The Coronavirus pandemic might be the worst thing to happen on Earth since the #MeToo movement took down House of Cards. R.I.P Frank Underwood.
As an entertainment journalist, I should be writing about how the pandemic has increased the demand for content and has revolutionized content creation or how downloads of TikTok and creation of TikTok stories have grown exponentially in the past week or how the absence of European football on DSTV has increased the use of Netflix among Ghanaians or how the communication on the state of the pandemic in Ghana has raised Kojo Oppong Nkrumah’s political profile. But as a law student, I just want to speak on the legality of certain acts of the Arms of State (specifically the Legislature) and speculate on its possible effect in the future of governance in this country.
IT ALWAYS STARTS WITH AN ISSUE
On Sunday, March 15, 2020, the President of Ghana, Nana Akufo Addo, placed a ban on public gathering in Ghana to curb the spread of the Coronavirus. Some jurists argued that the call by the president was just a suggestion and not enforceable under law because it is not backed by any legal authority. They questioned the authority of the president to make such a call without the authorization of Parliament.
In response to the criticism, the Information minister, Hon. Kojo Oppong Nkrumah, informed the nation that Parliament was still deliberating on the appropriate sanctions to take against people who flout the “orders” of the president. On March 20, 2020, Parliament signaled to the world that they had completed deliberations and have passed a bill which had been assented by the President, the Imposition of Restrictions Act (Act 1012).
The object of the Act, per its Section 1, is to provide powers to give effect to paragraphs (c) (d) and (e) of Clause 4 of Article 21 of the 1992 Constitution. The three paragraphs mentioned states that under law, restrictions could be imposed on the movement or residence and entry of persons within the jurisdiction of Ghana for defence, public safety and public health. It also prohibits the teaching and propagation of doctrines which encourages disrespect for the nationhood of Ghana. Subsection (1) of Section 2 of Act 1012 gave the powers to impose restrictions to the president.
S.2(1) of Act 1012 states that, “The President may, acting in accordance with the advice of relevant person or body, by Executive Instrument, impose restrictions specified in paragraphs (c), (d) and (e) of clause (4) of Article 21 of the Constitution.”
There are several issues I could raise here, and a typical issue will be whether the president’s restrictions of public gathering which happened before the passing of the Act is lawful but I want to focus on whether the Act itself is Constitutional and whether Act 1012 was passed by the Parliament is in its best form.
In 1958, Dr. Kwame Nkrumah was certain that a foreign-backed assassination plot had been planned against him after an MP was charged with smuggling weapons into the country for a planned infiltration of the Ghana Armed Forces. Nkrumah determined that a heavier hand was necessary to rule. He made his case to the National Assembly which passed Preventive Detention Act (PDA) after it was drafted by the Deputy Attorney-General, an Irishman named Mr. Bing. The PDA was signed into law by the Governor-General, which incidentally happened to be, at the time, Chief Justice Sir Arko Korsah (the Governor-General Lord Listowell was out of town). This decree allowed the Governor-General to incarcerate individuals for up to five years (later extended to ten in 1959 and indefinitely in 1962) without charge or trial.
The PDA is not the first time Preventive Detention was used in Ghana. The arrest of the Big Six following the 1948 riots could be said to be Preventive Detention because they never faced trial for any offence or even charged but yet detained.
Today, there seems to be a consensus among jurists that the Preventive Detention Act was a bad law because of the effect and use of the law. However, there is an age-old jurisprudential debate on what makes a law bad. Whether it is the content of the law or there was an adherence to procedure to pass the law. Because the content of the law is usually a matter of philosophical persuasion, the procedure seems to be modern consensus on what makes a law a good or a bad law. That is to say, for a law to be a bad law, it must be in contravention of the procedural requirements for passing laws in a said jurisdiction. The Constitution is an administrative instrument, for which reason a law being in contravention of the Constitution is the law not meeting the procedural requirement.
Even in 1961, the knock against the PDA was the fact that it didn’t adhere to the procedural requirements of other laws and the 1960 Constitution. All the seven points Dr J.B. Danquah raised against the Act were matters of procedure. Dr Danquah’s argument was that the PDA was in contravention of the Habeas Corpus Act and the Criminal PROCEDURE (emphasis mine) Code as well as Article 13 and 21 of the 1960 Constitution.
To counter Dr Danquah’s argument, the Deputy Attorney-General, Mr. Bing, raised the case of Liversidge v. Anderson. In that case, the Home Secretary was permitted to intern people if he had “reasonable cause” to believe that they had “hostile associations”. This was permitted by Regulation 18B of the Defence (General) Regulations 1939 (UK). The majority of the House of Lords held that the legislation should be interpreted to give effect to what Parliament intended. If the Home Secretary (Andersen) acted in good faith, then he did not need to disclose the basis for his decision. So basically the Court said, if the Home Secretary was satisfied that someone should be detained, they can be detained without him having to disclose the reason why they were detained.
Relying on the precedent set by Liversidge v. Andersen, the Supreme Court of Ghana held the PDA to be good law in the landmark Re Akoto case. The Court said Parliament could make any law as long as the said law doesn’t change the entrenched articles of the Constitution.
The majority decision in Liversidge v. Anderson was qualified though. While declining to compel the Home Secretary to disclose his reasons for judicial scrutiny, the Law Lords made it clear that their decision was limited to the wartime situation, which is a time of grave national emergency. They did not, therefore, spell out a general proposition of the type that the Supreme Court of Ghana did. Many jurists argue that the Supreme Court’s application of Liversidge and Andersen was wrong. The Supreme Court of Ghana took a case that dealt with matters in a wartime and made it applicable to all times. The Supreme Court in so doing gave the Legislature more power than the Constitution intended it to have.
The Supreme Court of Ghana has yet to reverse the decision in Re Akoto. As bad as jurists say the ruling in that case was, it is still good legal precedent in Ghana.
DOES IT APPLY HERE?
On Wednesday, 11th March, 2020, the Director-General of the World Health Organisation, Mr. Tedros Adhanom, declared that the novel Coronavirus, COVID-19, was a pandemic. Given that the COVID-19 pandemic is a public health and public safety issue, with some countries like the USA and France even making it a matter of global security, it is a matter of “grave national emergency”. The decision in Liversidge v. Andersen could be applied in good faith. Given that the Liversidge case is a foreign case, it would have only had persuasive precedent in Ghana but the Re Akoto’s application of the case made it binding in Ghanaian jurisdiction.
The whole world is at war with the virus, the way the world was at war in World War 2 when the Liversidge v. Andersen decision was made. There is no question, it is in the interest of public safety and public health, as prescribed by the Constitution, to impose restrictions in accordance with the Constitution. Parliament in passing the Imposition of Restriction Act (Act 1012) have acted in good faith.
The legality of Act 1012 is not in question. The question is, given the history of this county, shouldn’t Parliament have required that the President impose the restrictions in consultation with Parliament? Shouldn’t history have guided Parliament?
At this point, we are rallying around the flag and thus the man holding the flag currently, Nana Akufo Addo. Though “hope is not a plan”, we are hopeful he is only going to use Act 1012 in the public interest.
The issue here is whether Parliament passed Act 1012 in its best form.
S.2(1) empowers the president to impose restrictions on people within the jurisdiction of Ghana by Executive Instrument upon the advice of relevant persons and bodies. In the Executive Instrument on COVID-19 (E.I 64), the President was said to have acted in consultation with an Inter-Ministerial Committee. That means men who are appointed by the President, who serve at his pleasure advised him on imposing restrictions on parts of the country.
According to the Interpretation Article of the 1992 Constitution, government is any authority by which the EXECUTIVE AUTHORITY of Ghana is duly exercised (Art.295). Article 58(1) vested that EXECUTIVE AUTHORITY in the President. By my understanding, anybody the president appoints to be in his government is his surrogate. All the ministers are just the surrogates of the president. “Agent” is a literal English synonym for “Minister”. Having an Inter-Ministerial Committee advising the president on a matter as grave as imposing a restriction on the human rights of Ghana is a recipe for tyranny. Parliament provided the President with the life jacket to jetski in those dangerous waters.
Act 1012 removes the check and balances the Constitution intended to place on the president by clothing him with the enabling powers it does. Article 31 of the Constitution provides a guideline for how Emergency Powers could be exercised by the President. Clause (1) of Article 31states that the president may, in accordance with the advice of the Council of State, declare a state of emergency in Ghana or parts of Ghana. Clause (2) states that the president shall place immediately before Parliament the facts and circumstances of the state of emergency. Clause (3) gives Parliament the powers to revoke the state of emergency declared by the President within 72 hours.
The Constitution seeks to have Parliament act as a check on the emergency powers of the President. I believe Article 31 should have guided the drafting of Act 1021. Parliamentary check could have been written into Act 1012. With Act 1012, Parliament sold its birthright to the President. If in future, the President steals their blessing, they have no right to cry foul.
As a media person, the fact that the Act didn’t mention the media as essential service and E.I 64 totally ignored the media is not lost on me.
WORSE CASE SCENARIO
I started my article by referencing the Netflix series, House of Cards. I will end by referencing same. At the ending of Season 4, it became apparent that President Frank Underwood was going to lose the elections. His plan was to stop people from voting by creating fear and panic in the country. At the beginning of Season 5, they was a deadlock in the elections because some states, the states he was projected to lose in, closed their polls due to terrorism scare. This is why Kanye West said, “no one man should have all that power.” (I would have been disappointed in myself if I ended this article without quoting a rapper.)
I can imagine a situation where a future president uses Act 1012 to manipulate elections. For example, if an NDC President decides to impose restrictions on say the Ashanti Region on an Election Day or an NPP President imposes Restrictions on the Volta Region. French author Jules Verne once said, “Anything one man can imagine, other men can make real.” What the writers of House of Cards can imagine, a power-drunk politician can make real. Actually history has shown us examples.
On February 27, 1933, there was a fire in Germany. It was an arsonist attack on their Parliament building. Marinus van der Lubbe, a Dutch communist was alleged to have started the fire. The fire was framed as an attack on Germany by communists. Germany had to respond. It was to stop the coming “Communist Revolution” before it takes over Germany.
The day after the fire President Hindenburg signed the Reichstag Fire Decree into law. The Reichstag Fire Decree suspended most civil liberties in Germany, including free of speech, freedom of the press, the right to free association and the secrecy of the post and telephone, which means the government could now have access to people’s private correspondences. Days later, the Enabling Act of 1933 was passed. It gave the Chancellor, Adolf Hitler, the powers to pass any decree without going through the German parliament. With those two legally passed laws, Adolf Hitler was empowered to commit the atrocities which led to World War 2. The laws were passed in a time of crisis to give Adolf Hitler “emergency powers”.
Adolf Hitler didn’t make himself the dictator he is written into history as. He was empowered by laws which were passed in times of a national emergency.
The irony is, Hitler’s rise was as a result of the people’s opposition to authoritarian rule. The Great Depression in the US crushed the US Markets and led to a financial crisis like what we are told the world is heading towards if the Coronavirus persists. Because the German economy was dependent on American money at the time, it was hit very badly, leading to hyperinflation, job loss and poverty in Germany. The Chancellor at the time, Bruening, instead of coming with a financial program that would help matters wanted to shift responsibilities. Chancellor Buening asked the president to evoke the emergency powers in the Constitution and rule by decree. The people revolted. They didn’t like that the Chancellor and Parliament did nothing and they also didn’t like that the President was given such arbitrary powers. The President held an election to pacify the people.
The Nazi party was a small party before this election but Adolf Hitler’s charismatic rhetoric offering the people a scapegoat for their problems, Jewish capitalists, sounded persuasive in a time the people were looking for a saviour. He moved from previously having less than a percent of support to getting 36% of the vote cast. He was appointed the Chancellor. So Hitler rose up as the people’s champ in a time of crisis so the people were comfortable enough to give arbitrary power legally in 1933. We know how that ended.
Written by Nenebi Owura-Akuaku with editorial support from Rev. Jonathan Quabla-Afrique Ahali and Naa Dedei Tagoe provided. They are all final year law students of Central University. Nenebi’s book on the Ghanaian media and entertainment industry, Guards of the Fourth Estate, is scheduled for a 2020 release.