Why SC dismissed suit against Ghana-USA Defence agreement

The Supreme Court (SC) has stated that the Defence Co-operation Agreement signed between Ghana and the United States of America (USA) on March 24, 2018 was in the national interest.

“We are convinced that by the terms of the agreement, the Executive seeks to enhance or strengthen the defence and security framework of Ghana in terms of Article 35(2) of the 1992 Constitution and rather hold that the agreement is in the national interest hence the ratification by Parliament,” a seven-member panel of judges presided over by the Chief Justice, Justice Kwasi Anin Yeboah said in a judgement delivered on May 5, 2020.

In the 16-page unanimous decision delivered by Justice S.K Marful Sau, the court said it was of the considered view that national security and defence are of primary concern to every government particularly so as it was contained in Article 35(2) of the 1992 Constitution which provides that “the state shall protect and safeguard the independence, unity and territorial integrity of Ghana, and shall seek the well-being of all her citizens.”

Mr Yaw Brogya Genfi, the Ashanti Regional Organiser of the National Democratic Congress (NDC) who sued the Attorney-General wanted the court to hold that the agreement between the two nations was unconstitutional because the documents submitted to Ghana’s Parliament by the Minister of Defence for ratification under Article 75 of the 1992 Constitution of Ghana was not signed by state parties and for that matter was not an executed agreement envisaged under Article 75.

It is the case of the plaintiff that the people of Ghana were denied their inalienable human rights, the independence of the judiciary provided for under Article 125(3) is nullified, the supremacy of the 1992 Constitution under Article 1 rendered nugatory, the original jurisdiction of the Supreme Court under Article 130 and that of the High Court under Articles 3 and 40 are cancelled and the right of citizens to invoke the jurisdiction of the Supreme Court to enforce the constitution by challenging unconstitutional acts under Article 2 have been taken away by the supposed treaty with the United States of America.

But the court held that the agreement did not contravene Article 75 of the 1992 Constitution neither did the submission of the unsigned international agreement to Parliament for ratification by the Executive contravene Article 75 and any provision of the 1992 Constitution.

The apex court, therefore, noted that it would have done a disservice to Ghana should it apply a mechanical approach in interpreting the phrase “executed” in Article 75 as urged on them by the plaintiff who was only looking at the form of the agreement and not the substance.

“In substance, we are very much convinced that the document which was submitted by the Executive to Parliament though unsigned, was an agreement creating legal obligations between the Republic of Ghana and United States of America. We, therefore, affirm that the said agreement annexed by the plaintiff to his statement of case though unsigned still belonged to the category of agreements that required Parliamentary ratification as stipulated under Article 75 of the 1992 Constitution.”

As regards the argument by the plaintiff that that the agreement could take away the inalienable rights of Ghanaians, the independence of the Supreme Court as well as the High Court, the court took the view that it did not see how the agreement operates to take away the rights of the people or the independence of the Supreme Court and the High Court.

The defence agreement would among other things allow the US military and civilian personnel access to certain facilities in Ghana and provide them privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961.

Ghana is expected to benefit from aid package in excess of $20 million from the USA in the areas of training and grant.

The writ, filed on Monday, March 26, 2018, has Miss Gloria Akuffo, Attorney General and Minister of Justice and Defence Minister, Dominic Nitiwul, as first and second defendants.