Resisting Unlawful Arrest: A Ghanaian case study by Jude Serbeh-Boateng

Mr. Asante had just arrived from Kumasi. Trips to Kumasi always left him very drained. You could see the signs of exhaustion as he lowered down the goods that were carefully packed on the space on top of his bus. He decided to catch his breath on the bench under the tree where the other drivers sat. On any other day he would have gone home after such a tiring trip but this was the first day of December, which also meant that the day before had been a payday; and all the drivers were aware of the fact that passengers hardly asked for their change immediately after payday and that made business more lucrative.

So he begun to ‘load’ another set of passengers. In singles and pairs, people climbed into the bus and Mr. Asante knew it was only a matter of time before the bus got full. He got down to take a casual stroll around the bus station. On return, he found that there were only two more seats to fill. That was perhaps the reason why he noticed, with keen interest, the two people who were approaching his bus from a distance. He had his gaze set on them until they were close enough and then he went into the frenzy of a driver who could not wait to leave “Yes! Last two, last two!” As they inched closer, he made one of them out—that was his neighbour, the young lady he had pulverized during a huge quarrel before his trip to Kumasi. The man he did not at all recognise. Was he coming to take revenge? At this point his mood had changed from glad and expectant to dark and contemplative.

The man was particularly lanky and his faded shirt and khaki trousers betrayed this obvious fact with the sheer space they left in their wake. He introduced himself as a police constable, taking out a small card which he flashed in Mr. Asante’s face. “You are wanted at the station” he muttered. When Mr. Asante inquired about why he was wanted at the station, he was told that the superintendent wanted to see him for a chat. “I don’t know the superintendent and quite frankly I don’t have time for friendly chats” he said “as you can see I have passengers to transport” he added.

The constable had started losing his patience and, naturally,threats of what would happen if he refused to follow him to the station followed. Not moved by the threats, Mr. Asante jumped into the driver’s seat, pushed his head out of the window and shouted the words that would drive any policeman crazy: “tell your superintendent that I will see him at my own time”

He had hardly revved the engine of the car when the policeman charged like a mad bull towards the bus. He forced the door open and dragged Mr. Asante out of the bus with the force of a wild beast. This surprised the onlookers who did not expect such brute force from a man who was so thin you thought he’d break. Mr. Asante stumbled a little but still managed to stand his ground, but before he had fully gathered composure, his ignition key was snatched from him and he was pushed down by the now enraged policeman. In trying to get his key back, a physical confrontation ensued between the policeman and Mr. Asante.

The first blow landed squarely on the policeman’s face and it sent him tumbling on the ground, landing heavily on his buttocks. Mr. Asante kept kicking him on the floor until he was restrained by the other drivers at the bus station. They also helped the policeman to his feet and that was when it was noticed that he had ripped the back of his trousers. That might not have been much of a problem if he had not been ‘freeballing’ that day—so that his butt-cheeks had now become a sight for sore eyes. With the humiliation of a man who cannot afford an underwear, he limped his way out of sight.

The next morning Mr. Asante was arrested and charged with assault of a police officer and damaging his property (the khaki trousers). He was subsequently convicted of these charges. On appeal he argued that his arrest was unlawful and as a citizen of Ghana he had the right to resist such an arrest. Can you guess the outcome of the appeal?

PS: These are the facts of the famous case of Asante V. The Republic [1972] 2 GLR @ 177 that went to the High Court of Ghana on appeal from a magistrate court and was presided over by Anterkyi J. The High Court fundamentally disagreed with the conviction of Mr. Asante. As far as the High Court was concerned, the determination of the case turned on whether or not his arrest was lawful.

It was held that the arrest was unlawful because according to Section 7 of Act 30, unless the arrestee is caught in flagrante delicto, the arrestor shall inform the arrestee of the cause of the arrest and where he is acting under a warrant, notify the arrestee of the substance of the warrant and show it to him if he so desires. Thus, the police constable had effected an unlawful arrest by not informing him of the cause of his arrest.

It was further held that the police officer had actually committed the prior assault of imprisonment in refusing to leave the spot where the appellant was and in taking possession of his ignition key. The appellant was therefore entitled to compel the police officer to let him have access to his vehicle to enable him to free himself from the continuing assault of imprisonment. There being the ordinary technical assault by the police officer, a plea of self-defence was available to the appellant.

In respect of the charge of damaging the policeman’s property, the court held that the lower court erred in awarding damages for the cost of the property. It held that damages could only to be awarded for only the damaged part of the property—so in this case the cost of sewing the torn part of the cloth. They reasoned further that it devolved on the respondent to prove that the damage was caused intentionally before damages could be awarded. Having failed to prove that Mr. Asante damaged the property intentionally, the respondents were awarded no damages. Simply put, Mr. Asante walked out of the High Court that day a free man, having been cleared of all charges and liabilities. Thus, he was justified in resisting arrest in the manner he did.

Do you agree with the ruling? Article 14 and 21 of the 1992 Constitution guarantees every Ghanaian the right to his freedom of movement except, among other exceptions, he is put under a lawful arrest. Therefore, when this freedom of movement is infringed upon, unlawfully, the citizen has the right to resist it. The question, though, is this: what is the extent of this resistance? This question is asked because if the court equates the right to resist arrest to self-defence, it would seem that the victim would have to apply force that is reasonably required to defend or free himself. In Mr. Asante’s case, however, he kept kicking the policeman even after he had knocked him down—at which point it looked more of an assault on the policeman than an attempt to free himself or defend himself.  Unfortunately, the High Court did not take judicial notice of this fact unlike other cases where self-defence was deemed inapplicable because it was not proportional. So it is still unclear the extent a citizen can go to resist an unlawful arrest. But from a close reading of the decision in Asante V. The Republic, it seems almost as though a victim of an unlawful arrest may use any means he deems necessary. Could it be that a citizen’s right to liberty is so crucial that any form of resistance is justifiable? I guess that is a question for the courts.