Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday, June 23, 2016
The Supreme Court yesterday
ordered the Attorney General (AG) to produce the agreement signed between the National
Democratic Congress (NDC) government and the United States of America to bring
to Ghana the two hardcore terrorists that were held at Guantanamo Bay.
The inspection of the agreement
by the court presided over by Justice William Atuguba will be done in camera on
July 6, 2016 and that will determine whether by its nature and scope, details
of the agreement should be disclosed to the public.
Parent Suit
Two Ghanaians—Magaret Bamfo, an
86-year-old retired conference officer
of the ministry of foreign affairs and Henry Nana Boakye, a student of Ghana
School of Law—filed the suit against the government asking the Supreme Court to
declare that President John Mahama acted unconstitutionally by accepting the former
Al-Qaeda terrorists in Ghana.
The case took a new twist on
April 12 this year when the defendants, made up of the Attorney General and the
Minister of the Interior, filed a process averring that Ghana actually has an
existing agreement with the United States government regarding the two
detainees whose presence continues to generate public uproar.
The revelation by the AG was a
sharp departure from the government’s widely-held position that the acceptance
of the two Al-Qaeda foot soldiers—Mahmud Umar Muhammad Bin Atef, 36 and Khalid
Muhammad Salih Al-Dhuby, 34—was purely a “diplomatic arrangement exercised
through an executive power by the president.”
Interlocutory Action
Instead of filing their
statement of case to contest the issue, the AG rather filed an interlocutory
application seeking to set aside the whole action by the plaintiffs on the
grounds that the agreement the government has with the US government to bring
the detainees enjoys privileges and protections under the 1992 Constitution.
Interestingly, the AG on Monday
failed to appear before the court and the five-member panel, presided over by
Justice William Atuguba, threatened to go ahead and determine the case if the
defendants did not come to court for the case.
Court Probe
Yesterday, when sitting resumed,
Solicitor General Helen Awo Ziwu led a team of lawyers for the defence and the
judges took turns to probe the defendant’s request that the Note Verbale (which is a diplomatic
communication prepared in the third person and unsigned) should not be
disclosed.
The Solicitor General asserted that
the agreement Ghana has with the US government enjoys various privileges and
protections available under the law, including the protection under the State
Secret Act and the protection under the Evidence Decree.
She said the agreement the
plaintiffs were requesting to be made public is not the kind which is
contemplated in Article 75, saying, “It is the confidential nature.”
She said the Note Verbale could only be looked at in
camera, adding, “We are inviting the court to exercise its jurisdiction under
Article 135 (1) and (3) of the 1992 Constitution to determine whether the
diplomatic notes exchanged between the government and the United States is of
confidential nature.”
The Solicitor General said the
details, terms and conditions of the Gitmo 2 stay in Ghana were contained in
the notes exchanged between the government and the United States, saying, “It
does not become an agreement under Article 75.”
Plaintiff‘s Position
Nana Agyei Barfuor Awuah, who
represented the plaintiffs, said after the court proceedings, “After contending
in our statement of case that the agreement is of the kind that requires
parliamentary approval in accordance with Article 75 of the 1992 Constitution, the
AG in their response stated that it is not the kind which is contemplated in
Article 75.
“By virtue of that disputation
by the AG, it was essential for the agreement to be produced otherwise it may
seem the court was going to determine the case without having looked at the said
agreement which is the subject matter of the suit. We want them to produce the
agreement for the court to determine the nature and scope of it as to whether
it is the kind contemplated by Article 75.”
Nana Barfuor Awuah said, “It was
our case that Section 1 of the State Secret Act they were asserting did not
avail them because that borders on the leakage of state information for the use
of foreign powers. In this particular case, we require that information for the
enforcement of the Constitution and the recipients of that information was not
a foreign power. It was the Supreme Court and then a Ghanaian citizen
exercising his right under Article 2 (1).”
Proper Interpretation
The plaintiffs are seeking, among other reliefs, a declaration
that on a true and proper interpretation of Article 75 of the1992 Constitution
of Ghana, the President of the Republic of Ghana acted unconstitutionally by
agreeing to the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad
Salih Al-Dhuby (both profiled terrorists and former detainees of Guantanamo
Bay) to the Republic of Ghana without 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.
They are further seeking 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, who is
under an obligation to execute and maintain the laws of Ghana, breached 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.
Other justices on the panel were
Sophia Akufo, Jones Victor Dotse, Anin Yeboah and Paul Baffoe Bonney.
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