An expert in matters of law, Mr. Kwasi Prempeh, has assessed the passage of the Imposition of Restriction Bill, the law that essentially clothes President Akufo-Addo with wartime powers to rule by decree, as unconstitutional.
In an essay on the subject, the law expert points out that the Akufo-Addo Administration blundered badly in passing the new law because the passage side-stepped already existing laws that cater to emergency situations.
Also, he points out that the Administration bungled the proper procedure for the passage of such laws and therefore has created a situation where the new law is in conflict with the constitution.
“…our Framers laid down, in Article 31 of the Constitution, a simple but sensible framework to govern and regulate this place during periods of emergency. Titled “Emergency Powers,” Article 31 empowers (1) the President to proceed, upon advice of the Council of State, to declare a state of emergency by issuing a PROCLAMATION to that effect, which proclamation shall be published in the Gazette so as to put the public on notice that a state of emergency has been declared. A Proclamation would typically include a narrative, setting forth the facts and circumstances giving rise to the declaration of emergency as well as the raft of extraordinary measures announced and contemplated (if on an escalating basis) in response to the emergency. (2) Having done so, the President must immediately notify Parliament of “the facts and circumstances leading to the declaration of the state of emergency”. (3) It is then for Parliament to decide, within 72 hours (3 days) of receiving such notification, whether the Proclamation must remain in force or not,” Mr. Prempeh wrote.
He writes further that, “the decision of Parliament, whether to approve or reject the declaration of a state of emergency, is binding on the President. If the Proclamation is approved by Parliament, it will remain in effect for 3 months (90 days) in the first instance, subject to further extensions, each such extension to last one month (30 days) at a time. If the Proclamation is not approved by Parliament, it must expire after 7 days. Parliament may also revoke a Proclamation it has previously approved.
“A state of emergency may be declared for only that part of the country where the emergency situation exists or for the entire country, depending on the nature of the risk or threat. The Framers also wisely left open-ended the facts and circumstances under which a state of emergency may be declared, noting only that those circumstances “include” a natural disaster and acts by persons that threaten the essentials of life, including essential supplies and services.”
He agrees that the Covid-19 pandemic presents a state of emergency for Ghana but points out that Article 31 of the constitution caters to it perfectly. “Article 31, clause 10, allows Parliament to enact legislation authorizing the taking of measures “during any period when a state of emergency is in force,” which measures, if taken in normal times, would constitute an infringement of our fundamental human rights guaranteed in articles 12 to 30 of the Constitution, including our rights to freedom of movement, speech, assembly, worship, and association. However, even during such emergencies, only those measures “that are reasonably justifiable for the purpose of dealing with the situation that exists during that period” are permitted by the Constitution.”
Because of the constitutional procedures laid out to qualify a state of emergency, which chiefly is supposed to be premised on the President first declaring it and Parliament approving same, he argues that because President Akufo-Addo has not declared a state of emergency, a state of emergency essentially does not exist in Ghana to warrant the massive powers he has lavished on himself.
“What about the Imposition of Restrictions Bill laid before Parliament yesterday under a certificate of urgency? Well, it is not clear what the point is of that newly sought legislation. There is already the Emergency Powers Act (Act 472), enacted pursuant to the provisions of Article 31. If it was felt necessary to amend the Emergency Powers Act for any reason, that law could very easily be amended. The motive for resorting to a new Imposition of Restrictions law is, therefore, hard to divine. As far as I can tell, the bill fills no void in our current arsenal of statutory weapons available to the President to fight the domestic side of the present pandemic.
“If the object of the Imposition of Restrictions Bill is to give the President power to take quick extraordinary measures in an emergency, as the Memorandum to the bill suggests, the Emergency Powers Act and Article 31 already give the President the tools to get the job done. (Curiously, while asking for new legislation, the President has not as yet tried to invoke the Emergency Powers Act or any other law for that matter). If, however, the point of the Imposition of Restrictions Bill is to give the President power to assume emergency powers without subjecting himself to Article 31, then there is no constitutional authority for that option of one-man rule by decree, no matter how convenient that option might be for a president,” Mr. Kwesi Prempeh writes.
He points out that in the present crisis, the Government could simply have invoked the Public Health Act once a pandemic was declared by the World Health Organization.
He also points out that the premise of the Imposition of restriction law on Article 24 is wrong and improper. “The reliance on Article 21(4) is even more bizarre. Article 21(4) is a standard limitations clause. Limitations clauses are standard fare in any modern constitution that has a bill of rights. Limitation clauses do not, in themselves, confer authority or power to make any law. All they do, as ours does, is acknowledge and affirm that the fundamental human rights guaranteed in article 21 may be limited by appropriate legislation (passed on the basis of authority conferred by the Constitution) in the ways and on the grounds specified in that clause.”