Following last week’s conviction and 20-year prison sentence imposed on the Ashanti Regional Chairman of the New Patriotic Party (NPP), Bernard Antwi-Boasiako, popularly known as Chairman Wontumi, attention is gradually shifting to the legal options available to him.
Lawyers for the NPP stalwart have indicated their intention to challenge both the conviction and sentence before the Court of Appeal, while the party has also announced that it will pursue the available legal processes in response to the High Court’s decision.
One possible application that may accompany such an appeal is a request for bail pending appeal, a legal process that allows a convicted person, in limited circumstances, to seek temporary release from custody while an appellate court determines whether the conviction or sentence should be overturned.
But what does the law require before a convicted person can be granted bail pending appeal?
Understanding Bail Pending Appeal
Bail pending appeal is recognised under Ghana’s criminal justice system as a distinct form of bail. Unlike bail pending trial or police enquiry bail, where the accused person has not yet been convicted, bail pending appeal concerns a person whose guilt has already been established by a court of competent jurisdiction but who is challenging that decision before an appellate court.
The legal basis for such an application is found in section 33(1) of the Courts Act, 1993 (Act 459), which provides that the court before which a person is convicted, or the court to which an appeal is made, may, if it thinks fit, grant the appellant bail pending the determination of the appeal. The provision makes clear that the grant of bail pending appeal is discretionary. It is not an automatic consequence of filing an appeal. Through decisions such as R v Tunwanshe and Fynn & Another v The Republic, the courts have developed principles to guide the exercise of that discretion.
The courts have consistently approached such applications with caution because, unlike an accused person awaiting trial, an applicant for bail pending appeal has already been convicted. Until the conviction is overturned, the sentence remains valid in law.
The Grounds for Granting Bail Pending Appeal
In Fynn & Another v The Republic, Taylor J outlined four grounds that may justify the grant of bail pending appeal. An applicant does not necessarily have to establish all four grounds. Depending on the circumstances of a particular case, demonstrating one sufficient ground may justify the exercise of the court’s discretion.
1. Exceptional or Unusual Circumstances
The existence of exceptional or unusual circumstances may justify releasing a person who has already been convicted and sentenced. The courts have deliberately avoided giving a closed definition of what amounts to exceptional circumstances. This is because what may qualify as exceptional depends largely on the facts of each case.
Such circumstances may arise where there are serious personal or humanitarian considerations, including situations where the appellant suffers from a severe medical condition requiring specialised treatment or personal attention that cannot reasonably be provided while in custody. They may also arise where circumstances surrounding the appellant’s continued detention are so unusual that keeping the person in custody pending the appeal would result in an unfair or exceptional hardship.
In The Republic v Stephen Kwabena Opuni & Others, Amadu JA (as he then was) observed that the meaning of “exceptional” is imprecise but generally refers to circumstances that are unique and beyond ordinary experience.
2. An Apparently Wrong Conviction or a Strong Appeal Case
The second ground concerns whether the conviction or sentence appears, on a preliminary assessment, to be wrong and whether the appeal has obvious prospects of success. Coming under this ground, the applicant must show that there appears to be a significant legal or factual error in the trial court’s decision which may warrant intervention by the appellate court.
In Isa v The Republic, the court explained that a conviction may be considered prima facie wrong where, for example, the trial court lacked jurisdiction, imposed an unlawful sentence, breached principles of natural justice, violated the fundamental rights of the appellant, or applied an incorrect legal principle in reaching its decision.
The ground therefore requires more than a mere disagreement with the judgment. The applicant must point to an apparent error which, on a preliminary view, raises a genuine possibility that the conviction may be overturned on appeal.
3. The need to Prepare the Appeal
The third ground relates to whether the appellant’s release would materially assist in preparing the appeal.
Although a convicted person no longer enjoys the presumption of innocence, courts recognise that the appeal process requires meaningful engagement between an appellant and legal counsel.
Appeals can involve complex legal arguments, extensive review of trial records, and detailed consultation between the appellant and counsel. In circumstances where incarceration creates significant practical difficulties that may affect the effective preparation and presentation of the appeal, the court may consider whether temporary release is necessary.
4. The Possibility of Delay in Determining the Appeal
The final ground concerns possible delay in the appeal process. The court considers whether, having regard to the length of the sentence and the likely duration of the appeal proceedings, the appellant may serve all or a substantial portion of the sentence before the appeal is determined.
This ground requires a balance between two competing considerations: the seriousness of the conviction and sentence on one hand, and the possibility that delays in the appellate process may render the appeal ineffective on the other.
In Akrong & Another v The Republic, the court emphasised that the applicant must show that there is a real possibility that the sentence, or a significant part of it, may be served before the appeal receives final determination.
Background
The Accra High Court sentenced Bernard Antwi-Boasiako, popularly known as Chairman Wontumi, to 20 years’ imprisonment after finding him guilty of offences relating to the unlawful assignment of mineral rights and the facilitation of unauthorised mining activities at Samreboi in the Western Region.
Justice Audrey Kocuvie-Tay convicted Chairman Wontumi and Akonta Mining Limited on various counts relating to the unlawful assignment of mineral rights and the facilitation of unauthorised mining activities at Samreboi in the Western Region.
The court also convicted Akonta Mining Limited on related counts after holding that the prosecution had established the essential elements of the offences beyond reasonable doubt.
