HOME          

GHANA BAR REPORT 1993 -94 VOL 2

New Patriotic Party v Inspector-General of Police and others

SUPREME COURT

ARCHER CJ, FRANCOIS, AMUA-SEKYI, AIKINS, WIREDU, BAMFORD-ADDO, HAYFRON-BENJAMIN JJSC

30 NOVEMBER 1993

 1993 the police withdrew the permit and prohibited the holding of the rally.

Yet again on 16 February 1993, the plaintiff in conjunction with other political parties embarked on a peaceful demonstration in Accra “to protest against the 1993 budget of the Government of Ghana”. This “peaceful demonstration” was, according to the plaintiff, violently broken up by the police and some of those taking part in the demonstration were arrested and charged before an Accra Circuit Court with demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of the Public Order Decree 1972 (NRCD 68).

The plaintiff complained further that on 17 February 1993, the Kyebi police, in the Eastern Region granted the plaintiff a permit to hold a rally at Kyebi “to commemorate the 28th anniversary of the tragic death of Dr Joseph Boakye Danquah”. On the day when the rally was to be held the police withdrew the permit and prohibited the holding of the rally.

The plaintiff therefore filed a writ in this court wherein it claimed a declaration that:

“(i)Section 7 of the Public Order Decree 1972 (NRCD 68) which gives the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area, section 8 of the said Decree which provides that the holding of all public processions and meetings and the public celebration of any traditional custom shall be subject to the obtention (sic) of prior permission, section 12(c) of the said Decree which gives to a superior police officer the power to stop or disperse such a procession or meeting and section 13 of the said Decree which makes it an offence to hold such procession, meetings and public celebrations without such permission, are inconsistent with and a contravention of the constitution, especially article 21(1)(d) thereof, and are therefore null, void and unenforceable.

(ii) Under the constitution no permit is required of the police or any other authority for the holding of a rally or demonstration or procession or the public celebration of any traditional custom by any person, group or organisation.”

By their statement of case the defendants while not specifically admitting the allegation that the plaintiff and other members of some other political parties embarked on a “peaceful demonstration through the streets of Accra on 16 February 1993,” nevertheless denied that they had violently broken up the demonstration. In the view of the defendants the procession was “an unlawful demonstration”. The defendants however admitted the other two actions alleged in the plaintiff’s statement of case and claimed that the actions complained of were lawful exercise of authority within the intendment of the Public Order Decree 1972 (NRCD 68).

The defendants stated their case thus:

“9. The defendants admit paragraphs 9 and 10 of the statement of the plaintiff’s case.

10. The defendants say further that the allegations contained in paragraphs 9 and 10 of the statement of the plaintiff’s case were the result of a lawful and reasonable exercise of authority vested in the police by the Public Order Decree 1972 (NRCD 68).

11. The defendants also say in further answer to paragraphs 9 and 10 of the statement of the plaintiff’s case that the said paragraphs are irrelevant to the present action.”

There was a clear misunderstanding of the procedural rules of this court as to the filing of the memorandum of issues. The parties separately filed what they termed agreed issues even though the same were not signed by each other’s counsel. However paragraph 6 of the plaintiff’s memorandum of issues were in identical terms with the single issue raised by the defendants in their memorandum of issues. This issue was in my respectful opinion the kernel of the matters in controversy between the parties. It reads:

“Whether or not sections 7, 8, 12(c) and 13 of the Public Order Decree 1972 (NRCD 68) are inconsistent with and a contravention of the 1992 Constitution, particularly article 21(1)(d) thereof and are therefore null, void and unenforceable.”

In other words, (1) whether a ministerial, police or other permit is required for the exercise of any public activity envisaged by sections 7 and 8 of the Public Order Decree 1972 (NRCD 68) and (2) whether the superior police officer or other authorised public officer may stop and disperse citizens taking part in any such public activity as is envisaged by sections 7 and 8 of the Decree and (3) whether citizens may be punished for taking part in any such public activity.

For the purposes of this case the first provisions of the constitution which need to be set out are article 21(1)(d) and section 4(a), (b) and (c):

21(1) All persons shall have the right to…

(d) freedom of assembly including freedom to take part in processions and demonstrations;

(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision —

(a) for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or public order, on the movement or residence within Ghana of any person; or

(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons…”

Before coming to the Public Order Decree 1972 (NRCD 68) itself some account should be given of the history leading up to it. This court cannot be insensible to the fact of the colonial status from which we have evolved into a nation: nor can we be oblivious of the fact that while in the main we have received the laws from our British colonial masters - the common law - these laws were often qualified by Ordinances and regulations designed to remind us of our subject status and to ensure that our colonial masters had the peace and quiet necessary to enable them live among us and rule us.

In his learned treatise, The Constitutional Law of Great Britain and the Commonwealth,  2nd ed, Hood Phillips cites from Professor Dicey’s classic treatise, The Law Of The Constitution, ,9th ed wherein the latter author states the general principle of English law respecting the right of assembling and processing as follows at p 532:

“The right of assembling is nothing more than a result of the view taken by the Courts to individual liberty of person and individual liberty of speech. There is no special law allowing A, B and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that he does not commit a trespass, and to say what he likes to B so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C, D, E and F and so on ad infinitum lead to the consequence that A, B, C and D and a thousand or ten thousand other persons, may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner.”

Hood Phillips continues with his own observation that:

“There is a general right to promote or take part in a public meeting on private premises, and to promote or take part in a public procession, subject in either case to the infringement of particular legal rules.”

Within our municipality, and in colonial times, our courts have not been bound in the construction of the Criminal Code by “any judicial decision or opinion on the construction of any other statute, or of the common law as to the definition of any offence, or of any element of any offence”.

The distinction between common law offences and statutory offences therefore does not exist in our criminal jurisprudence.

The first Criminal Code Ordinance (No 12 of 1892) was passed on 31 October 1892 and included such common law offences as sedition, unlawful assembly, rout, and riot. By various later arrangements in the order in which it stood in the statute book the Criminal Code became Ordinance No 50 of 1952 and was until 1960 known as “Cap 9”. On a close examination of Cap 9 it will be found that the nearest mention of a “permit” is contained in section 142(10) where it is stated that whoever:

“In any town, without a licence in writing from the Governor or a District Commissioner, beats or plays any drum, gong-gong tom-tom, or other similar instrument of music between eight o’clock at night and six in the morning… shall be liable to a fine of forty shillings.” (Emphasis mine.)

The concept of a permit, however, first appears in 1926 in pursuance of authority granted to the Governor by the Police Force Ordinance (No 10 of 1922). By virtue of the powers granted the Governor under the Police Force Ordinance, the Public Meetings And Processions Regulations (No 10 of 1926) were made on 6 April 1926. Section 2 of the regulations state:

“Any person who desires to hold or form any meeting or procession in a public way shall first apply to a public officer not below the rank of Assistant Commissioner of Police or, if there be no such officer, then to a District Commissioner for permission to do so; and, if such police officer or District Commissioner is satisfied that the meeting or procession is not likely to cause a breach of the peace, he may issue a permit authorising the meeting or procession, and may in such permit prescribe any special conditions, limitations, or restrictions to be observed with respect thereto.” (Emphasis mine.)

Such was the state of the law on public meetings and processions until 1961 when the Public Order Act (Act 58) was passed and received the Presidential Assent on 29 May 1961. Section 6 thereof was in identical terms with section 2 of the regulations set out above. There were, however, three important differences between the two sections. The long title of the 1961 legislation was:

 “An Act to replace, with minor modifications, enactments relating to the control of the possession or carrying of arms, the holding of public meetings and processions and the imposition of curfews.”

First, whereas the regulations mentioned “public way” the Act mentioned “public place”. The interpretation section of the Act did not provide any definition of a “public place”. The Police Force Ordinance however refers to the definitions of “public place” and “public way” as bearing the same meaning as are contained in the Criminal Code. Under that Code the expression “public place” is all embracing and includes a ‘public way’. But a “public way” is defined as including:

“any highway, market place, lorry park, square, street, bridge, or other way which is lawfully used by the public.”

Yet again the application of the regulations was limited to the towns mentioned in the schedule as amended by the Public Meetings And Processions (No 2) Regulations 1954 (LN 415) made under the Police Force Ordinance. I do not think that it was for nothing that the expression “public way” was used in the regulations. The regulations were only applicable to the towns named in the schedule. As I understand it, the regulation was made to control traffic, the assembling and procession of rival parades at the same place and time and to give the authorities advance notice to afford them proper opportunity for effective policing.

Second, the Public Order Act 1961 effectively revoked the Public Meetings and Processions Regulations 1954 (LN 415). Consequently the Act applied to the whole country.

Third, the Public Order Act came into force after the promulgation of the 1960 Constitution. The relevant provision in that constitution, which appeared to assure the citizen of “the right to move and assemble without hindrance” was contained in article 13(1). If indeed there was such a “right” then section 6 of the Public Order Act 1961 was clearly inconsistent with that constitution and was therefore null, void and unenforceable.

But in the case of Re Akoto [1961] GLR 523 the Supreme Court held otherwise. Re Akoto, supra, is often considered as a case on the validity of the Preventive Detention Act (No 17 of 1958). What many fail to appreciate is that article 13(1) of the 1960 Constitution contained many provisions which, in later constitutions, have been expanded into substantive articles.

In the Akoto case, supra, learned counsel for the appellants submitted, inter alia at p 533:

“That the Preventive Detention Act, 1958, which, was not passed upon a declaration of emergency or as a restriction necessary for preserving public order, morality or health, but which nevertheless placed a penal enactment in the hands of the President to discriminate against Ghanaians, namely to arrest and detain any Ghanaian and to imprison him for at least five years and thus deprive him of his freedom of speech, or of the right to move and assemble without hindrance, or of the right of access to the courts of law, constitutes a direct violation of the Constitution of the Republic of Ghana and is wholly invalid and void.”

The clear answer given by their Lordships is stated in pages 533-534 of the report and reads:

“All the grounds relied upon appear to be based upon Article 13 of the Constitution. It is contended that the Preventive Detention Act is invalid because it is repugnant to the constitution of the Republic of Ghana, 1960, as article 13(1) requires the President upon assumption of office to declare his adherence to certain fundamental principles which are:—

‘That the powers of Government spring from the will of the people and should be exercised in accordance therewith.

That freedom and justice should be honoured and maintained.

That the union of Africa should be striven for by every lawful means and when attained, should be faithfully preserved.

That the Independence of Ghana should not be surrendered or diminished on any grounds other than the furtherance of African unity.

That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief.

That Chieftaincy in Ghana should be guaranteed and preserved.

That every citizen of Ghana should receive his fair share of the produce yielded by the development of the country.

That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion, of speech, of the right to move and assemble without hindrance or of the right of access to courts of law.’

This contention, however, is based on a misconception of the intent, purpose and effect of Article 13(1) the provisions of which are, in our view, similar to the Coronation Oath taken by the Queen of England during the Coronation Service. In the one case the President is required to make a solemn declaration, in the other the Queen is required to take a solemn oath. Neither the oath or declaration, can be said to have a statutory effect of an enactment of parliament. The suggestion that the declarations made by the President on assumption of office constitute a ‘Bill of Rights’ in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.”

I have not been able to resist setting down the whole of article 13(1) as stated by their Lordships in the Akoto case, supra, the better to demonstrate the extent to which that judgment undermined the very fabric of that constitution and literally pushed aside certain principles and fundamental human and civil rights which have become the bulwark of the 1992 Constitution. The Public Order Act 1961 thus lost none of its operational efficacy and the consent of the minister or “permit” from the police remained a necessary prerequisite for the holding or formation of “any meeting or procession in a public place”.

The Public Order (Amendment) Act 1963 (Act 165) restated section 16 of the 1961 Act and extended the permit requirements to the celebration of traditional customs and the display of Asafo company flags.

The Public Order Decree 1972 (NRCD 68), parts of which form the basis of the plaintiff’s complaint in the present case, is in essence a consolidation of the previous public order legislation and the Public Meetings and Processions Regulations,  sections 7 and 8 read:

“7. (1) The Commissioner may by executive instrument prohibit for a specified time (not being more than one week) in a specified place or area the holding of a public meeting or procession and any meeting or procession held in contravention of any such instrument shall be unlawful.

(2) It shall not be lawful to hold a public meeting or public procession within five hundred yards of-

 (a) any meeting place of the National Redemption Council, the Executive Council or any Committee thereof,

(b) any official residence of a member of the National Redemption Council or the Executive Council,

(c) any office or official residence of a Regional Commissioner, or

(d) any port or airport,

except with the written consent of the Commissioner or any person authorised by him.

8. (1) any person who intends-

(a) to hold or form any meeting or procession; or

(b) to celebrate any traditional custom

 in any public place shall first apply to a  superior police officer for permission to do so.

(2) the superior police officer shall consider the application fairly and impartially, and shall issue a permit authorising the meeting, procession or celebration unless he is satisfied upon reasonable grounds that it is likely to cause a breach of the peace or to be pre-judicial to national security.

 (3) the superior police officer may prescribe in the permit such conditions and restrictions as are reasonably required-

(a) in the interests of defence, public order, public safety, public morality, public health or the running of essential services; or

(b) to protect the right and freedoms of other persons.

(4) where an officer refuses to grant a permit under this section he shall inform the applicant in writing of the reasons for his refusal.”

It is evident that the public order laws in one form or the other have existed during the period of all four Republican constitutions which we have had in this country. Yet it seems it is only now that a challenge is raised as to their constitutionality. The answers are clear. As I have already stated, Re Akoto, supra, denuded article 13(1) of any constitutional force.

Next the relevant articles in the 1969 and 1979 constitutions did no confer the right to process. The right of assembly and association was “for the protection of his (the citizen’s) interest”.

Article 23(1) of the 1969 Constitution and article 29(1) of the 1979 Constitution are in exactly similar language and read:

“29(1) No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations, for the protection of his interests.”

It is clear from the above article that the 1969 and 1979 constitutions only granted limited freedoms. Further, there was no constitutional right to form or hold a procession or demonstration in a public place. As to the right to hold or form a procession I do not think article 24(1) of the 1969 Constitution or article 30(1) of the 1979 Constitution on the freedom of movement is the same as the freedom to hold and form processions. Indeed I am fortified in my view by the manner in which these freedoms are treated in the 1992 Constitution. The freedom of association as envisaged in the former constitutions is clearly stated in article 21(1)(e) while the corresponding freedom of movement is stated in article 21(1)(g) of the 1992 Constitution. The matter in issue between the parties before us concerns article 21(1)(d) which has been set out above and whether the allegedly offending sections of Public Order Decree 1972 (NRCD 68) are inconsistent with it and therefore null, void and unenforceable.

In argument before us the Honourable Deputy Attorney-General, Mr Martin Amidu, referred to the case of Tuffour v Attorney General [1980] GLR 637 and the dictum of Sowah JSC at pages 661 - 662 and submitted that this court must be guided by the intentions of the framers of the constitution. I agree with him.

Before the framers of the 1992 Constitution embarked upon the exercise of writing that constitution, the desires and views of the citizens on their constitutional expectations had been collated by the National Commission on Democracy. The Commission’s Report formed the basis of the recommendations of the Committee of Experts. The Experts adopted the Directive Principles Of State Policy as first enunciated in the 1979 Constitution. The experts acknowledged that they had used that chapter in the 1979 Constitution “as a basis for its deliberation on this matter.”

In paragraph 94 at page 49 of the Report of the Committee of Experts, it is stated:

“94 The NCD report speaks of the need to include in the new Constitution “core principles around which national political, social and economic life will revolve”. This is precisely what the Directive Principles of State Policy seek to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the Principles attempt to set the stage for the enunciation of political, civil, economic and social rights of our people. They may thus be regarded as spelling out in broad strokes the spirit or conscience of the constitution.”

The Experts recognised that the Directive Principles were not justiciable. Nevertheless they gave convincing reasons for including them in the constitution and concluded that their usefulness lies in the fact that “they provide goals for legislative programmes and a guide for judicial interpretation”. For the first time there was a recommendation for the inclusion of political objectives in the constitution and at page 51 of its report, the Committee of Experts suggested that:

“The State should cultivate among all Ghanaians respect for fundamental human rights and for the dignity of the human person.”

The framers of the constitution having adopted the Directive Principles stated in article 34(1) of the constitution stated the scope for their implementation thus:

“34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

The political objectives were stated in article 35 of the constitution. In the main, article 35 sufficiently reflects the recommendations of the Committee of Experts. This court, and indeed all courts, is therefore entitled to take into consideration political matters in “applying or interpreting this constitution”. I do not however think it appropriate to dilate on political matters in the consideration of this opinion. Suffice it to say that this court cannot ignore the fact that at the close of this second millennium of the modern era the attainment and enjoyment of fundamental human rights have become prime instruments of international relations.

In regarding this opinion therefore we must take into serious consideration the struggles, exploits and demands of oppressed and struggling peoples in Africa, America and elsewhere led by such men as Nelson Mandela and Dr Martin Luther King Jnr, in their fight for fundamental human and civil rights.

Judging by the frequency with which the African National Congress and other political parties hold rallies and demonstrations in South Africa, the police would be very hard put to, if they were to issue a permit for any such rally or demonstration to be held. I do not believe a permit is required in that country to enable any person or group of persons to assemble, process or demonstrate. We cannot wish for these others, anything more than we wish for ourselves. Indeed the very constitutional provision, article 21(1)(d), which has provoked this litigation is firmly rooted in chapter 5 of our 1992 Constitution which deals with fundamental human rights and freedoms.

Within our municipality I do not think that I can contemplate a better statement of our national attitude on fundamental human rights than the editorial comment in the state-owned national weekly, The Mirror of Saturday, 10 July 1993, parts of which read:

“The problem of human rights violations has become a disturbing source of concern to all peace-loving people of the world. For a long time now, governments of various countries have been accused of violating the rights of their peoples by way of trampling upon their fundamental human rights with impunity. What is more, these governments do not take cognisance of the fact that every human being was born into the world to enjoy maximum freedom - freedom to associate, of movement, and indeed freedom to express one’s views freely without looking over one’s shoulders to see whether there is the big stick in waiting. Looking seriously at the human rights record of some governments, it is sad to conclude that the freedoms of their peoples are toyed with, if that is the only means to keep them in perpetual power… A lot has been said about the violation of human rights but mere talks on human rights violation and denial of fundamental freedoms will be totally meaningless unless concrete measures are put in place to enforce the laws and prevent occurrence. The absence of civil and political rights certainly creates a sordid situation which enables authoritarian and autocratic regimes to blossom and thus take the opposite direction as far as human rights are concerned. It in this regard that [The Mirror] wishes to urge all governments to realise that the people they govern should be made to enjoy all the God-given freedoms they deserve. The constitution of the Fourth Republic provides for the strict adherence of human rights and it is anticipated that every effort must be made to uphold the dignity of man in the interest of peace and stability…”

The spirit or conscience of the constitution, as epitomised by the above cited comment, must therefore be our guide in considering this opinion.

Next it was submitted by the Honourable Deputy Attorney-General that the constitution has reserved to the sovereign authority the right to provide for public order. He referred to article 21(4)(c) as being the constitutional force behind the submission. Article 21(4)(c) has been stated supra in extenso and therefore there is no need to repeat it. The submission however cannot be right. A brief comparison between article 21(4)(a) and article 21(4)(c) shows that the expression “public order” does not occur in the later sub-section (4)(c). By itself the expression “public safety” is used in contradistiction to the expression “public order”. True, in accordance with the canons of interpretation sometimes “or” can be interpreted to mean “and”. In Green v Premier Glynrhonwy Slate Co Limited (1928) 1 KB 561 at page 568 is stated per Scrutton LJ:

“You do sometimes read “or” as “and” in a statute… But you do not do it unless you are obliged, because “or” does not generally mean “and” and “and” does not generally mean “or”.

In my respectful opinion, I am not obliged to read in the context of article 21 the expression “or” in sub-section 4(a) as “and”. First, in sub-section (4)(a) the imposition of the restrictions, as they apply to article 21(d), is by the court while in sub-section 4(c), whoever is imposing the restrictions is required to exercise his discretion that is to say, “restrictions are reasonably required”.

Second, sub-section 4(a) provides for the imposition of prior restraint by the court on the exercise of the fundamental freedoms while sub-section 4(c) is akin to the emergency powers which, short of a presidential declaration of a state of emergency, may be exercised under the authority of any law made to cover the situations and the persons mentioned in that sub-section; see article 31(9) of the 1992 Constitution.

Clearly article 21(4)(c) cannot be invoked in aid of a valid exercise of authority under the Public Order Decree 1972.

Again it was submitted on behalf of the defendants that sections 7, 8, 12(c) and 13 of the Public Order Decree (NRCD 68) constitute reasonable restrictions as are required by article 21 of the constitution and that the said sections are in accord with the spirit of the constitution.

It will be useful to deal first with the provisions of section 12(a) of NRCD 68 and then with the provisions of section 13 thereof as it is clear that if the provisions of sections 7 and 8 are unconstitutional then no meeting or procession can be held or formed in contravention of section 12(a). Section 12(a) confers on the police officer or authorised public officer unfettered powers, and without ascribing any reasons therefor, to “stop and cause to be dispersed any meetings or processions in any public place”. Such absolute power conferred upon a police or administrative officer or a Minister of State to abridge the fundamental human rights of the citizen is unconstitutional. When citizens meet or process in a public place in pursuance of their constitutional right to form or hold meetings and processions they are only subject to the criminal law which for the present is contained in our Criminal Code 1960 (Act 29). In Republic v Kambey  [1991] 1 GLR 235 the accused persons were convicted of murder and sentenced to death. They appealed against their convictions to the Court of Appeal which allowed their appeal. The State then appealed against the judgment of the Court of Appeal to this court. In this court one of the issues raised at page 243 of the report was:

“…whether by their conduct the Duusi Chief and his subjects had assembled with an intent to commit an offence, and if not, whether being assembled to collect “dawadawa” fruits which may be taken as a common purpose they so conducted themselves as to cause persons in the neighbourhood reasonably to fear that the persons so assembled would commit a breach of peace.”

My learned and respected brother Aikins JSC, writing for the court and considering the issue of the quality of such an assembly referred to sections 201(1), 202 and 202A(1) of Act 29 (Criminal Code) and said:

“Such an assembly to be unlawful must be for purposes forbidden by law or with intent to carry out their common purpose in such a manner as to endanger public peace. Even if having assembled there for a lawful purpose, and with no intention of carrying it out unlawfully, they had knowledge that their assembly would-be opposed, and had good reason to suppose that a breach of the peace would be committed by the first prosecution witness and others who opposed it, they would not be guilty of an unlawful assembly.”

Aikins JSC cited the English case of Beaty v Gillbanks (1882) 9 QBD 308 in support of the above statement and for emphasis on the right of citizens to assemble in public for a lawful purpose.

This leads me to a consideration of section 13(a) of NRCD 68. Certainly if a meeting, procession or demonstration is being held lawfully and nothing done by persons attending such meeting or forming the procession or demonstration contravenes the criminal law such persons shall not be guilty under section 13(a) of the Decree. Beaty v Gillbanks, supra is illustrative of the scope of the freedom articulated by article 21(d) of the 1992 Constitution. At page 314-315 of the report of that case Field J rightly said:

“What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amount to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition and the question of the justices whether the facts stated in the case constituted the offence charged in the information must therefore be answered in the negative.”

By their writ of summons the plaintiff sought declarations concerning the constitutionality of section 12(c) and 13 of the Public Order Decree 1972 (NRCD 68). The orders which this court made on 22 July 1993 however affect only sections 12(a) and 13(a) of the Decree. In my respectful opinion we could not grant a declaration in favour of the plaintiff affecting section 12(c) of the Decree. It would have been irresponsible for a court to order that sub-section 12(c) which deals with the powers of the police and other authorised public officers to stop and disperse unlawful assemblies, that the police should remain helpless onlookers in a situation in which a “breach of the peace has taken or is taking place or is considered by the officer as likely to take place”.

It is however obvious that the sub-section which the plaintiff sought to attack was sub-section 12(a) which is the corresponding power vested in the police or other authorised public authority with respect to breaches of sections 7 and 8 of the Decree. It will therefore be amended to read section 12(a) in place of section 12(c). The relief affecting the whole of section 13 was also restricted to section 13(a) as section 13(b) had no relevance to any activity as was envisaged by sections 7 and 8 of the Decree. In any case the plaintiff made no complaint concerning the provisions contained in sections 10 and 11 of the Decree.

One little difficulty however arises. Section 8(1)(b) refers to the celebration of a “traditional custom” while section 10(2)(a) speaks of the celebration of “any custom.” It seems to me that “traditional customs” are such notorious affairs that we can take judicial notice of them. These come under section 8 of the decree and will thus be affected by the unconstitutionality of that section. On the other hand such customs as may be prohibited under section 10(2)(a) of the Decree are those customs which from the intendment of that section are anti-social, degenerative of morals or lewd and profane singing and dancing in connection with fetish or other worship or activity.

Section 7 of the Decree has been quoted and need not be repeated here. The essential feature of that section is that the Commissioner (now Minister) may by executive instrument prohibit for not more than one week the holding of a public meeting or procession in a specified place. Indeed in their respective statements of case none of the parties suggested or submitted that an executive instrument had been passed by the Minister in respect of any of the incidents complained of.

However, the defendants made two averments which brought section 7 into issue. First the defendants averred that sections 7, 8, 12(c) and 13 of the Public Order Decree 1972 (NRCD 68) were “reasonable and lawful restrictions on the freedom stipulated in article 21(d) of the constitution by virtue of article 21(4) of the constitution”. Next the defendants traversed generally “every allegation of fact and law “contained in the plaintiff’s statement of case”. The issue joined by the parties consequently required this court to determine, inter alia, whether section 7 was inconsistent with and a contravention of the 1992 constitution. Since the plaintiff was seeking a declaration to that effect against which the defendants were contesting, and there was no challenge as to whether the plaintiff had locus standi in the matter, this court had jurisdiction to entertain that issue.

The generality of section 7 is to create a prior restraint on the freedom of the citizen to form or hold a meeting or procession and in terms of article 21(d) also to demonstrate in a public place. A prior restraint is an injunction prohibiting the freedom of assembly, procession or demonstration, whether such injunction or prohibition is imposed by statute or by an order of court. It may be said that in this case, the prohibition or injunction may not be for more than one week. But then neither the section nor the whole Decree assures that the prohibiting executive instrument cannot be repeated. Consequently when such a power is exercised by the minister it becomes a clog on the citizen’s freedom to assemble, process and demonstrate. In Kunz v New York 340 US 290 (1951) the US Supreme Court said:

“It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.”

Section 7(1) therefore constitutes a prior restraint on the freedom of the citizen with respect to his rights under article 21(d) and is unconstitutional and void. However the principle or prior restraint is not unknown to our constitution. Article 21(4)(a), and to a certain extent and in special circumstances, article 21(4)(e), clearly enunciate the principle.

It will be observed that under article 21(4)(a) the power to impose restrictions is vested in the courts while in article 21(4)(c) the power, as required to control those situations mentioned therein, must be granted by a law which imposes reasonable restrictions on the fundamental freedoms but does not deny the citizen the fundamental freedoms to which he is entitled.

In other words the citizens freedoms may be restricted by law on the grounds stated in the constitution but they cannot be denied. Any such denial will be unconstitutional and void. Again, with respect to restrictions imposed by a court the audi alteram partem rule must be adhered to. In Carroll v President & Commissioners of Princess Ann 393 US 175 (1968) the US Supreme Court held that an ex parte order forbidding a rally was unconstitutional where the applicants could not demonstrate that it was impossible to notify the opposing party in order to afford it the opportunity of contesting the application.

Section 7(2) raises an entirely different issue from section 7(1). In section 7(2) no lawful public meeting or procession can be held in the places mentioned therein “except with the written consent of the Commissioner or any person authorised by him”. It will be noted that for the first time in the history of our constitutional development article 21(d) provides for the right of the citizen to demonstrate. To demonstrate means either to petition for the redress of grievances or express support for or opposition to a cause. Once again, whereas in the former constitutions the citizen was not to be “hindered” in the enjoyment of his fundamental freedoms, in the 1992 Constitution there is a “right” conferred on the citizen in the enjoyment of his freedom. This positive attitude towards the enjoyment of the freedoms cannot be abridged by a law which prevents the citizen from delivering his protest even to the seat of government. In Adderley v Florida 385 US 39 (1966) one Adderley and others were convicted for trespassing upon the premises of a Florida county jail. The defendants had gone on the jail premises to protest against the arrest of their fellow students. They refused to leave on being notified that they would be arrested for trespass. The defendants claimed that the conviction violated their constitutional right of assembly. The US Supreme Court affirmed their convictions. I however incline to the views of Mr Justice Douglas expressed in his dissent in which the Chief Justice Warren and Mr Justice Bremen concurred and I adopt them in support of my opinion in the present case. He said:

“There may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other cases it may be necessary to adjust the right to petition for redress of grievances to the other interests inhering in the uses to which the public property is normally put… But this is quite different from saying that all public places are off limits to people with grievances… And it is farther yet from saying that the “custodian” of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances… For to place such discretion in any public official, be he the “custodian” of the public property or the local police commissioner ... is to place those who assert their First Amendment rights at his mercy. It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government.”

The sub-section also provides that any such meeting or procession cannot be lawfully held except with the consent of the Commissioner or any person authorised by him. This provision gives the Commissioner an unfettered right to refuse his consent. To invest the Commissioner with such unfettered discretion is to place those who assert their constitutional rights of assembly, procession and demonstration at his mercy. It gives him the awesome power to decide who shall be permitted to approach those places mentioned in the Decree. The sub-section 7(2) is also clearly unconstitutional.

In their statement of case, the defendants admit having withdrawn two permits and breaking up a third procession - though they did not apply any violence. In their view their actions were “lawful and reasonable exercise of authority vested in the police by Public Order Decree 1972 (NRCD 68)”.

Before us the Honourable Deputy Attorney-General submitted that as long as the police were not vested with unfettered authority their actions could be reviewed by the courts. He could not say under what law such actions as were complained of against the defendants could be reviewed by the courts.

Section 8 provided for the obtaining of a “permit”. It was not denied by the defendants that in all the three instances the plaintiff had applied for permits and had been so granted. What section of the Public Order Decree entitled them to withdraw the permits they did not say. By section 8(4) it was only where a police officer refuses to grant a permit under section 8 should he “inform the applicant in writing of the reasons for his refusal”. It is clear that even if the provisions of section 8 were lawful, which they are not, once the permit was granted there was no lawful authority for the police to withdraw it. The fact that other persons might disturb that meeting or procession and thereby cause a breach of the peace would not be sufficient reason or ground for withdrawing the permit.

The complaint before us was that section 8 of the Decree was inconsistent with the provisions of article 21(d) of the constitution and therefore null, void and unenforceable. The single issue raised by this section is the validity of permits as abridgements of the constitutional rights enshrined in article 21(d) of the 1992 constitution. The matter is not without authority. There are relevant cases decided in the United States, Canada, India, Pakistan, in the West Indies and in the Privy Council in the United Kingdom. The United States cases predominate because the issue of the validity of local and state permits for meetings assemblies, processions and demonstrations of the Civil Rights movements and activists have been considered in a variety of landmark judgments.

The history of the Civil Rights movement in the United States led by Martin Luther King Jnr and other American southern black people and organisations in the 1950’s and 1960’s are too well documented to require repetition in this opinion. It must be admitted that this movement by the southern blacks fuelled the wrath of the southern white communities who employed two techniques against the black protesters namely, prosecutions for (a) criminal trespass and (b) breaches of the peace. The basis of these two techniques were the laws relating to licensing and permits. In the Adderley case supra Mr Justice Douglas concluded his dissent thus:

“Today a trespass law is used to penalise people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end. It is said that the sheriff did not make the arrests because of the views which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit.”

We are concerned with permits. Section 8(2) requires that the superior police officer shall consider the application for a permit “fairly and impartially”. The duty to act fairly and impartially presupposes a duty to make a determination between competing interests. In the instant sub-section it involves the choice between two positions one of which is illusory - the citizen’s rights of assembly, procession and demonstration as against the discretion of the senior police officer in determining whether to refuse a permit on the grounds that there is the likelihood of a breach of the peace or that the meeting or procession will be prejudicial to national security. The sub-section provides no guide as to the form and content of an application for a permit nor the yardstick or the standard by which the senior police officer shall grant a permit. Although the senior police officer must inform the applicant of the reasons for his refusal to grant the permit, such refusal cannot be challenged in any court. Thus a senior police officer may out of prejudice, bias or even political preference refuse a permit on flippant and untenable grounds.

I have already referred to Mr Justice Douglas’ dissenting opinion in the Adderley case, supra, and the necessity to prevent any abridgment of the fundamental human rights of the citizen. With our political history then as a guide, the danger that such awesome power, as is contained in section 8 of the Decree, will be used to suppress the fundamental freedoms and civil rights of our people becomes real and must be struck down as unconstitutional.

In Saia v New York 334 US 558 (1948) at 560, 561, Mr Justice Douglas, delivering the majority opinion of the US Supreme Court said:

“In Hague v CIO 307 US 496 (1939), we struck down a city ordinance which required a licence from a local official for a public assembly on the streets or highways or in the public parks or public buildings. The official was empowered to refuse the permit if in his opinion the refusal would prevent “riots, disturbances or disorderly assemblage.” We held that he ordinance was void on its face because it could be made “the instrument of arbitrary suppression of free expression of views on national affairs.” The present ordinance has the same defects. The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal.”

In Saia v New York, supra, the ordinance complained of required anyone seeking to use a loudspeaker system in a public place to obtain a permit. But absolute discretion to grant or refuse such permit was vested in the Chief of Police. The ordinance was held to be unconstitutional. In Hague v CIO, supra, at pages 515-516 Mr Justice Roberts said:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all;… but it must not, in the guise of regulation, be abridged or denied.” (Emphasis mine.)

Under our present constitution therefore, while in appropriate cases either the courts or a relevant law may impose a restriction on any of the freedoms contained in article 21, the requirement that a permit be obtained before the exercise thereof will be unconstitutional and void.

The Honourable Deputy Attorney-General referred to the First Amendment to the United States constitution and submitted that that amendment was a restriction on the United States Congress to make laws abridging certain freedoms. He may well be right. The civil rights cases however show that the major victories won in aid of the improvement in the social and political standing of the African-American have succeeded on the combined application of the First and Fourteenth Amendments to that constitution.

It is said that the first ten amendments to the United States Constitution constitute a Bill of Rights. In 1961, in the Akoto case, supra, our Supreme Court missed the opportunity to designate article 13 of the 1960 Constitution as a Bill of Rights. The court said at page 534 of the report:

The suggestion that the declarations made by the President on assumption of office constitute a “Bill of Rights” in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.”

I think the court proceeded on the principle of ubi jus, ibi remedium. Since no remedy was provided for a breach of article 13 the matter was not justiciable. Of course our countrymen and women learnt a bitter lesson from that judgment. Every constitution since then has provided for punishment for the infringement of breach of the Presidential Oath. In the present constitution the framers have done the reverse of the United States First Amendment provisions. They have set out in clear and unmistakable terms the fundamental human and civil rights which our people must enjoy. In chapter 5 of the 1992 Constitution, appropriate procedures for redress and enforcement of these rights are provided for in article 33 of the constitution.

It is interesting to note that article 33(5) extends the scope of human rights enjoyment when it says that the rights mentioned in chapter 5 “shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man”. I have no doubt in my mind that the framers of the constitution intended that the citizens of this country should enjoy the fullest measure of responsible human and civil rights. Therefore any law which seeks to abridge these freedoms and rights must be struck down as unconstitutional.

The requirement of a permit or licence is one such abridgement of the constitutional right.

Finally the Honourable Deputy Attorney-General submitted that this court should consider the necessity for the police to have the power to perform their duties effectively. He cited the timely police and security forces intervention in the recent spate of ethnic conflicts. In his view the police could only perform their duties effectively if they could rely on the provisions of the Public Order Decree. Further that with respect to the exercise of the undoubted constitutional right of the citizen to meet, process and demonstrate the retention of sections 7 and 8 of the Public Order Decree with their consent and permit requirements was necessary to ensure that the police are able to “prevent actions which are prejudicial to the rights and freedoms of others or the public peace”.

The meaning of the word “permit” therefore becomes crucial in the consideration of this submission. The police have undoubted peace-keeping powers but can they prevent the citizen by the use of their permit from exercising his fundamental human and civil rights? In Berton v Alliance Economic Investment Co [1922] 1 KB at 759 Lord Atkin defined a permit in this manner:

“To my mind the word “permit” means one of two things, either to give leave for an act which without that leave could not legally be done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it.”

I subscribe wholly to the above dictum. The object of the consent or permit requirement within the intendment of section 7 and 8 of the Decree is to give leave for the performance of an act which, without such consent or permit, is forbidden by law. The necessary implication therefrom is that under the Public Order Decree, meetings, processions and demonstrations are prohibited by law unless sanctioned by the police or other such authority. This proposition - and I cannot think of a better statement of the legal position - clearly violates the enshrined provisions of article 21(d) as it constitutes a serious abridgement of the human rights of the citizen. Where any law or action is in conflict with the letter and spirit of the constitution, which is the fundamental law of the land, then to the extent of such conflict or inconsistency that law is unconstitutional, void and unenforceable.

In Francis v Chief of Police [1973] 2 All ER 251, a case from which I have derived much assistance in preparing this opinion, Their Lordships of the Board of the Privy Council had occasion to examine the issue of permits and their constitutionality with respect to the constitution of the West Indian State of St Christopher, Nevis and Anguilla. The matter concerned in that case was the constitutionality of section 5(1) of the Public Meetings And Procession Act (1969) of that country which gave unfettered discretion to “the Chief of Police to grant or refuse permission for the use of noisy instruments at public meetings”. Mr Francis was charged with using a noisy instrument, a loudspeaker, at a public meeting without first having obtained a permit from the Chief of Police. The issue raised for determination by Their Lordships in the Privy Council was whether section 5(1) of the Act constituted an unreasonable restriction of the freedoms contained in section 10 of that country’s constitution.

In the Francis case, supra, the Board advised that section 5(1) of the Act was not unconstitutional as “the use of loudspeakers and other noisy instruments is an adjunct or accessory” to the holding of meetings, processions and demonstration. Interest in the Francis case, supra arises because the St Christopher Public Meetings And Processions Ordinance is in content almost similar to our Public Order Decree 1972. The essential differences are (1) The St Christopher Ordinance deals separately with each fundamental freedom and provides a necessary regulation for the enjoyment of each right by the citizen and (2) there is a right of appeal to the Governor in the event of a refusal to grant a permit. Thus under section 3 of the St Christopher Ordinance which requires any person wishing to hold a public meeting to inform the police, the Board said at page 255(f) of the report:

“It is to be noted that under section 3 a person who wishes to hold a public meeting, though he does have to give notice of it, does not have to ask permission, and the holding of the meeting cannot be prohibited or restricted except in special circumstances connected with the preservation of public order.” (Emphasis mine.)

On the other hand under our Public Order Decree, as I have said earlier, there are no such freedoms save those that are permitted by the police or other authority. The Francis case, supra therefore distinguished permits which affect the fundamental human and civil rights from those that are adjunct or accessory to the enjoyment of those freedoms. The former are unconstitutional. In my respectful opinion it is not necessary for effective policing that the police or any other authority shall be invested with the power to consent or issue permits for the enjoyment or exercise of the fundamental human or civil rights of the citizen as enshrined in the constitution.

In rendering this opinion I have considered and applied the views, both majority and dissent, contained in the judgments of the United States Supreme Court which show the principles and policy considerations involved. In my respectful opinion they constitute useful guides to the interpretation of our constitution, particularly the chapter on fundamental human and civil rights.

In the Francis case, supra, at page 259, Lord Pearson writing for the Board noted that:

“The American judges look for the inherent limitations which there must be in the fundamental freedoms of the individual if the freedom of others and the interests of the community are not to be infringed.”

Lord Pearson suggests two ways which will be useful in our context in construing constitutional provisions affecting human and civil rights. One way will be to read into our article 21(1)(d) “the necessary limitations as are inherent” in the fundamental freedoms of assembly including the freedom to take part in processions and demonstrations. The other way will be to examine article 21(1)(d) to see whether “according to the literal meaning of the words there is a prima facie hindering of or interference with the freedom of assembly, procession or demonstration” and, if there is, to examine article 21(4) “to see whether such hindering or interference is justifiable”.

I fully subscribe to the two ways stated above for construing the constitutionality of article 21(d). The first way does not impose any difficulty in its construction. The necessary limitations which are inherent in the exercise or enjoyment of any “right” of assembly, procession or demonstration are that the citizen must observe the law, in particular that part of the Criminal Code which deals with the preservation of the public peace. The other way however presents some difficulty. The literal meaning of article 21(4) implies that in certain circumstances there can be laws to restrict the constitutional provisions under article 21. The rider to the construction of article 21(4) is, as I have stated earlier, that the law must provide for restrictions which must be neither inconsistent with nor in contravention of the provisions of the constitution. Within the intendment of article 21(4), the phrase “public order” appearing therein must be given such a wide interpretation as will protect the constitutional rights of other citizens.

In construing article 21(d) and 21(4) therefore it is clear that (1) the concept of consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process or demonstrate is outside their purview. Sections 7 and 8 of the Public Order Decree are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) and are unconstitutional, void and enforceable, (2) some restrictions as are provided for by article 21(4) may be necessary from time to time and upon proper occasion. But the right to assemble, process or demonstrate cannot be denied. The section of the Public Order Decree 1972 (NRCD 68) which formed the basis of the plaintiff’s writ were ex facie unconstitutional, void and unenforceable.

It is for these reasons that the plaintiff’s writ succeeded, and the declarations were granted and the orders made.

Declarations granted.

S Kwami Tetteh, Legal Practitioner.