The High Court in Accra has dismissed an application for bail filed by detained Gregory Afoko who has been in lawful custody for the past eight years pending his retrial.
Afoko, a farmer who is one of the two persons held for the death of New Patriotic Party’s Upper East Regional Chairman, Adams Mahama, had a seven member jury returned 4:3 not guilty for him for on April 27 for charges of conspiracy and murder.
Per the law, the verdict returned by the jury led to a Hung jury. and the High Court in Accra has ordered for his retrial by Justice Afua Merley Wood, a Justice of the Court of Appeal, sitting as an additional High Court judge.
Three weeks after, through his he filed an application for bail and same was moved by his counsel, Stephen Sowah Charway but it was opposed by the Prosecution led by Dorm Esi Fiadzo, the State Prosecutor.
Ruling on the application for bail, the Criminal Division of the High Court in Accra presided over by Justice Louise Simmons said, “there has not been an unreasonable delay” to retrial him.
The Court said, though it was true that the applicant (Afoko) had been in custody for the past eight years, both the prosecution and the defence admitted that within that period two separate trials had been conducted.
This the court said, does not suggest to mean that the years spent in custody by Afoko was due to unreasonable delay.
Justice Louise Simmons also ruled that since April 27, 2023, when the second trial ended, it has only been a month of inactivity.
She said, this period has been explained by the prosecution that, they are waiting for the case to be assigned by the Chief Justice, hence “that cannot be an unreasonable delay.”
While urging the applicant to repeat his application for bail at another time, the court said, the power to grant bail is at the discretion of the judge.
The Court while making references to statutes and other relevant decided cases including the celebrated case of Martin Kpebu II vs the Attorney General, said “I refused the application for bail and accordingly dismissed same.”
According to EIB Network’s Legal Affairs Correspondent, Murtala Inusah, Afoko who is currently on remand at the Nsawam Prison was absent in court.
Motion for bail
Lawyer Charway while moving the application argued that, the basis of their application was premised on the fact that his client has been in custody since May 21, 2015.
He recounted that, since then, there have been two full trials – the first trial he said lasted for about three years but it was aborted just as the parties were to address the court before summary.
The second trial, counsel said, also lasted for a little over three years – between 2019 and 2023, adding that, it went the full length after the state produced 16 witnesses.
He argued that, after the jury examined the evidence presented by the state, the trial ended with four members of the jury making a determination that the applicant (Afoko) was not guilty and three members thought otherwise and a retrial has been ordered as per the law.
Mystery bail
Counsel told the court that, before the case got to the concluding stages of the second trial, there was an application for bail, then bail was granted but for some mysterious reasons even though all the bail conditions were executed, the applicant was not released.
He said, consequently, there was a decision later where the bail was rescinded and the applicant remand for eight years with two full trials spanning a period of about six years.
Counsel submitted that the continuous detention of the applicant is “unfair, is without any justification and is unconscionable.”
Counsel argued again that, it is the trite principle of law that an accused person presumed innocent until proven guilty.
He argued further that, just as he has a constitutional rights to fair trial and rights to be tried within a reasonable trial, there is also a constitutional right to bail of an accused person clearly stated in Article 14:4 of the 1992 Constitution.
Counsel argued that, while he has been in detention, the applicant has not behaved in any rebellious way or whatsoever.
The applicant, he said, had no previous conviction before his arrest eight years ago on May 21, 2015 as his guilt has not been proven.
He said just as the applicant met all the bail conditions in 2019, applicant is prepared to meet all the bail conditions, adding that, he is willing to avail himself as a citizen of the land for the retrial as ordered by the court.
Counsel again said, the applicant has furnished the court with two sureties who are full citizens of Ghana and are of sufficient means to execute the bail when granted
Prosecution opposition
While opposing to the motion, the prosecution stated that, though the applicant was granted bail sometime in 2019, he was not able to fulfil all his bail conditions and that was why he is still in lawful custody.
The state Prosecutor contended that, all through in counsel’s submission, he kept on referring that the applicant had been detained unlawfully and it amounted to unfair, unconstitutional and unconscionable, that she said was not the case.
“We want to set the record straight that even though the Constitution guarantees personal liberty, the same Constitution has spelt out situations where that liberty can be curtailed and one of them is detention pending trial,” she argued.
The State Prosecutor said though it was a hung jury, as it stands now, he is presumed to be innocent but is not a free man until a jury comes out to acquit him.
She said he is currently in lawful custody and that there has not been an unreasonable delay in the case as the first trial was truncated because the 2nd accused (convicted Asabke Alangdi) who was on the run had been arrested.
Ready for Retrial
Following that, she said it was only proper that the case started De Novo since they were charged with conspiracy.
“We have followed due process and as at now, we are ready to go in (retrial) but we have to be assigned by the Chief Justice.
“Our witnesses are ready and they are eager to testify again,” and “as at now it is only the applicant so the case will go expeditiously,” she argued.
“We are assuring the applicant that he will be prosecuted within a reasonable time.
“We are submitting that when granted bail he will not appear to stand trial due to the severity of the trial,” Prosecution expressed.
She contended that, he (Afoko) can bring all the sureties in the world and give the justification but if the applicant absconds what will the state and the family of the deceased derive from the properties used for the justification.
“This is why we are ready to go the extra mile to ensure that justice is served,” the Prosecutor stated.
For Asabke Alangdi, who has since been found guilty by the jury for the charge of conspiracy to commit murder and has been sentenced to death, but has filed an appeal at the Court of Appeal challenging his conviction and subsequent sentencing.
Source: Ghana/Starrfm.com.gh/103.5FM/Murtala Inusah
