Our hands are not tied; GITMO 2 not refugees

The heightened Gitmo 2 case was monumental and could have far-reaching consequences for the country.

That being so, there is need for all aspects of the case to be considered in order to make its determination stand the test of time.

In the year 2016, Margaret Banful and Henry Nana Boakye hauled the erstwhile Attorney-General (A-G) and the Minister for Interior to the Supreme Court for the court to declare that the continued stay of Mahmud Umar Bin Atef and Muhammed Salih Al-Dhuby in Ghana is unlawful. They also sought an order from the court directing the Interior Minister to immediately return the two detainees to the US government.

The two applicants prayed the Supreme Court for “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 Bin Atef and Al-Dhuby (both former detainees of the Guantanamo Bay) to the Republic of Ghana, required ratification by an Act of Parliament or a resolution of Parliament, supported by the votes of more than one-half of all members of Parliament.”

According to them, former President John Dramani Mahama acted unconstitutionally in his failure to obtain the requisite ratification by an Act of Parliament or a resolution of Parliament when he agreed with the government of the US to transfer the two former detainees to Ghana.

Per the directions given by the court, government must within the period of 6 month send the agreement to Parliament for ratification (expiring in 8 January 2018) or have the two detainees sent back to the US.

Presently, government is saying it is unable to immediately execute plans to repatriate the two Guantanamo Bay detainees who have been in Ghana the last two years because of their refugee status. According to official statement by the Minister for Foreign Affairs, she said that “they were issued a decision letter dated July 21, 2016, recognizing their status as refugees. The implication is that in accordance with the United Nations Convention on the status of Refugees of 1951 and the 1967 Protocol on the Status of Refugees as well as Provisions of the Refugees Laws, 1992, PNDC Law 305 (D) of Ghana, the two have attained the status of refugees in our country”

This statement flies in the face of evidence of the law governing refugee status. The Gitmo 2 are not refugees by any stretch of the word in any of the statutes. In reference to the United Nations Convention on the status of Refugees of 1951, it states under Article 1(2), titled “Definition of the term refugee”, as follows:

“A. For the purposes of the present Convention, the term “refugee” shall apply to any person who: (2) As a result of events occurring before 1 January 1951 and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”

The Gitmo 2 are residence in Ghana. The elements of their activities and circumstances under which they came here are clearly known. They do not fall within the scope of the above definition of a refugee. It goes on to say in section C under Article 1 that the convention shall cease to apply to any person falling under the terms of section A if:

He has voluntarily re-availed himself of the protection of the country of his nationality; or

Having lost his nationality, he has voluntarily re-acquired it; or

He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

In regards to these provision, how did we coin the word “refugee” on people who have not lost their nationality? And given the situation where they are reported to have been married to Ghanaian women, they are by our law under Article 7 of the 1992 Constitution Ghanaian nationals; hence why do we call them refugees?

Furthermore, section E of Article 1 emphasizes that the convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

Perhaps, it was a mistake on the part of governments in the statement of the Gitmo 2 refugee status. The facts are explicit and sacred. No amount of semantics can yark the fact that they are not refugees. So far none of these statutes including the Provisions of the Refugees Laws, 1992, PNDC Law 305 sets out the categorization of these two Yemenis as refugees in Ghana. Since there seem to be no facts of evidence alluding to their refugee stat, we should insist that government holds the power for them to be given that.