...As the Supreme Court of Ghana is confronted with constitutional answers to allegations of electoral improprieties that have the effect of subverting the “Security of Democracy”?
The OmanbaPa Reserach Group
Keywords: Habeas Corpus Act 1816, Supremacy of Parliament, “Security of the State”- whether detention without trial lawful, whether powers confer on Parliament were in excess and contrary to solemn declaration made by President on assumption office, judicial review, Habeas Corpus- appeal against refusal- whether formal return necessary, peace and wartime measures whether court required to enquire into truth of grounds of detention
“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law...I know of only one authority, which might justify the suggested method of construction. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less’... After all this long discussion, the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has’. I have an opinion that they cannot and the case should be decided accordingly,” the dissenting opinion of Atkin LJ in Liversidge v. Anderson  AC 206, a case involving the relationship of the courts and the State and the help it can give to the executive in times of national emergency?
CONSTITUTIONAL AND LEGAL HISTORY
On the 28th day of August 1961; the Supreme Court of Ghana, was confronted with legal interpretation of Article 13(1) of the 1960 Republican Constitution and here, in relation to its consistency with the Preventive Detention Act [PDA] (1958 (No. 17 of 1958) under which the Seniour Linguist of the Asantehene- Baffour Osei Akoto, and Seven Others- namely: Peter Alex Danso (alias Kwaku Danso), Osei Assibey Mensah, Nana Antwi Bosiako (alias John Mensah), Joseph Kojo Antwi-Kusi (alias Anane Antwi-Kusi), Benjamin Kweku Owusu, Andrew Kojo Edusei, and Halidu Kramo, were summarily detained without trial on an offence “prejudicial to the security of the State”. The grounds for the detention were that they encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo and associated themselves with persons who have adopted a policy of violence as a means of achieving political aims in those regions. Baffour Akoto was a “founding-member” of the National Liberation Movement (NLM): a political setup that advocated for a federated Ghana.
Dr. Joseph Boakye Dankwa- Counsel for the suspects, who probably, by the fate of political destiny became victim of the same PDA- sought to argue that by virtue of section 3 of the Habeas Corpus Act 1816, the High Court was bound to enquire into the truth of the facts alleged in the grounds upon which the Governor-General was satisfied that the order of arrest of the suspects, was necessary to prevent Akoto & Co. acting in a manner prejudicial to the security of the State. Baffour Akoto and Others were arrested and detained on the 10th and 11th November, 1959, under an order made by the President and signed on his behalf by the Minister of the Interior under section 2 of the Act. Their application to the High Court for writs of habeas corpus and subjiciendum was refused on the grounds of lack of jurisdiction.
At the Supreme Court, Counsel Dr J. B. raised seven crucial points on behalf of the suspects:
 The learned [High Court] judge acted in excess of jurisdiction in refusing the application without making an order for formal return
 By virtue of the Habeas Corpus Act of 1816 the court is required to enquire into the truth of the facts contained in “The Grounds” upon which the Governor-General Kwame Nkrumah was satisfied that the order was necessary to prevent the appellants from acting in a manner prejudicial to the security of the state
 The Minister of Interior [A. E. Nkumsah] who signed the order for and on behalf of the Governor-General was actuated by malice.
 The grounds upon which the appellants were detained do not fall within the ambit of the expression “Acts prejudicial to the security of the State”
 By virtue of section 3 of the Criminal Procedure Code, Cap.10 of the Laws of the Laws of the Gold Coast (1951 Rev.) now section 1 of the Criminal Procedure Code 1960 (Act 30), the Governor-General is precluded from exercising the powers conferred on him under the Preventive Detention Act, to make an order for the arrest and detention of the appellants without trial except in accordance with the Criminal Procedure Code.
 The Preventive Detention Act, 1958, by virtue of which the appellants were detained, is in excess of the powers conferred on Parliament by the Constitution of the Republic of Ghana with respect to article 13(1) of the Constitution, or is contrary to the solemn declaration of the fundamental principles made by the President on assumption of office.
 The Preventive Detention Act not having been passed upon a declaration of emergency [but in peace time] is in violation of the Constitution of the Republic of Ghana.
Re Akoto centred on whether or not the Parliament of Ghana or the Constitution was sovereign and supreme. Then were the balancing effects of the fundamental human rights and freedoms as provided for under the Constitution as against the legislative manoeuvres designed to forestall the security of the State. Dr Dankwa talks of Constitutional supremacy- arguing that PDA was made in excess of the power conferred on Parliament by or under the Constitution with respect to Article 13(1) and until the PDA is repealed by the people, (a) freedom and justice shall not be honoured and maintained, (b) no person should suffer discrimination on grounds of political belief, and (c) no person should be deprived of freedom of speech or of the right to move and assemble or of the right of access to the courts.
Attorney-General Geoffrey Bing, thought otherwise, holding that the solemn declaration made by President Kwame Nkrumah on assumption of power under the Article 13(1), in subscribing to the declaration that “The powers of Government spring from the will of the people and should be exercised in accordance therewith” and here; in the context of honouring and maintaining freedom and justice, prohibition of discrimination on grounds of political belief, non-deprivation of the freedom of speech, or of the right to move and assemble without hindrance or of access to the courts of law, like the Coronation Oath taken by the Queen of England, is nothing more than “moral obligation” and therefore without legal responsibility on the part of the President than the electorates punishing him at elections.
Equating the Ghanaian experiment to that of the sovereign Parliament of UK, the Attorney-General said: “We are of opinion that the effect of Article 20 of the Constitution which provides for “The Sovereign Parliament”, is that subject to the following qualification, Parliament can make any law it considers necessary. The limitations are that (a) Parliament cannot alter any of the entrenched articles in the Constitution unless there has been a referendum in which the will of the people is respected; (b) Parliament can however of its own volition, increase, but not diminish the entrenched articles; (c) the articles which are not entrenched can only be altered by an Act which specifically amends the Constitution.” Dr J.B. Dankwa disagreed and pleaded with the Supreme Court to invoke its judicial power under section 2 of Article 42 of the 1960 Constitution to declare the Preventive Detention Act invalid on the grounds that it was made in excess of the power conferred on Parliament.
The appellants’ application for habeas corpus was supported by affidavit with exhibits disclosing: (a) The written order of detention; (b) The written information furnished with it in accordance with the requirements of the Act; (c) Written representations by the detainees to the Governor-General and; (d) The reply of the Governor-General. An affidavit was filed on behalf of the Minister of the Interior which stated that the detention order was made in good faith and that the Governor-General was satisfied that the “order is necessary to prevent the persons designed from acting in a manner prejudicial to the state, Dr Dankwa argued that arrest was actuated on bad faith. The grounds of detention served upon the detainees contain particulars of the previous acts upon which the conclusion of the Governor-General is based.
1. The affidavits disclosed all the facts relevant for determining whether the writ should issue or not. Rule 14 of Order 59 does not oblige a judge to make a formal return in every case. He is entitled to dispose of the case on the affidavits. Dicta of Goddard, LJ. in R v. Home Secretary, ex parte Greene  3 All E.R. 104 at p. 123 applied;
2. Although the Habeas Corpus Act, 1816, is a statute of general application, it does not apply in this case because the Act under which the appellants were detained vests plenary discretion in the Governor-General (now the President) if satisfied that such an order is necessary. Upon production of the order the only question which has to be considered is its legality. If the order is lawful the detention is lawful: Liversidge v. Anderson  A.C. 206, H.L. followed;
3. The court can only look into allegation of bad faith by high officers of the state if there is positive evidence, which is singularly absent in this case: Nakkuda Ali v. M.E. De S. Jayarakne  A.C. 66 at p.77, P.C. cited;
4. The term “security of the state” is not limited to the defence of Ghana against a foreign power, and the powers of the Preventive Detention Act may be invoked where the basis of aw is sought to be undermined and attempts are being made to cause disruption in the normal functioning of government;
5. The Preventive Detention Act is to be distinguished from the Criminal Code, (Act 29), in that the code concerns itself with acts already committed whereas the Act is aimed at preventing the future commission of acts prejudicial to the safety of the state;
6. Article 13(1) of the Constitution imposes only a moral obligation upon the President of Ghana. Throughout the declaration, which is similar to the Coronation Oath of the Queen of England, the word “should” used is and not “shall”. The declaration does not constitute a bill of rights and does not create legal obligations enforceable in a court of law;
7. The effect of the Article 20 of the Constitution is that Parliament is sovereign and the legislative powers are qualified only with respect to the entrenched Articles therefore;
8. The Preventive Detention Act, 1958, is therefore, not contrary to the Constitution and Parliament is competent to pass such an act even in peace time
The Reasons for the Judgement
Korsah- the Chief Justice, delivering the judgement of the Supreme Court on his own behalf; Van Lare and Akiwumi, JJ.S.C., set out a brief background to the passing of the PDA [as amended] and the relevant sections applicable to the suspects mentioned above, not forgetting the arguments raised by the appellants’ defence counsel, made the following ruling:
 “Since 1st July, 1959, matters relating to preventive detention, other than the statutory power conferred on the Minister responsible for Defence by section 3(2) of the Preventive Detention Act, 1958, have been placed within the portfolio of the Minister of the Interior
 I am authorised to say that the Preventive Detention Order (No. 5) 1959 (L.N. 310) was made by the Governor-General in good faith under section 2 of the Preventive Detention Act, 1958, and the making therefore was duly signified in good faith by the Interior Minister.
 The reason for the making of the said Order is as set out in the recital thereto, namely that in accordance with the provision of section 2 of the Preventive Detention Act Act, 1958, the Governor-General is satisfied that the said Order is necessary to prevent the persons detained acting in a manner prejudicial to the security of the State. The grounds of detention served upon the said detainees contain particulars.”
In the light of the above, the Court concluded that it is not disputed that (a) the appellants [Akoto and Others] belong to the class of persons to whom the PDA applies, (b) that they are the persons mentioned in the order and (c) the order was made by the competent authority. Accordingly, it was not accepted that the High Court judge, on hearing the application was obliged to have released the suspects under rule 14 of Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954 or to have ordered for a formal return to the writ. Thus the justices in Re Akoto said: “We are clearly of the opinion that rule 14 does not make it compulsory that in every case the judge should order a formal return, in this view, we are fortified by what Goddard, LJ (as he was then) in R v. Home Secretary, ex parte Greene.”
“To avoid any misunderstanding, I desire to add that, both in the present case in R v. Home Secretary, ex parte Lees the applicants themselves exhibited to their affidavit copies of the orders under which they were detained, and no question was raised as to the accuracy of the copies. However, cases may arise where detained, and no question was raised where persons who are detained, whether under defence regulations or otherwise, do not, and perhaps cannot, inform the court of the order or warrant under which they are detained. In such a case, if the court sees fit to grant an order nisi or summons to show cause, it will be necessary for the person who has the custody of the prisoner to make an affidavit exhibiting the order or warrant under which he detains the prisoner...,” Goddard LJ said this in the ex parte Greene.
One of the crucial grounds under which a decision of a judge or a court could be challenged is where a wrong law or rule had been wrongly applied or invoked as the basis for his decision. The Supreme Court’s over-reliance on UK law as applied in the war-time case of Liversidge v Anderson in the Re: Akoto had been found to be farce. It was also not true that the Ghanaian Parliament of 1960 with all its entrenched provisions and special powers bestowed on the First President (here, Articles 1(1); 8 and 55) was as sovereign and supreme as that of the United Kingdom. The Court therefore, erred on the interpretation of section 3 of the Habeas Corpus Act 1816 in accepting among other things that ...if Parliament can pass laws to detain persons [without trial] in war-time there is no reason why Parliament cannot exercise the same powers to enact laws to gaol persons such as Akoto and Co. in peace time.
The Judicial Lessons
The decision in the Re Akoto has been strongly criticised and found to be legally defective and as one; punctuated on politics and executive influence as the Justices that sat on the case, mechanically, flopped, to give holistic effect to the “Letter and the Spirit” of the 1960 Constitution. Today, Ghana has undoubtedly, a Sovereign and Supreme Constitution (see Art 1(1)(2); and 2(1)(2. Now, will the Justices in the ongoing Presidential Petition case be likened to Lord Atkin whose lone view in Liversidge; was that the phrase “reasonable cause” in the statute at hand indicated that the actions of the Secretary were meant to be evaluated by an objective test and therefore, within the court’s purview to determine the reasonableness of his actions? Yes. The decision in the NPP v Attorney-General (The 31 December Case), says so.
Researched and Compiled By Asante Fordjour for The OmanbaPa Research Group