in the 1992 Constitution, however, these rights can be curtailed when a person is suspected of having committed an offence. Under Ghanaian law, bail is a way of balancing two things: the right to liberty of a person who has only been accused and not yet convicted, and the need to make sure that they will return to court for their trial. It is important to know that bail is a discretion and is not meant to punish anyone, nor is it a shortcut to freedom. It is simply a legal mechanism to ensure people deal with their criminal cases while continuing their regular lives outside custody. In an earlier article, arguments for and against bail applications were discussed. Bail pending appeal, which is different from bail pending trial has also been discussed in detail here.

In practice, especially in cases involving property (money, immovable property etc.), judges often use the value of the property to decide on the bail sum. In the Economic and Organized Crime Office (EOCO) case against Chairman Wontumi, there were a lot of criticisms that the bail sum of GHS50 million was onerous, even from the immediate former Vice President of Ghana (read news article here). Others compared it to the bail sum of the former Chief Executive Officer (CEO) of Capital Bank William Ato Essien (read news article here). In fatal accident cases heard at the District Courts, bail sums are significantly lower, often ranging from GHS1000 to about GHS20,000. The law enjoins all courts to ensure that the bail sum is reasonable and must not be excessive considering the circumstances of the case. Bail cannot be used as a form of punishment. If the bail sum is set too high such that there is no way that the accused can meet the conditions, it is usually a ground of appeal of the bail ruling of the court or for an application for review of bail conditions.

The courts have a duty to ensure that exercising the discretion to grant, refuse, review or rescind bail conditions must be made in accordance with the law. In one interesting case before the Supreme Court, Ex Parte Arthur, a High Court judge rescinded the bail granted to an accused person just because his lawyer failed to appear in court to represent him on a number of occasions to attend to Parliamentary matters. The Supreme Court ruled that it was unjust and quashed the ruling and that what the trial court did was tantamount to “visiting the sins of a lawyer on the client.” (Read the full case here)

The Role of Sureties

Unlike in some countries like the United States where cash bail is common, in Ghana bail is primarily cashless. This simply means that no cash amount is required to be paid to the court. Rather, the court usually requires the accused to provide sureties, individuals who agree to guarantee that the accused will appear whenever the court demands. These sureties must often show proof that they own property equal in value to the bail amount set by the court, referred to as justification. The accused and their sureties then sign a bail bond, which is essentially a promise backed by property as a form of collateral. There is however an option to make a deposit instead of the recognizance or bond under section 99 of Ghana’s Criminal Procedure law (Act 30).

If the accused attends all their hearings, nothing happens to the sureties. But if the accused absconds, the bond may be forfeited, and the sureties risk losing their property which was used for the justification. Previously, sureties could be imprisoned for up to six months if the forfeiture proceedings failed, but the Supreme Court in a writ issued by the learned Martin Kpebu, Esq. has ruled that the imprisonment is unconstitutional (read full case here). Being a surety is therefore not a casual favour; it is a serious legal responsibility.

What many people do not know is that in Ghana, sureties are generally jointly and severally liable. To illustrate, if a court sets bail at GHS50,000 and requires two sureties, many assume each person is only responsible for GHS25,000. That is not the case. Each surety is on the hook for the entire GHS50,000 and not just their “share” of the total bail sum. This means that the state can recover the full amount from one surety alone, or split it between them. If one surety ends up paying more, they may have to go to a court with civil jurisdiction to recover the part of it from the other. This rule is meant to make sure that all sureties take their role seriously and keep close watch over the accused person.

A surety who no longer trusts that the accused will appear in court can apply to be discharged from the bond. If the court accepts, the accused will need to find a replacement surety or risk having their bail revoked.

Estreating Bail Bonds

The enforcement of bail bonds is not just a technical process. It is rooted in the Attorney-General’s constitutional powers to prosecute criminal cases on behalf of the State. This is why when a bail bond is forfeited, it is the prosecutor (acting on behalf of the state) who applies to court to estreat the recognizance. The process ensures that sureties are held accountable. The process is strictly not criminal in nature since it is for the payment of a civil debt. (See the case of Daswani v. Commissioner of Police (NO. 2) [1964] GLR 54-56)

In Ghanaian criminal practice, estreating means forfeiting the bond to the state because the accused (or the surety) has failed to comply with the conditions of bail. The process begins when the prosecutor files a motion on notice under section 104 of Act 30, seeking an order of forfeiture of recognizance against the sureties. The motion must be served on the sureties, who are required to appear in court either personally or with counsel. 

An important point concerns the death of a surety. If a surety dies before the recognizance is forfeited, the estate is discharged from liability. But if the surety is alive when the court declares forfeiture, the obligation becomes fixed. In that case, the state may recover the amount from the surety’s estate even after death. Put simply: death before forfeiture wipes out the obligation; death after forfeiture leaves the estate responsible.

Conclusion

Bail in Ghana is not about money changing hands at the police station or the courtroom. It is about trust, accountability, and responsibility. For accused persons, bail is a chance to continue their lives while awaiting trial. For sureties, it is a binding commitment with very real consequences. So, the next time someone asks you to stand as their surety, remember: you are not just signing a piece of paper; you are pledging your property and your word to the court.

Useful Resources/References:

1. Criminal and Other Offences (Procedure) Act, 1960 (Act 30) (full document here)
2. Practice Direction (Determination of Bail and Consequential Matters), 2019 (full document here)