|
Supreme Court-, invoked the
original jurisdiction of - Articles
2(1)(b) and 130(1) of the 1992
Constitution and Rule 45 of the
Supreme Court Rules, 1996 (CI
16) - Aliens Act, 1963 (Act
160) - Whether
, the President of the Republic
of Ghana acted
unconstitutionally in his
failure to obtain the requisite
ratification by an Act of
Parliament - Whether the two
persons who are suspected
terrorists and their settlement
in Ghana, pursuant to the said
agreement, ts
unconstitutionality - Whether
the agreement under which the
said persons were settled in
Ghana is not of the type of
agreement contemplated by
Article 75
HEADNOTES
The Plaintiffs’ case is that by
an agreement made sometime in or
about 2016, between the
Government of the United States
of America (the USA) and the
President of the Republic of
Ghana, two Yemeni citizens,
namely, Mahmud Umar Muhammed Bin
Atef and Khalid Muhammad Salih
Al-Dhuby (hereinafter referred
to as 'the said persons' or the
'said two persons'), formerly
held in detention by the USA at
its facilities at Guantanamo
Bay, were transferred to Ghana
for settlement. The Plaintiffs
aver that the President of
Ghana, in agreeing to the said
transfer to and the settlement
of the said persons in Ghana,
supposedly ‘on humanitarian
grounds and also in the name of
reaching out to the USA in their
time of need’, acted without
parliamentary ratification as
dictated by Article 75 of the
Constitution. Therefore,
according to the Plaintiffs, the
agreement and the action taken
pursuant thereto are
unconstitutional. Furthermore,
the Plaintiffs averred that the
said two persons were suspected
terrorists and their settlement
in Ghana, pursuant to the said
agreement, apart from its
unconstitutionality, was in
breach of Article 58(2), as the
action of the President was in
violation of sections 12 and 35
of the Anti-Terrorism Act, 2008
(Act 762) and section 8(1)(h) of
the Immigration Act, 2000 (Act
573), which effectively prohibit
the migration into Ghana or the
harbouring of any person
suspected of terrorism.
Accordingly, the Plaintiffs
submitted that the executive
powers of the President under
Article 58 are not absolute but
are to be exercised in
accordance with the provisions
of the Constitution and
consequently, by the aforesaid
failures to comply with the
Constitution the President was
in violation of the same -
HELD :-
Consequently, we hold that, upon
a true and proper interpretation
of Article 75 of the 1992
Constitution of Ghana, the
President of the Republic of
Ghana, in agreeing to the
transfer of Mahmud Umar Muhammad
Bin Atef and Khalid Muhammad
Salih Al-Dhuby to the Republic
of Ghana, required the
ratification by an Act of
Parliament, or a resolution of
Parliament supported by the
votes of more than one-half of
all the members of Parliament,
and by virtue of the failure to
obtain such ratification the
agreement is unconstitutional.
DESSENTING :- To
conclude just as a customary
agreement is not turned into a
common law agreement simply
because it has been committed
into writing, an agreement
concerning the reception,
residence and expulsion of
aliens which is an indisputable
power of sovereignty of states
remains as such, even though it
has the features of a treaty,
and is not to be prejudiced or
held to be within the purview of
Article 75 of the Constitution.
Indeed the government is
constitutionally bound under
article 73 to conduct its
affairs in line with such
international principles
For all these reasons I with
diffidence, cannot go along with
the majority decision of this
case.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Articles
2(1)(b) and 130(1) , Article
75 , Article 58(2), Articles 14
and 15
Anti-Terrorism Act of 2008 (Act
762)
Supreme Court Rules, 1996 (CI
16), Rule 45
Immigration Act of 2000 (Act
573),
Evidence Act 1973 (NRCD 323),
State Secrets Act, 1962 (Act
101)
Interpretation Act, 2009 (Act
792) Section 10(4)
Aliens Act, 1963 (Act 160)
Provisional National Defence
Council (Establishment)
Proclamation, 1981 (PNDCL 42)
S 8(2)
CASES REFERRED TO IN JUDGMENT
Ex Parte Pinochet (No.3) [2000]
1 AC 147 at 201:
Glenister v President of the
Republic of South Africa [2001]
ZACC 6, 2011 (3) SA 347 (CC)
Captan v. Minister for Home
Affairs (Minister of Interior) (1970)
2 G&G 1223 2d at 1228 Akufo-Addo
C.J.
Principal Immigration Officer v.
O’Hara (1994)
1 LRC 138, Supreme Court,
Zimbabwe, at 144-145.
Edusei v. Attorney-General and
Another (1996-97)
SCGLR 1 at 6 Amua-Sekyi JSC
Republic v. High Court
(Commercial Division), Accra; Ex
Parte Attorney-General (NML
Capital LTD & Republic of
Argentina Interested Parties) (2013-2014)
2 SCGLR 990
Ghana Bar Association v.
Attorney- General(Abban
case) (2003 – 2004)1 SCGLR 250.
BOOKS REFERRED TO IN JUDGMENT
Vienna Convention on the Law of
Treaties, 1969 provisions of
Article 1,Articles 11 and 14
UN 1951 Convention on the Status
of Refugees Article 1 (as
amended by the 1967 Protocol
thereto; or Article 1 of the
1969 AU Convention Governing
Specific Aspects of Refugee
Problems in Africa).
International Law Philimore,, section
220:
DELIVERING THE LEADING JUDGMENT
AKUFFO (MS), CJ:-
DESSENTING :-
ATUGUBA, JSC:-
COUNSEL.
NANA ADJEI BARFOUR-AWUAH FOR THE
PLAINTIFF
DOROTHY AFRIYIE-AWUAH, CHIEF
STATE ATTORNEY FOR THE DEFENDANT
JUDGMENT
AKUFFO (MS), CJ:-
Background
By a writ filed on 21st
of January, 2016, the
Plaintiffs, in their capacities
as citizens of Ghana, invoked
the original jurisdiction of the
Supreme Court pursuant to
Articles 2(1)(b) and 130(1) of
the 1992 Constitution and Rule
45 of the Supreme Court Rules,
1996 (CI 16), seeking against
the Defendants the following
reliefs:
i.
"A declaration that on a
true and proper interpretation
of Article 75 of the 1992
Constitution of Ghana, the
President of the Republic of
Ghana, by agreeing to the
transfer of Mahmud Umar Muhammad
Bin Atef and Khalid Muhammad
Salih Al-Dhuby (both profiled
terrorist and former detainees
of Guantanamo Bay) to the
Republic of Ghana, required the
ratification by an Act of
Parliament or a resolution of
Parliament supported by the
votes of more than one-half of
all the members of Parliament.
ii.
A declaration that on a
true and proper interpretation
of Article 75 of the 1992
Constitution of Ghana, the
President of the Republic of
Ghana acted unconstitutionally
in his failure to obtain the
requisite ratification by an Act
of Parliament or a resolution of
Parliament supported by the
votes of more than one-half of
all the members of Parliament
when he agreed with the
Government of the United States
of America to transfer Mahmud
Umar Muhammed Bin Atef and
Khalid Muhammad Salih Al-Dhuby
to the Republic of Ghana.
iii.
A declaration that the
reception of the said detainees
into the Republic of Ghana by
the President of Ghana is in
excess of his powers under the
constitution and hence
unconstitutional.
iv.
A declaration that on a
true and proper interpretation
of Article 58(2) of the 1992
Constitution of Ghana, the
President of the Republic of
Ghana is under obligation to
execute and maintain the
Anti-Terrorism Act of 2008 (Act
762) and the Immigration Act of
2000 (Act 573), both being laws
passed under the 1992
Constitution of Ghana.
v.
A declaration that the
President of Ghana breached
Article 58(2) of the 1992
Constitution of Ghana by
agreeing with the Government of
the United States of America to
have Mahmud Umar Muhammed Bin
Atef and Khalid Muhammad Salih
Al-Dhuby transferred to the
Republic of Ghana.
vi.
A declaration that on a
true and proper interpretation
of the 2nd Schedule
of the 1992 Constitution of
Ghana, the President of the
Republic, by agreeing to the
transfer of Mahmud Umar Muhammed
Bin Atef and Khalid Muhammad
Salih Al-Dhuby to the Republic
of Ghana has broken the
Presidential Oath.
vii.
A declaration that the
reception of Mahmud Umar
Muhammed Bin Atef and Khalid
Muhammad Salih Al-Dhuby and
their continuous stay in the
Republic of Ghana is unlawful.
viii.
An order directed at the
President and his Assigns, for
the immediate removal and return
of Mahmud Umar Muhammed Bin Atef
and Khalid Muhammad Salih Al-Dhuby
from the Republic of Ghana to
Guantanamo Bay.
ix.
Such further or other
orders as the Honourable Supreme
Court will deem fit.
PLAINTIFFS’ CASE
The Plaintiffs’ case is
that by an agreement made
sometime in or about 2016,
between the Government of the
United States of America (the
USA) and the President of the
Republic of Ghana, two Yemeni
citizens, namely, Mahmud Umar
Muhammed Bin Atef and Khalid
Muhammad Salih Al-Dhuby
(hereinafter referred to as 'the
said persons' or the 'said two
persons'), formerly held in
detention by the USA at its
facilities at Guantanamo Bay,
were transferred to Ghana for
settlement. The Plaintiffs aver
that the President of Ghana, in
agreeing to the said transfer to
and the settlement of the said
persons in Ghana, supposedly ‘on
humanitarian grounds and also in
the name of reaching out to the
USA in their time of need’,
acted without parliamentary
ratification as dictated by
Article 75 of the Constitution.
Therefore, according to the
Plaintiffs, the agreement and
the action taken pursuant
thereto are unconstitutional.
Furthermore, the Plaintiffs
averred that the said two
persons were suspected
terrorists and their settlement
in Ghana, pursuant to the said
agreement, apart from its
unconstitutionality, was in
breach of Article 58(2), as the
action of the President was in
violation of sections 12 and 35
of the Anti-Terrorism Act, 2008
(Act 762) and section 8(1)(h) of
the Immigration Act, 2000 (Act
573), which effectively prohibit
the migration into Ghana or the
harbouring of any person
suspected of terrorism.
Accordingly, the
Plaintiffs submitted that the
executive powers of the
President under Article 58 are
not absolute but are to be
exercised in accordance with the
provisions of the Constitution
and consequently, by the
aforesaid failures to comply
with the Constitution the
President was in violation of
the same.
The Plaintiffs annexed to
their Statement of Case, as
Exhibits GB1 and GB2, copies of
the documents which they claimed
are USA Department of Defence
profiles on the said persons,
respectively, to support their
averment that they were
terrorists, having been assessed
in these documents to be such,
and held in detention by the
USA, at Guantanamo Bay, for
approximately 14 years.
Furthermore, the Plaintiffs also
averred that, following a
decision of the Federal
Government of the USA to close
down its detention centre on
Guantanamo Bay and release
detainees thereat, both Houses
of the USA Congress voted
against a Bill proposing to
relocate and settle former
detainees in the USA, for the
reasons that the national
interest of the USA would not be
served by such action as such
persons posed a threat to the
country’s national security.
They averred that it was after
this rejection by the USA
legislature that the President
of Ghana entered into the
agreement and took the action
that has given rise to this
matter. The Defendant did not
deny this particular averment
and since the same is of public
notoriety, we take judicial
notice of the fact.
The Plaintiffs also
adverted to the fact that the
detention of people at the
Guantanamo bay detention centre
for long stretches of time
without trial or any court order
had been a matter of concern in
terms of international human
rights norms and contended that
the transfer of the said two
persons to Ghana to be held
under conditions amounting to
restriction of their freedom of
movement without due process
amounts to breach of Articles 14
and 15 of the Constitution.
DEFENDANT’S CASE
The Defendant was rather
tardy in filing its Statement of
Case, and upon an application
was granted an extension of time
within which to file the same.
It is noteworthy that, in the
affidavit in support of its
application for extension of
time, there is a deposition that
the delay in filing a Statement
of Case was because the
Defendants had made a request to
the Embassy of the USA in Ghana
for certain undisclosed relevant
information that would
facilitate the completion the
Defendants’ Statement of Case.
However, we observe that no such
information was ever mentioned
in the Statement of Case
eventually filed by the
Defendant.
The Defendant filed the
Statement of Case on 16th
March 2016, wherein the
Defendant made a number of
submissions, the most salient of
which may be summarized as
follows:
a.
The agreement under which
the said persons were settled in
Ghana is not of the type of
agreement contemplated by
Article 75. They argued that the
said article does not cover
every form of agreement that
Ghana might enter into with
another state or non-state actor
as it covers only treaties,
agreements and conventions in
more solemn form than mere
diplomatic notes. Therefore,
according to the Defendant there
was no need for the agreement in
this case to be submitted to
Parliament for ratification.
b.
The Plaintiffs have failed
to show in what manner Article
58(2) has been violated and, in
any event, the violation of an
ordinary statute such as the
Anti-Terrorism Act or the
Immigration Act would not
justify the invocation of the
original jurisdiction of the
Supreme Court.
c.
The exhibits attached to
the Plaintiffs’ Writ, which form
the factual foundation of their
claim (Exhibits GB1 and GB2) are
of dubious authenticity (section
136(1) of the Evidence Act 1973
(NRCD 323), since they were
obtained from undisclosed or
unofficial sources, the authors
or signatories of which cannot
be verified or cross examined
(section 161 of NRCD 323), and
also amount to hearsay evidence,
which in the circumstances, do
not fall within the exceptions
permissible pursuant to
section165 NRCD 323, and
consequently, the foundation of
the Plaintiffs’ case must
collapse and the action
dismissed.
d.
Under the international
law doctrine of sovereign
equality of states, one
sovereign cannot sit in judgment
over the acts of another
sovereign. The Defendant cited
the dictum of Lord
Browne-Wilkinson in the case of
Ex Parte Pinochet (No.3) [2000]
1 AC 147 at 201:
“It is a basic principle
of international law that one
sovereign state (the forum
state) does not adjudicate on
the conduct of a foreign state.
The foreign state is entitled to
procedural immunity from the
processes of the forum state.
This immunity extends to both
criminal and civil liability”
The Defendant argued that
‘…lurking under the subterranean
current of the action is an
evaluation of the conduct of the
officials of the United States
Government who did the
assessment contained in Exhibits
GB1 and GB2.’
The Defendant’s Statement
of Case canvassed a plethora of
other issues, some of which
appear to be irrelevant to the
resolution of the core issues in
this matter. Unfortunately, the
parties herein failed to draw up
a Memorandum of Agreed Issues
although there is no evidence
that there was even a mutual or
disparate attempt to reach such
agreement on the issues, before
filing their separate memoranda.
Suffice it to say that the
Plaintiffs on December 12th
2016 filed what they have headed
“Plaintiffs’ memorandum of
issues pursuant to Order of
Court Dated 28th July
2016”,(although there is no such
order of the Court on record)
wherein they set out the
following issues: -
1. “Whether or not the
Agreement between the government
of Ghana and the United States
of America transferring Mahmud
Umar Muhammed Bin Atef and
Khalid Muhammad Salih Al-Dhuby
required parliamentary approval
in accordance with Article 75 of
the 1992 Constitution of the
Republic?
2. Whether or not the President of the Republic of Ghana’s
failure and or refusal to obtain
the requisite approval from
Parliament in respect of the
Agreement in issue, prior to the
transfer of Mahmud Umar Muhammed
Bin Atef and Khalid Muhammad
Salih Al-Dhuby to the Republic
of Ghana is unconstitutional?
3. Whether or not the reception of Mahmud Umar Muhammed Bin
Atef and Khalid Muhammad Salih
Al-Dhuby and their continuous
stay in Ghana is lawful.
4. Whether or not upon a
true and proper interpretation
of Article 58(2) … the President
… is under an obligation to
maintain and execute the Anti
Terrorism Act of 2008… and the
Immigration Act of 2000, both
being laws of Ghana ….?
5. Whether or not the
President …breached Article
58(2) …by agreeing with the
government of the (USA) to have
Mahmud Umar Muhammed Bin Atef
and Khalid Muhammad Salih Al-Dhuby,
suspected terrorists,
transferred to the Republic of
Ghana?”
On the other hand, the
Memorandum of Issues filed by
the Defendants on the 5th
of January 2017 raised the
following issues: -
1.
Whether the note
verbale(sic) established between
the Government of Ghana and the
Government of the United States
of America in settling Umar
Muhammed Bin Atef and Khalid
Muhammed Salih Al-Dhuby in Ghana
was an agreement that was caught
by Article 75 of the
Constitution, 1992 and therefore
requiring Parliamentary
approval.
2. Whether the President of
the Republic of Ghana, in
allowing the settlement in Ghana
of Umar Muhammad Bin Atef and
Khalid Muhammad Salih Al-Dhuby
breached the provisions of the
Anti-Terrorism Act, 2008 (Act
762) and the Immigration Act,
2000 (Act 573).
3.
Whether the documents,
Exhibits GB1 and GB2 upon which
the Plaintiffs rely on for their
entire case are authentic and
meet the standard set in section
161 of the Evidence Act, 1973 (NRCD
323) to ground a cause of
action.
4.
Whether these documents as
aforesaid, are in the category
of hearsay evidence, and
therefore in breach of section
118 of the Evidence Decree 1975
(NRCD 323)
5.
Whether this Court would
not go contrary to the principle
of sovereign equality of states,
if it decides on the case which
bears on the conduct of
officials of a foreign state,
i.e. United States of America.
We need to note that after
the Defendants filed their
Statement of Case, the
Plaintiffs, on 16th
May 2016, filed a motion on
notice for an order directing
the Defendants to produce a copy
of the agreement between Ghana
and the USA for the transfer of
the said two persons to, and
their resettlement in, Ghana.
The Defendants vehemently
opposed the application on
grounds the salient points of
which were to the effect that:-
a.
The Plaintiffs must first
demonstrate the existence of an
agreement of the kind
contemplated by Article 75 which
governs the execution of
treaties agreements and
conventions and does not cover
every ‘agreement’ such as “‘Note
Verbales’ without (sic) another
state or non state actor”.
b.
The agreement that
resulted in the arrival of the
said two persons in Ghana are
notes verbales, which are
“purely administrative and
confidential in nature and are
not to be approved by Parliament
and are therefore not caught
under Article 75….”
c.
Because the said notes
verbales are confidential, their
disclosure will violate Section
1 of the State Secrets Act, 1962
(Act 101)
d.
The agreement is a
privileged matter pursuant to
NRCD 323 and their disclosure
would be prejudicial to the
interests of the state”
e.
The Plaintiffs bears the
burden of to prove that the
notes verbales fall under
article 75 and they must win
their case on the strength of
their own documents and not that
of the defendants.
On 12th July
2016, the Court pursuant to
Article 135, held in-camera
proceedings and the Deputy
Attorney General submitted the
documents. The court, having
examined the same, on 28th
July 2016 concluded that the
State Secrets Act did not apply
to the documents and ruled that
the Plaintiffs’ motion be
granted and that the documents
be admitted into evidence as
Exhibit A, with the admonition
that the same was produced to be
used by counsel for Plaintiff in
furtherance of this litigation
and for no other purpose. I have
mentioned this aspect of the
matter because it is evident
that the Plaintiffs subsequently
relied, not only on the
arguments raised in the
affidavit in opposition to the
motion to produce, but also on a
portion of Exhibit A to bolster
their additional arguments in
support of their case.
We also must note that on
January 10, 2017, the Court
struck out issues 3 and 4 as set
out in the Defendants’
Memorandum of Issues. At the
same sitting, the Court, on an
oral application (no objection
from the Defendant) granted
leave to the Plaintiffs to file
further arguments of law on
Issue 1 of the Memorandum of
Issues filed by the Defendants.
The further arguments, filed on
January 31st 2017,
may be summarized as follows:-
a.
It is the content or
substance of an agreement that
matters not the nomenclature the
government may choose to give an
agreement. Article 75 is not
limited to treaties and exhibit
A is an agreement between two
states (Ghana and the USA) and
is described as such therein,
and therefore whatever other
label the Defendants put on it
cannot change its substance.
b.
Under the provisions of
Article 1 of the Vienna
Convention on the Law of
Treaties, 1969, a treaty is an
international agreement, in
written form and governed by
international law, concluded
between states, whether or not
embodied in a single or multiple
instruments, however designated.
Consequently, Exhibit A, which
sets out Ghana’s obligations in
clear terms has all the features
of a treaty and is within the
contemplation of Article 75.
c.
In any event Article 75
also deals with agreements and
conventions executed as part of
Ghana’s international relations.
By an order
dated 10th May 2017,
the Court directed the parties
to file legal submissions on the
relevance of Articles 83 and 84
to Article 75, on Treaties, and
the applicability of estoppel in
international law upon an
executed treaty. As at the
expiration of the time limit
fixed by the Court, i.e., 24th
May 2017, the Defendant had
complied with the Court’s order.
The Court notes that the
Plaintiffs eventually filed
their submissions on 16th
June 2017, which was grossly out
of time, without leave of the
Court. However, in view of the
fact that this is a
constitutional matter and,
therefore its outcome is a
matter of public interest, the
Court has, nevertheless, taken
into account salient parts of
the arguments canvassed by the
Plaintiffs in their written
submissions, which are, in sum,
as follows:
a.
As a dualist
state, Ghana’s consent to be
bound by an international
agreement is only deemed to have
been properly secured after the
same has been approved or
ratified by Parliament.
b.
The combined
effect of Articles 11 and 14 of
the Vienna Convention is that
where a treaty is subject to
ratification, the formal
exchange or deposit of the
instrument of ratification is
necessary to bring it into
effect. Thus, in the case of
Ghana, where a Treaty, Agreement
or Convention is subject to
ratification, unless there has
been a formal exchange or
deposit of the instrument of
ratification, same cannot be
said to have come into effect.
In other words, the signature of
the President does not, in and
of itself, express the consent
of Ghana to be bound nor does it
create an obligation to ratify
the agreement.
c.
Approval by
Parliament of an international
agreement does not only have
domestic constitutional effect
but it also establishes the
country’s willingness to be
bound to an obligation at the
international level. In support
of this submission, the
Plaintiffs cited the South
African case of Glenister v
President of the Republic of
South Africa [2001] ZACC 6, 2011
(3) SA 347 (CC) for persuasive
effect.
d.
There is no
agreement between the Republic
of Ghana and the United States
of America since the Republic of
Ghana has not yet expressed its
consent to be bound by such an
agreement. According to the
Plaintiff, it, therefore, stands
to reason that the issue as to
whether or not same can be
terminated does not arise at
all.
e.
On the issue
of the role of the National
Security Council, Plaintiffs
position was that it was never
the intention of the framers of
the 1992 Constitution that the
National Security Council might
in any instance derogate from
the power of Parliament under
Article 75 (2) of the 1992
Constitution. Hence, approval of
all Agreements is the sole
prerogative of Parliament.
f.
The Plaintiffs
finally submitted that, in the
circumstances, the Executive be
ordered by the Court to validate
the agreement herein by
submitting the same to
Parliament for ratification.
The salient points of the
Defendant’s submissions are as
follows:
a.
Article 84 states the
functions of the National
Security Council which include
inter alia considering and
taking appropriate measures to
safeguard the internal and
external security of Ghana.
b.
The President by Article
83 does not act by himself.
Thus, the entire National
Security Council established by
the Constitution and assigned
the functions in Article 84 to
ensure the security of Ghana has
not suggested by any means
whatsoever that the security of
the Country has been endangered
by this action.
c.
The Plaintiff is
unnecessarily worried, and has
not established any reason why
this Court or the people of
Ghana must be worried about the
security of the country. The
Plaintiff has also not
established that the President
did not consider the
relationship between the two
provisions in agreeing with the
Government of the United States
of America to admit the two
former detainees into Ghana.
d.
On the question of
estoppel in International law
upon an executed treaty, Article
42 of the Vienna Convention on
the Law of Treaties, 1969
prescribes a certain
presumption, on the basis of the
doctrine of pacta sunt servanda,
as to the validity and
continuance in force of a
treaty. Thus unless a treaty is
invalid, the general principle
of international law is that it
must be performed in good faith
by the parties to it and a party
is estopped from resiling from
it.
e.
Based on Article 46 of the
Vienna Convention on the Law of
Treaties, a State may not invoke
the fact that its consent to be
bound by a treaty has been
expressed in violation of a
provision of its internal law
regarding competence to conclude
treaties as invalidating its
consent unless that violation
was manifest and concerned a
rule of its internal law of
fundamental importance. The said
violation is manifest if it
would be objectively evident to
any State conducting itself in
the matter in accordance with
normal practice and good faith.
The Defendant cited in support
of her submission, the judgment
of the International Court of
Justice (ICJ), dated October 10,
2002, in the matter concerning
the Land and Maritime Boundary
between Cameroon and Nigeria,
where the Court, based on
Article 46, paragraph 1, of the
Vienna Convention held that the
Marouna Declaration, as well as
the Yaounde II Declaration, have
to be considered as binding and
as establishing a legal
obligation on Nigeria, for the
reason that the provisions of
Nigerian law limiting the
capacity of the Head of State of
Nigeria to conclude treaties was
not sufficiently manifest within
the meaning of Article 46 of the
Vienna Convention.
f.
Based on the foregoing
legal arguments, Defendant
submitted that the agreement
between the Government of Ghana
and the Government of the United
States has to be considered as
binding and establishing a legal
obligation on Ghana, and Ghana
is estopped from resiling from
it.
ANALYSIS
The clear and incontrovertible
facts in this matter are:
a. That there was an
agreement, evidenced in some
form of writing, between the
Government of the Republic of
Ghana and Government of the
United States of America to
resettle in Ghana for two years
or more, two persons formerly
detained by the USA at its
facility at Guantanamo Bay,
namely, Mahmud Umar Muhammed Bin
Atef and Khalid Muhammad Salih
Al-Dhuby.
b. That pursuant to the
said agreement, the said persons
have actually been brought into,
and at all material times reside
in, Ghana.
Thus, the core issue of
import to be determined in this
matter is whether or not Exhibit
A, the document or instrument
made between Ghana and the USA
is in the category of
'agreement' contemplated by
Article 75, which, therefore,
ought to have been placed before
Parliament for ratification. All
the other issues are ancillary
to this one.
Article 75 reads as follows:
“(1) The President
may execute or cause to be
executed treaties, agreements or
conventions in the name of
Ghana.
(2) A treaty, agreement or
convention executed by or under
the authority of the President
shall be subject to ratification
by-
(a) Act of Parliament; or
(b) a resolution of Parliament
supported by the votes of more
than one-half of all the members
of Parliament.”
To ascertain the meaning
of this article, and in
particular the word ‘agreement’
as used in contradistinction to
‘treaty’ and ‘convention’ we
must bear in mind the provisions
of Article 73 of the
Constitution which states, that:
“73
The
Government of Ghana shall
conduct its international
affairs in consonance with the
accepted principles of public
international law and diplomacy
in a manner consistent with the
national interest of
Ghana.”(emphasis mine)
This provision echoes the
Directive Principle of State
Policy stated in Article 40(a)
of the Constitution that: -
“In its
dealings with other nations, the
Government shall –
(a)
Promote and protect the
interest of Ghana….”
One, also, must not lose sight of
the words of Sowah JSC (as he then was) in Tuffuor v Attorney-General
[1980] GLR 637, which have over
the years served as highly
valued guiding principles in the
interpretation of the
Constitution of Ghana: -
“The Constitution has its letter
of the law. Equally, the
Constitution has its spirit. It
is the fountain-head for the
authority which each of the
three arms of government
possesses and exercises. It is a
source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their authority is
derived from the Constitution.
Their sustenance is derived from
the Constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana…. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
We must, furthermore, bear
in mind Section 10(4) of the
Interpretation Act, 2009 (Act
792) which provides that:
“(4)
Without prejudice to any other
provision of this section, a
Court shall construe or
interpret a provision of the
Constitution or any other law in
a manner
(a) that
promotes the rule of law and the
values of good governance,
(b) that
advances human rights and
fundamental freedoms,
(c) that
permits the creative development
of the provisions of the
Constitution and the laws of
Ghana, and
(d) that
avoids technicalities and
recourse to niceties of form and
language which defeat the
purpose and spirit of the
Constitution and of the laws of
Ghana.
The Defendant seeks to persuade
us that, in interpreting article
75, we must make a distinction
between an agreement intended to
create a legal liability and one
which, although made between two
state parties, is not intended
to create legally binding
obligations and rights. We,
however, received very scant
help regarding the basis for
such a distinction save that,
according to the Defendant, such
distinction, is based on 'State
Practice'. Unfortunately, the
references made in support of
such distinction relate not to
Ghana’s Constitution or State
Practices developed therefrom,
but rather to practices in the
United States of America, where
there appears to be a
long-standing practice to
distinguish between ‘executive
agreements’, which are signed by
their President without the
approval of Congress, and
treaties that require such
approval. The Defendant also
made reference to the Republic
of South Africa, where such
distinction is specifically
provided for in their
Constitution.
Why we should interpret the
terms of our Constitution in
line with the provisions of
another State’s constitution,
and why we must follow another
State’s practices, the Defendant
failed to give us any cogent
reasons or make any compelling
showing. With specific reference
to Ghana, the Defendant could
only make mention of ‘technical
cooperation agreements,
agreements on joint military
training sessions and memoranda
of understanding in support of
certain international causes’
without exhibiting any textual
examples of what she termed
Executive Agreements. In any
event, it is clear that the
submissions of the Defendant
dealt with instruments the
substance of which are in an
entirely different category from
the one in issue herein.
The language of Article 75 is
perfectly clear. The Article
forms part of the set of
provisions governing the role of
the Executive arm of government
in Ghana’s international
relations. The scope of the
Article deals with treaties in
general (c.f. the side notes)
and the body of the text makes
reference to ‘treaties,
agreements and conventions’. It
is also clear that the
instruments referred to relate
to Ghana’s international
relations with other countries
or groups of countries and the
Article requires that such
instruments must be ratified by
Parliament. The Constitution
makes no mention of any formal
distinctions that are dependent
on the formality with which such
an instrument is formatted or
brought into being. From the
aforementioned principles of
constitutional interpretation in
Ghana, there is no doubt that
where, by various forms of
documentation, the Government of
Ghana binds the Republic of
Ghana to certain obligations in
relation to another country or
group of countries, an
international agreement comes
into existence. Taking into
account the substance of Exhibit
A, we are in no doubt that,
despite the form in which it has
been drafted and the text
couched, it is intended to
create an obligation on the part
of Ghana to the USA whereby,
inter alia, Ghana binds herself
to ‘receive’ and ‘resettle’ the
said two persons, and assure
that, ‘for at least two years,
or longer if warranted by
circumstances,’ these persons
are kept under such conditions
(i.e. monitored and surveilled)
as would accord with ‘the
security assurances in this
agreement to be implemented’.
Furthermore, it also appears
that, under the agreement, Ghana
is obliged to integrate the two
persons into Ghanaian society.
This is a unique obligation,
since it compels the virtual
migration of the two persons
into Ghana. If the arguments of
the Defendant were to be taken
seriously, (i.e., that the
transaction being by way of a
note verbale (‘executive
agreement, memorandum of
understanding, diplomatic note’,
or what have you) is merely an
administrative one), then the
question arises as to the exact
status of the said persons now
that they are in Ghana. Are they
migrants? (should the
application of our sovereign
laws on immigration be compelled
by another state?) Are they
refugees? (their situation does
not fall into the definition of
‘refugee’ under Article 1 of the
UN 1951 Convention on the Status
of Refugees (as amended by the
1967 Protocol thereto; or
Article 1 of the 1969 AU
Convention Governing Specific
Aspects of Refugee Problems in
Africa). There is, therefore, no
doubt that the arrangement,
unique as it is, cannot be made
without parliamentary
ratification.
With regard to the
Defendant’s submission that, in
the context of Article 75,
‘agreement’ must necessarily
take its meaning from the
‘company it keeps’ i.e. treaty
and convention, we note the
terms of Article 1 of the Vienna
Convention on the Law of
Treaties defining a Treaty as:
"An international
agreement concluded between
states in written form and
governed by international law,
whether embodied in a single
instrument or in two or more
related instruments and whatever
its particular designation'
A convention is an
agreement amongst nations, i.e.
a multilateral treaty, such as
the Vienna Convention. An
agreement is also for the
purposes of the Article 1, a
treaty by the definition of
treaty (supra). In other words,
as has been noted above, our
Constitution bears no
distinction between executive
and non-executive agreements.
To buttress
the argument that a state is
estopped from resiling on an
international agreement, the
Defendant quoted a portion of
the decision of the
International Court of Justice
dated October 10, 2002 in the
matter concerning the Land and
Maritime Boundary between
Cameroon and Nigeria, to wit;
“…the Court notes that there is no general legal obligation for
States to keep themselves
informed of the legislative and
constitutional developments in
other States which are or may
become important for the
international relations of these
States.”
Certainly,
this position is untenable in
the context of the modern
dispensation of international
relations, which is
characterised by, and operates
within an environment of,
democracy and written
constitutions. It is the duty of
any party to an agreement to
conduct basic due diligence on
the capacity of the other
contracting party to ensure the
soundness of the agreement vis a
vis prevailing constitutionality
and constitutionalism. A State,
with all the resources at its
disposal, cannot absolve itself
from its failure to perform this
basic inquiry into the
legislative and constitutional
requirements of other States
which are or may become relevant
or important for grounding
international relations of
mutual States.
Additionally,
the above-quoted portion of the
decision of the ICJ has a
tendency to become inimical to
the rationale underpinning the
establishment of Foreign
Missions, Embassies, High
Commissions etc. In this era of
technology, no State should play
the proverbial ostrich and
pretend not to know or be
interested in the affairs of
other States with which it
initiates dealings in the
international environment, and
thereby contract blindly in the
hope the other State-party acts
in good faith and with full
capacity. Such regularity cannot
be presumed any longer,
especially in a democratic
dispensation. A State is,
therefore, duty bound to conduct
the necessary due diligence when
entering into international
agreements with Ghana to ensure
that such agreements are in
consonance with our Constitution
and, therefore, enforceable.
Consequently, we hold
that, upon a true and proper
interpretation of Article 75 of
the 1992 Constitution of Ghana,
the President of the Republic of
Ghana, in agreeing to the
transfer of Mahmud Umar Muhammad
Bin Atef and Khalid Muhammad
Salih Al-Dhuby to the Republic
of Ghana, required the
ratification by an Act of
Parliament, or a resolution of
Parliament supported by the
votes of more than one-half of
all the members of Parliament,
and by virtue of the failure to
obtain such ratification the
agreement is unconstitutional.
S. A. B. AKUFFO
(MS)
(CHIEF JUSTICE)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE
OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S.
GBADEGBE
(JUSTICE OF THE SUPREME COURT)
ATUGUBA, JSC:-
I have had the advantage of
reading the characteristic
brilliant judgment of Sophia
Akuffo C.J. As she has set out
in extenso the salient facts of
this case, I would not repeat
them except when necessary. It
has not been easy for me to
track down the crux of the
nature of the agreement between
Ghana and the United States in
this case. Is it an immigration
matter, a security matter or a
resettlement matter?
What however seems to be clear
to me is that it involves the
reception and handling of two
aliens. An alien is simply a
person who is not a citizen of a
particular country under
consideration. Thus for whatever
reasons these two Yemeni
citizens have been brought down
to Ghana from Guantanamo Bay
camp, they are here as aliens.
That being so, what is the law
in this country with regard to
powers over aliens? The answer
is deeply embedded in
international law. Thus in
Captan v. Minister for Home
Affairs (Minister of Interior)
(1970) 2 G&G 1223 2d at 1228
Akufo-Addo C.J.
delivering the unanimous
judgment of the Court of Appeal
(sitting as the Supreme Court)
said:
“The principle underlying
the matter before us is one that
has long been established in
international law, and it is
that an independent sovereign
state has the power inherent in
sovereignty to decide what
foreign nationals it will admit
into its community, what
conditions it will impose on
such admission, and to expel at
any time any aliens admitted
into residence. If we may quote
a passage from 1 Philimore,
International Law, section 220:
‘It is a received maxim of
international law that the
government of a State may
prohibit the entrance of
strangers into the country, and
may therefore regulate the
conditions under which they
shall be allowed to remain in it
or may require and compel their
departure from it.’”
Continuing he said at
1233:
“The exercise of the power
of the executive and of the
legislature over aliens is
inextricably intertwined with
the conduct of the State
relations with foreign
countries, and the conduct of
foreign relations is peculiarly
within the province of what are
called the political departments
of state i.e. the executive and
the legislature.”
From the trend of his
judgment it is quite clear that
the court meant to say that the
sovereign power of Ghana over
aliens is exercisable by the
Executive though the Legislature
may regulate its exercise
through legislation such as the
Aliens Act, 1963 (Act 160)
together with its regulations.
The Court however stressed that
the source of the power over
aliens was not the Aliens Act
which merely regulated the
exercise of that power but the
principle of international law,
ut supra. See also Principal
Immigration Officer v. O’Hara
(1994) 1 LRC 138, Supreme
Court, Zimbabwe, at 144-145.
The exercise of this sovereign
right over aliens is not a
matter for ratification, it is
complete in itself. Thus in
Edusei v. Attorney-General and
Another (1996-97) SCGLR 1 at 6
Amua-Sekyi JSC stated the facts
of the case, as far as relevant
as follows:
“In or about January 1984,
certain persons, among them the
plaintiff, who were said to be
engaged in espionage activities
on behalf of the Government of
the United States were permitted
to leave Ghana under an
agreement between the
Governments of Ghana and the
United States. In return, the
Government of the United States
permitted one Soussoudis who had
been convicted in the United
States of engaging in espionage
activities on behalf of the
Government of Ghana, to leave
the United States.”
It is pertinent to note that
even in 1984 S 8(2) of the
Provisional National Defence
Council (Establishment)
Proclamation, 1981 (PNDCL 42)
provided that:
“The Council shall execute
or cause to be executed
treaties, agreement or
conventions in the name of
Ghana, so however that such
treaties, agreements or
conventions shall come into
force on ratification by the
Council.”
No issue however arose as to the
compliance with this provision
in the Edusei case. Presumably,
Ghana and the United States
merely exercised their undoubted
sovereign power over aliens
(though one of the persons
involved, the plaintiff, was a
Ghanaian). Again in, Republic v.
High Court (Commercial
Division), Accra; Ex Parte
Attorney-General (NML Capital
LTD & Republic of Argentina
Interested Parties)
(2013-2014) 2 SCGLR 990 a
military vessel of Argentina
came to Ghana under a military
exercise agreement between Ghana
and Argentina but no issue of
parliamentary ratification was
involved. Although Argentina
waived its sovereign rights of
immunity under a judgment
obtained against it in the
American courts, this Court held
that under public international
law it is inconceivable for a
military asset of a foreign
country to be seized in
execution of a judgment. These
two cases are here cited by way
of analogy. All told, it is that
a deep-seated principle of
international law commonly
recognized by the nations of the
world cannot easily be
overridden by the courts. The
settled executive powers of a
sovereign state cannot be
abrogated except by express
statutory provision. It is a
settled principle that it is
expected that a statute will be
construed to be consistent with
the common law rather than
against it.
I need not go further except to
say that if the agreement be
regarded not as a matter
affecting aliens simpliciter but
is in essence a security issue,
then the 1992 Constitution
having specifically confided
that matter for consideration
and decision to the National
Security Council under Articles
83-84 of the 1992 Constitution
of the Republic of Ghana could
not have also contemplated the
applicability of the general
provision of Article 75 to it.
That would produce a conflict.
See Ghana Bar Association v.
Attorney- General (Abban case)
(2003 – 2004)1 SCGLR 250.
To conclude just as a customary
agreement is not turned into a
common law agreement simply
because it has been committed
into writing, an agreement
concerning the reception,
residence and expulsion of
aliens which is an indisputable
power of sovereignty of states
remains as such, even though it
has the features of a treaty,
and is not to be prejudiced or
held to be within the purview of
Article 75 of the Constitution.
Indeed the government is
constitutionally bound under
article 73 to conduct its
affairs in line with such
international principles.
For all these reasons I with
diffidence, cannot go along with
the majority decision of this
case.
W. A. ATUGUBA
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
NANA ADJEI BARFOUR-AWUAH
FOR THE PLAINTIFF
DOROTHY AFRIYIE-AWUAH,
CHIEF STATE ATTORNEY FOR THE
DEFENDANT
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