Quasi-state of emergency: assessing the constitutionality of Ghana’s legislative response to Covid-19

ABSTRACT

On 15 March 2020, the President of the Republic of Ghana addressed the nation on anti-coronavirus measures which took effect immediately. He directed the Attorney-General to submit an emergency legislation to Parliament and the Minister for Health to issue an immediate Executive Instrument to regulate the relevant measures. Five days later, Parliament passed the Imposition of Restrictions Act, 2020 (IRA) after a voice count in its favour. A few days, thereafter, the President issued an Executive Instrument (E.I. 64) pursuant to the IRA. The minority members of Parliament, some legal scholars and interested Ghanaians expressed their disapproval of the procedures leading to the enactment of the IRA as well as its nature, form and content. The contentions cover multiple constitutional and legal grounds including the procedural propriety of using a voice vote in Parliament for emergency legislation, the necessity of a new emergency legislation and the time limit for the new emergency legislation. Essentially, these issues point to assessing the overall constitutionality of the law-making procedures and legislative provisions of the IRA. This is the focus of this paper. The paper argues that the IRA stands unconstitutional from the very beginning of its intended existence. The paper concludes that while the IRA is currently operational, its continued existence is challengeable under the 1992 Constitution of Ghana, thus, there is a window of opportunity to right the wrong.

KEYWORDS:

• Constitutionality
• coronavirus
• emergency legislation
• emergency powers
• Ghana
• state of emergency

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Kwaku Agyeman-Manu, ‘For Immediate Release: Ghana Confirms Two Cases of Covid-19’ (Ministry of Health Press Release, 12 March 2020) <https://ghanahealthservice.org/covid19/downloads/covid_19_first_confirmed_GH.pdf> accessed 2 April 2020.

2 Communications Bureau, ‘President Akufo-Addo Addresses Nation on Measures Taken by Gov’t to Combat the Coronavirus Pandemic’ (Speech, 15 March 2020) <http://presidency.gov.gh/index.php/briefing-room/speeches/1535-president-akufo-addo-addresses-nation-on-measures-taken-by-gov-t-to-combat-the-coronavirus-pandemic> accessed 2 April 2020.

3 Faustina Akwa, ‘Parliament Passes Imposition of Restrictions Bill’ (MyJoyonline, 21 March 2020) <https://www.google.com/amp/s/www.myjoyonline.com/news/politics/parliament-passes-imposition-of-restrictions-bill/amp/> accessed 1 April 2020.

4 That is article 104 of the 1992 Constitution which deals with voting in parliament.

5 Jerry Tsatro Mordy, ‘Minority Signals Supreme Court action after rushed Restriction Bill Approval’ (MyJoyonline, 20 March 2020) <https://www.myjoyonline.com/news/national/minority-signals-supreme-court-action-after-rushed-restriction-bill-approval/?_gl=1*1k959zr*_ga*S25zZUswS0ctNWxXbGZVUVJXWlpJYlRtRmFvbVpRbE0xekNJTGtVdm9YTHRidEtuQ19tbmtoell2VGxOVWdOVA> accessed 2 April 2020.

6 Kwadwo Appiagyei-Atua, ‘Emergency without a State of Emergency: Effect of Imposition of Restrictions Act, 2020 on Rights of Ghanaians’ (MyJoyonline, 2 April 2020) <https://www.myjoyonline.com/opinion/emergency-without-a-state-of-emergency-effect-of-imposition-of-restrictions-act-2020-on-rights-of-ghanaians/> accessed 2 April 2020. See H. Kwasi Prempeh, ‘Executive Powers and Domestic Response to Coronavirus Pandemic: Is the Imposition of Restrictions Bill Necessary?’ (Ghana Law Hub, 23 March 2020) <https://ghanalawhub.com/executive-powers-and-domestic-responses-to-the-coronavirus-pandemic-is-the-imposition-of-restrictions-bill-necessary/?fbclid=lwAR1PUbdGj0q0QmU11E8UElbi_1_aV_EG7vP_qEfJweFHe0gVqhqT79YMWea0> accessed 1 April 2020. See also Joseph Opoku Gakpo, ‘Imposition of Restriction Bill 2020 worse than State of Emergency-Muntaka’ (MyJoyonline, 19 March 2020) <https://www,myjoyonline.com/news/imposition-of-restriction-bill-2020-worse-than-state-of-emergency-muntaka/?_gl=1*297msj*_ga*dWxldnE0RC1vRHVUYTRqZGVJa1p1WDU2U1hZTkdDcTBuQUtaR3VZWFNDMIZvakFIWnAzcFA4SktzaFJuTDhkQQ> accessed 2 April 2020.

7 1992 Constitution of the Republic of Ghana, art 31(9). Emergency Powers Act, 1994 (Act 472), s. 1(2).

8 See Tuffuor v. Attorney General [1980] GLR 637, C.A. sitting as S.C. where Sowah JSC described a constitution as a living organism capable of growth and development.

9 1992 Constitution, art 31(1). EPA, s. 1(1).

10 1992 Constitution, art 31(2). EPA, s. 2(a).

11 1992 Constitution, art 31(4). EPA, s. 3(1).

12 1992 Constitution, art 31(3). EPA, s. 2(b).

13 1992 Constitution, art 31(5). EPA, s. 3(2).

14 1992 Constitution, art 31(6). EPA, s. 4(a).

15 1992 Constitution, art 31(7). EPA, s. 4(b).

16 1992 Constitution, art 31(10). EPA, s. 5(1).

17 EPA, s. 5(2)(b).

18 EPA, s. 5(2)(b)(ix).

19 EPA, s. 5(2)(a).

20 EPA, s. 5(2).

21 EPA, s. 5(3).

22 EPA, s. 5(4).

23 1992 Constitution, art 31(10). EPA, s. 6.

24 Public Health Act, 2012 (Act 851), s. 169(2).

25 As of 12 March 2020, there were 125, 260 confirmed cases and 4613 death worldwide. The WHO’s risk assessment of the pandemic at the global level was ‘very high’. World Health Organisation, ‘Coronavirus disease 2019 (covid-19): Situation report – 52’ (World Health Organisation, 12 March 2020) <https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200312-sitrep-52-covid-19.pdf?sfvrsn=e2bfc9c0_4> accessed 28 May 2020.

26 That the confirmation of the first two cases of covid-19 in Ghana could also satisfy the first two criteria is likely but contentious. This is because while two persons have been infected, the virus did not immediately pose a threat to life and health of the Ghanaian populace, rather the virus posed an impending threat to life and health. Also, while covid-19 may have already caused loss of life or health detriment in other nations around the world, that was not the state of affairs in Ghana when the first two cases were confirmed. The PHA is a domestic legislation intended to be construed domestically and so it will be ill-advised to invoke its powers domestically based on international happenings. Thus, during the initial stages of the pandemic in Ghana, the third criteria would have been the most appropriate one to invoke.

27 World Health Organisation, ‘WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19’ (Speech, 11 March 2020) <https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> accessed 4 April 2020.

28 World Health Organisation, ‘WHO Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV) (Speech, 11 March 2020) < https://www.who.int/dg/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov)> accessed 4 April 2020.

29 PHA, s. 170.

30 The reverse happened in practice. The Minister of Health only issued an Executive Instrument, the Public Health Emergency (Coronavirus (COVID-19) Pandemic) Instrument, 2020 (E.I. 61), after the President had given instructions to do so in the 15 March address to the nation. See ‘Coronavirus: Health Minister Issues Executive Instrument Today’ (Ghanaweb, 16 March 2020) <https://mobile.ghanaweb.com/GhanaHomePage/NewsArchive/Coronavirus-Health-Minister-issues-Executive-Instrument-today-895483> accessed 5 April 2020. See also Communications Bureau (n 2).

31 Imposition of Restrictions Act, 2020 (Act 1012), s. 1 & 3.

32 An Executive Instrument (EI) is an instrument specified by an Act of Parliament as an executive instrument; or a statutory instrument which is of an administrative character or of an executive character and is not an instrument of a judicial character, or a legislative character.: Interpretation Act, 2009 (Act 792), s.1; Statutory Instruments Act 1959 (Act 52) as amended, s.5. See Baffour Osei-Akoto v. The Attorney General Supreme Court Civil Appeal No. J1/16/202 where the Supreme Court held that although an EI is a statutory instrument, it is not an order as in commands issues by members of the executive and not an order in the form of order, rule or regulation under article 11(7) of the 1992 Constitution.

33 The provision directing the President to seek the advice of a relevant person or body uses the expression ‘may’ which is to be construed as permissive and empowering according to s. 42 of the Interpretation Act, 2009 (Act 792).

34 IRA, s. 4(1).

35 IRA, s. 4(2).

36 IRA, s. 2(2).

37 Imposition of Restrictions (Coronavirus Disease (COVID-19) Pandemic) Instrument 2020. E.I. 64 came into force on 23 March 2020. E.I. 64 gave effect to the initial restrictions by the President in his address on 15 March 2020. These were basically social distancing restrictions.

38 Imposition of Restrictions (Coronavirus Disease (COVID-19) Pandemic) (No. 2) Instrument 2020. E.I. 65 came into force on 30 March 2020. E.1. 65 imposed a partial lockdown in specified areas considered as coronavirus epicentres.

39 Imposition of Restrictions (Coronavirus Disease (COVID-19) Pandemic) (No. 3) Instrument 2020. E.I. 66 came into force on 3 April 2020. E.I. 66 extended the restriction on travel to Ghana by air, land and sea by two weeks.

40 A penalty unit is currently GHS 12.00 (approximately $ 2.00 USD) under the Fines (Penalty Units) (Amendments) Instrument, 2005 (LI 1813). Therefore, the fine under the IRA ranges from GHS 12,000.00 (approximately $ 2080.00 USD) to GHS 60,000.00 ($ 10,400.00 USD)

41 IRA, s. 6.

42 Coronavirus Act 2020 (c.7). The Act expires at the end of the period of 2 years from the day on which it was passed subject to certain altering conditions: C.7, ss 89 & 90.

43 The Attorney-General, Ms. Gloria Akuffo, explained on the floor of Parliament that while she understood the concerns about the IRA’s lack of reference to coronavirus, putting those concerns in the bill was not what the bill was about. ‘The emphasis is creating a Bill for legislation that will deal not only with the risk that our country has been exposed to presently but also in the future’: Nana Konadu Agyeman, ‘Parliament Passes the Imposition of Restrictions Bill, 2020’ (GraphicOnline, 21 March 2020) <https://www.graphic.com.gh/news/politics/ghana-news-parliament-passes-the-imposition-of-restrictions-bill-2020.html> accessed 5 April 2020. See also records of parliamentary proceedings which show that all suggestions to include reference to coronavirus in the IRA were rejected: ‘Votes and Proceedings: Minutes of the Thirty-Second Sitting of the First Meeting of Parliament’ (Minutes, 20 March 2020) <https://www.parliament.gh/epanel/docs/pb/VOTES-Friday,%2020th%20March%202020.pdf#viewer.action=download> accessed 5 April 2020.

44 Viktor Mavi, ‘Limitations of and Derogations from Human Rights in International Human Rights Instruments’ (1997) 38 Acta Juridica Hungarica 107.

45 See more on the differences between ‘ordinary’ restrictions and ‘extraordinary’ restrictions of human rights in Office of the High Commissioner for Human Rights & International Bar Association, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer (Professional Training Series No. 9, United Nations Publications 2002).

46 Oren Gross and Fionnuala Ni Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006). Viktor Mavi (n 44).

47 Gross and Ni Aoláin (n 46).

48 Paige Tapp, ‘To Derogate or not to Derogate, that is the Question: A Comparison of Derogation Provisions, Alternative Mechanism and Their Implications for Human Rights’ (2019) International Immersion Program Papers, University of Chicago Law School <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1116&context=international_immersion_program_papers> accessed 28 May 2020.

49 IRA, s.1.

50 Akwa (n 3). See also Ernest Kofi Adu, ‘Drama with Restriction Bill in Parliament’ (ModernGhana, 21 March 2020) <https://www.google.com/amp/s/www.modernghana.com/amp/news/990721/drama-with-restriction-bill-in-parliament.html> 5 April 2020.

51 ibid.

52 Akwa (n 3).

53 See Bimpong Buta v. General Legal Council [2003–2005] 1 GLR 738; Yiadom I v. Amaniapong [1981] GLR 3; Edusei (No. 2) v. Attorney-General [1998–99]; and Aduamoa II v. Twum II [2000] SCGLR 165. In these decided cases, the Supreme Court resisted invitations to pronounce on the meaning of constitutional provisions for various reasons including the fact that the issues to be determined were clothed as matters of interpretation when in fact those issues were not exclusively determinable by the Supreme Court but fell within a cause of action cognizable by any other court or tribunal of competent jurisdiction.

54 ‘Pastor Arrested for Holding Church Service in Defiance of Government’s Directives’ (Ghanaweb, 19 March 2020) <https://mobile.ghanaweb.com/GhanaHomePage/NewsArchive/Pastor-arrested-for-holding-church-service-in-defiance-of-government-s-directives-898180> accessed 5 April 2020.

55 Appiagyei-Atua (n 6).

56 Communications Bureau (n 2).

57 Emphasis added.

58 1992 Constitution, art. 31(1).

59 1992 Constitution, art. 31(2), (4) & (5).

60 Ghana ratified the ICCPR on 7 September 2000: United Nations Treaty Collection, ‘International Covenant on Civil and Political Rights’ <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en> accessed 2 April 2020.

61 Electronic Communication Act, 2008 (Act 775), ss. 99 & 100. See Appiagyei-Atua (n 6). See also Samson Anyenini, ‘Powers in Executive Instrument Unconstitutional, Illegal’ (MyJoyonline, 4 April 2020) <https://www.myjoyonline.com/news/national/powers-in-executive-instrument-unconstitutional-illegal-samson-anyenini/> accessed 6 April 2020.

62 This phrase is attributed to Thomas Jefferson: José Igreja Matos, ‘Access to Justice in Times of Judicial Lockdown’ (UNODC, 31 March 2020) <https://www.unodc.org/dohadeclaration/en/news/2020/03/access-to-justice-in-times-of-judicial-lockdown> accessed 6 April 2020.

63 1992 Constitution, art. 2(2).

64 1992 Constitution, art. 2(3).

65 1992 Constitution, art. 2(4).

66 [1997–98] 1 GLR 159.

67 Ibid 712–13. Emphasis added.

68 EPA, s. 5(3).