OccupyGhana has charged government to present to parliament a Legislative Instrument (LI) on the status, privileges and immunities provided under the US Defence Co-operation Agreement.
“We do not think that Parliament’s ratification of the agreement under Article 75 is a substitute for the requirement to pass a Legislative Instrument under Article 11(7) of the Constitution,” the pressure group said in a statement.
According to the think-tank, section 2 of the Diplomatic Immunities Act demands that “the President may, by Legislative Instrument, make regulations extending any or all of the immunities and privileges conferred on diplomatic agents by virtue of this Diplomatic Immunities Act, 1962 (Act 148), to prescribed organisations and prescribed representatives and officials, subject to such conditions and limitations as may be prescribed.”
In the statement, the pressure group was categorical that these privileges and immunities apply automatically to “diplomatic agents” (which would include military attachés) and not to any other persons or organisations, including members of visiting military forces, who are ordinarily covered by the Visiting Forces Act, 1962 (Act 117).
However, OccupyGhana noted that this provision empowers the President to extend the status, privileges and immunities to persons other than diplomats properly so-called.
It explained that once the President elects to exercise this power, he is bound to act by or under a Legislative Instrument, which must be placed before and passed by Parliament under Article 11 of the Constitution.
The pressure group, therefore, cautioned that although other portions of the agreement may come into force in accordance with the terms of the agreement and after parliamentary ratification, the portions of the agreement that purport to confer diplomatic status, privileges and immunities on the US military and its agents would require a formal Legislative Instrument prepared by the President to be laid before Parliament for passage as required by Article 11 of the 1992 Constitution.
“That instrument would specifically prescribe the US military as an organisation to which Ghana is extending these rights and may contain conditions and limitations.
“It is in the light of these that we call for a draft legislative instrument on the status, privileges and immunities provided for under the agreement to be prepared and then we comply with Article 11 of the Constitution to bring those into force. At the very least, it will give Parliament yet another opportunity to consider the relevant and affected portions of the agreement, and, hopefully, this time with more soberness and less acrimony,” it said.
“Indeed, in 1957 when Ghana passed the International Bank, Fund and Finance Corporation Act, 1957 (No. 17), it provided in section 3 that a Legislative Instrument was required before the officers of the World Bank, International Monetary Fund and International Finance Corporation would have the status, privileges and immunities that were agreed upon.
“Similar provisions exist in section 3 of the International Development Association Act, 1960 (Act 11) and the West African Examinations Council Act, 2006 (Act 719). We would also want to draw attention to the Diplomatic Immunities Instrument, 1978 (LI 1180), which extended certain immunities and privileges to the Science Education Programme for Africa (SEPA),” it added. OccupyGhana commended government for properly presenting the agreement to Parliament for ratification, saying, “This is probably only the thirdtime in the history of the Fourth Republic that such an agreement has been sent for parliamentary ratification”.
It noted that the first was the 2003 Bilateral Agreement between the Ghana government and the Government of the United States regarding the surrender of offenders to the International Criminal Court.
It also referred to the GITMO-2 Agreement, which was only sent to Parliament for ratification after litigation and an order to do so by the Supreme Court.
“OccupyGhanabelieves that no such agreement, if required to be ratified by Parliament, should be assumed to be confidential. While deliberations over matters of defence and national security may require confidentiality, the starting point for agreements between states, which are of the utmost public interest, should be that where such agreements are to be ratified by Parliament, they would be made available to the public.
“Where confidentiality is genuinely required, we should ensure that, firstly, such documents are formally given the requisite status under the State Secrets Act, 1962 (Act 101), and, secondly, the security classification of such agreements is specifically agreed upon in negotiations so that the state parties to them would have a uniform and reciprocal treatment of such documents in their respective jurisdictions.
“Second, with the terms of the agreement having been made public, there was no need for Parliament to have rushed its ratification.
“The speed to ratify the agreement on the last day of sitting and at a time when the vast majority of Ghanaians were realising probably for the first time that we have such agreements was not right.
“Ghanaians deserved more time to debate and assimilate its terms, which would have better informed our support of or opposition to it. The night time, acrimonious ratification proceedings were unfortunate.
“In addition, we cannot help but express our disappointment that the Right to Information Bill has not attracted this sense of urgency from this or any Parliament.
“Third, we note that the agreement, although ratified by Parliament, will not immediately come into force. According to Article 19 of the agreement, it will only come into force when the parties to it have exchanged the required diplomatic ‘Notes.’
“This third issue raises the question [of] whether the portion(s) of the agreement that purport to grant diplomatic status, privileges and immunities to the members of the US military can come into force simply with parliamentary ratification or whether a Legislative Instrument is required to be laid in and passed by Parliament before the status, privileges and immunities may be applied to members of the US military covered by the agreement,” it added.