In 1970, a schoolgirl complained to the police that Kwasi Asante, a lorry driver, had assaulted her. A policeman was sent to invite Asante to the police station. Asante declined, explaining that he had passengers to discharge and would report later.
The policeman insisted that he accompany him immediately and seized the ignition key to his lorry. A confrontation followed. Asante was arrested and convicted of assaulting a police officer and damaging his trousers.
He appealed.
What did the High Court Say in Asante v. The Republic [1972] 2 GLR 177?
Justice Anterkyi made five important points:
- An invitation is not an arrest. A person merely invited to the police station is not legally obliged to accompany the officer.
- Police can arrest without a warrant. But they must have lawful grounds and comply with the legal requirements for arrest.
- An arrest must be properly communicated. The officer must inform the suspect of the true reason for the arrest. Merely saying that the suspect is wanted at the police station is insufficient.
- Police cannot detain you simply because you decline an invitation. If they wish to prevent you from leaving, they must lawfully arrest you and tell you why.
- Police authority has limits. An officer acting outside lawful powers cannot automatically claim the protection afforded to an officer acting in the execution of official duties.
The High Court quashed both convictions and acquitted Asante.
The decision in Asante is more than fifty years old, but its lessons remain relevant to contemporary law-enforcement practices.
An invitation by law enforcement is a request for a person to appear before investigators, usually to assist with an investigation, answer questions, or respond to allegations.
The law distinguishes between an invitation, a summons, and an arrest. They are not interchangeable. An invitation requests cooperation. A summons imposes a legal obligation. An arrest restricts liberty.
The central concern is whether an invitation is genuinely voluntary or is being used to exercise arrest powers without complying with the law.
- Can you refuse a police invitation?
Yes. A voluntary invitation may be declined, or the recipient may request another appointment. Refusal alone does not constitute a crime or automatically establish grounds for arrest.
However, an invitation does not immunize anyone from lawful arrest. Where the statutory conditions are satisfied, police may exercise their powers of arrest, with or without a warrant, as permitted by law.
The distinction is that police must independently establish the lawful grounds for arrest and comply with the applicable procedures. Police cannot convert an invitation into a compulsory command merely because the recipient declines to cooperate.
- Can police invite you and then arrest you?
Yes. But the invitation itself does not provide the legal justification for arrest. Investigators may discover information that establishes reasonable grounds for arrest. Equally, they may already possess sufficient grounds before issuing the invitation.
In either case, the arrest must satisfy the law’s requirements:
- There must be lawful grounds for arrest, with or without a warrant.
- The officer must communicate the true reason for the arrest and inform the person of their right to a lawyer.
- The arrest must be properly effected, without unnecessary restraint.
- The person’s constitutional safeguards, including the applicable 48-hour requirement, must be respected.
In Asante, the policeman had grounds to arrest without a warrant. But he failed to communicate the reason for arrest and instead attempted to compel compliance with an invitation. The High Court held that his conduct amounted to unlawful imprisonment.
The power to arrest does not excuse failure to follow the law governing arrest. An invitation must not become a convenient device for securing a person’s presence and then depriving them of liberty without complying with these requirements.
- When does an invitation become detention?
An invitation may occur anywhere. Police may approach you at home, in church, at the market, at your workplace, or in another public place and request that you accompany them to the police station.
If you decline a voluntary invitation, they cannot simply prevent you from leaving, block your movement, seize your belongings to compel compliance, or otherwise restrict your liberty without lawful justification.
That was precisely the problem in Asante. The policeman seized the driver’s ignition key and prevented him from leaving after he declined the invitation. The High Court held that this amounted to unlawful imprisonment.
The same principle applies when a person voluntarily reports to the police station but is subsequently prevented from leaving.
An invitation becomes a detention when the person is no longer free to leave, regardless of whether the encounter occurs at the police station or elsewhere.
If the police wish to arrest the person, they must have lawful grounds, exercise their arrest powers properly, and communicate the true reason for the arrest.
Article 14 of the Constitution requires an arrested, restricted, or detained person to be informed immediately of the reasons and the right to a lawyer. The applicable 48-hour requirement cannot be avoided by describing detention as an invitation.
The law does not require a person to first reach the police station before their constitutional rights become operative. Your constitutional liberty travels with you. It does not begin at the police station.
- Can you defend yourself against an unlawful arrest or detention?
Yes, but the right of self-defence is not unlimited. In Asante, the High Court held that the policeman’s unlawful restriction of the driver’s movement amounted to an assault by imprisonment.
The court recognized that Asante was entitled to use reasonable force to free himself and regain access to his vehicle. Sections 31 and 37 of the Criminal Offences Act, 1960 (Act 29), recognize circumstances in which force may be justified in self-defence, defence of property, and protection of lawful rights.
Three important lessons follow:
- Police officers are not above the law. Their official status does not automatically make every interference with a citizen’s liberty lawful.
- You may defend yourself against unlawful restraint. But any force used must be legally justified and limited to what is reasonably necessary in the circumstances.
- Self-defence is not permission for retaliation. Excessive force or violence after the threat has ended may expose a person to criminal liability.
In practice, physically resisting an officer can be dangerous and may lead to further confrontation. Where possible, citizens should clearly object to unlawful restraint, request legal counsel, and pursue appropriate legal remedies.
The right to self-defence does not disappear because the person unlawfully restricting your liberty wears a police uniform. But neither does an unlawful arrest give you unlimited permission to use force. That is another enduring lesson of Asante v. The Republic.
- What should you do when law enforcement invites you?
The fact that an invitation is voluntary does not mean it should be treated casually. Citizens should cooperate with lawful investigations while protecting their constitutional rights.
Five practical lessons:
a. Verify the invitation. Confirm that it comes from an identifiable officer or agency acting within its lawful mandate.
b. Find out why you are being invited. Ask for the general subject matter and whether you are being invited as a witness, complainant, or suspect.
c. Consult your lawyer. Arrange to attend with counsel, particularly where the invitation concerns allegations against you.
d. Do not confuse cooperation with self-incrimination. You may cooperate with investigators without surrendering your constitutional protections. Seek legal advice before answering questions that may incriminate you.
e. Do not simply disappear. If you cannot attend, communicate with investigators and propose another appointment. Although declining a voluntary invitation is not itself grounds for arrest, investigators may exercise lawful arrest powers where independent statutory grounds exist.
The law protects your liberty. It does not provide immunity from lawful investigation.
- What should change?
GOGO believes law-enforcement agencies should adopt a clear and uniform invitation protocol.
Every formal invitation should:
- Identify the investigating agency and responsible officer.
- State the general subject matter and proposed appointment.
- Clarify whether attendance is voluntary or legally compulsory.
- Allow the recipient to arrange attendance through counsel.
- Make clear that any subsequent arrest requires independent legal justification and compliance with constitutional safeguards.
Where investigators decide to arrest, they should document the grounds, communicate the reason, and immediately recognize the person’s rights as an arrested individual.
Such protocols would protect citizens while also protecting law-enforcement officers from avoidable disputes about the legality of their conduct.
The problem is not that law-enforcement agencies lack arrest powers. They possess substantial statutory powers to investigate crime and apprehend suspects.
The problem arises when those powers are exercised without sufficient regard for the distinction between voluntary cooperation and compulsory restraint.
A constitutional democracy cannot permit informal police practices to displace formal legal safeguards.
A citizen should not have to guess whether an invitation is a request, a command, or an arrest waiting to happen.
Nor should the exercise of constitutional rights be interpreted as defiance of lawful authority.
Citizens must cooperate with lawful investigations. Law enforcement must cooperate with the Constitution. Neither obligation cancels the other.
The police have the power to invite and the power to arrest. But they cannot use the language of invitation to exercise the power of arrest without complying with the law.
That was the lesson in 1972, even under the NRC military regime. Surely, what the courts recognized then must be taken for granted today under a Constitution that expressly guarantees personal liberty, due process, and the rule of law.
Constitutional democracy must raise the standard of law enforcement, not lower it.
PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.
Da Yie!
The author, Prof. Kwaku Asare (Kwaku Azar), is an accounting professor and lawyer.
