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Contemporary Constitutional Issues in Our Multiparty Democracy : 22Nd Fourth Annual Re Akoto and Seven Others Memorial Lecture: 2009 ANNUAL LAW WEEK CELEBRATION GHANA SCHOOL OF LAW 20th-26th April, 2009 Contemporary Constitutional Issues in our Multiparty Democracy By Dr. Raymond Akongburo ATUGUBA, Lecturer, Faculty of Law, University of Ghana 22nd April, 2009, British Council Hall, Accra Contemporary Constitutional Issues in our Multiparty Democracy © 2009 Ghana School of Law / Friedrich-Ebert-Stiftung, Ghana All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the permission of the publishers. Any person who does any unauthorised act in relation to this book will be liable to criminal prosecution and claims for damages. ISBN: 9988-572-92-1 Contemporary Constitutional Issues in our Multiparty Democracy FOREWORD Dr. Raymond Atuguba held the below published lecture at the “Re Akoto and Seven Others Memorial Lecture” jointly organised by the Ghana School of Law and the Friedrich-Ebert-Stiftung on April 22nd 2009 at the British Council Hall in Accra. The Ghana School of Law organises this Lecture annually since 2006. to commemorate this significant case. The facts of the case of Re Akoto1 were beautifully narrated in the first Re Akoto Lecture2 by the Late Honourable Peter Ala Adjetey, the second Speaker of the Fourth Republican Parliament and a great and distinguished lawyer of his time, who served as the President of the Ghana Bar Associations on several occasions. “The Appellants in the case, namely, Baffour Osei Akoto, Senior Linguist to the Asantehene, Peter Alex Danso alias Kwaku Danso, lorry driver, Osei Assibey Mensah, storekeeper, Nana Antwi Kusi Busiako alias John Mensah “Nkofohene” of Kumasi, Joseph Kojo Antwi-Kusi alias Anane Antwi-Kusi, Benjamin Kweku Owusu, produce manager, Andrew Kojo Edusei, auctioneer and letter writer, Alidu Kramo, transport owner, all of Kumasi, Ashanti and one other whose name does not appear in the Report, were arrested and placed in detention on the 10th and 11th days of November, 1959 under the authority of an order made by the Governor-General of Ghana and signed on his behalf by the Minister of the Interior, Mr. A. E. Inkumsah, dated the 10th day of November 1959 and made under section 2 of the Preventive Detention Act, 1953 (No.17 of 1958). The order said that “the Governor-General is satisfied that this Order is necessary to prevent the persons in the Schedule to this Order acting in a manner prejudicial to the security of the State”. The persons named in the Schedule to the order were, of course, the Appellants, Baffour Osei Yaw Akoto and his compatriots. The Appellants applied to the High Court for writs of habeas corpus but their applications were refused. They then appealed to the old Supreme Court constituted by Korsah, CJ, and Van Lare and Akiwumi, JJSC. They were represented by no less a lawyer than Dr. Joseph Boakye Danquah. He was described by the well-known Watson Commission as the “doyen of Gold Coast politics”. The Commission was appointed to enquire into the 1Re Akoto [1961] GLR 523, S.C and Re Akoto 2 G & G (Gyandoh & Griffiths), 160. 2 Peter Ala Adjetey, “Re Akoto, Its Impact on Constitutional Law Development in Ghana”, Keynote address delivered at the 2006 Annual Law Week celebrations of the Students Representative Council of the Ghana School of Law, (March 2006). 1 Contemporary Constitutional Issues in our Multiparty Democracy disturbances that took place in the Gold Coast on the 28th and 29th days of February, 1948, following the shooting of Sergeant Adjetey and other ex- servicemen at the Osu Cross Roads on 28th February. The appeal was resisted by the then Attorney-General of Ghana, Mr. Geoffrey Bing, with whom appeared the late Mr. A.N.E Amissah. Dr. Danquah argued 7 grounds of appeal. One particular ground of appeal which was argued by Dr. Danquah and rejected by the court was that the Preventive Detention Act, 1958, under the authority of which the Appellants were detained was “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 fundamental principles made by the President on assumption of office.” A second and equally important ground of appeal was that by virtue of the Habeas Corpus Act, 1816, which was a statute of general application and therefore in force in Ghana at the time the court was required or had a duty to inquire into the truth or otherwise of the grounds upon which the Governor-General said he was satisfied that the order he had made was necessary to prevent the Appellants from acting in a manner prejudicial to the security of the State. In an unanimous judgment read by Korsah CJ on behalf of the court, the appeals were dismissed on all the grounds argued.” Re Akoto provided a very fine opportunity for our courts to enforce the fundamental rights of Ghanaians. Indeed, the first serious attempt at giving express provision to human rights in Ghana's Constitution was in article 13 (1) of the 1960 Constitution, which was an issue in the case. Article 13 (1) of the 1960 Constitution provided that: The President shall assume office by taking an oath in the following form ... I … solemnly swear … That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion or speech, of the right to move and assemble without hindrance or of the right of access to courts of law. That no person should be deprived of his property save where the public interest so requires and the law so provides (original emphasis). The former Supreme Court, however, regrettably held that these declarations were not enforceable or justiciable but were mere declarations of goals to which the government and the President would aspire. As the late Peter Ala Adjetey noted, 2 Contemporary Constitutional Issues in our Multiparty Democracy “the result was that the Appellants and many others in Ghana who were detained under similar orders remained in prison from the dates of their arrests and detentions in or about 1959 until they were released only after the coup d'etat of 24th February, 1966, after some of them had been in prison for some 8 years without trial. The effect of the judgment was that Ghanaians were left without any protection whatsoever against arrest and detention for whatever reason as long as the head of state could declare that such arrest and detention was necessary to prevent the persons concerned from acting in a manner prejudicial to the safety or security of the State.”3 After the bitter decision of Re Akoto endorsing human rights abuses of that time, the good people of Ghana decided to entrench human rights in their Constitutions beginning with the 1969 Constitution. Today, Chapter 5 of the 1992 Constitution does not only make elaborate provisions for the fundamental rights of the people, but also provides for an effective and efficient mechanism for their enforcement.4 The Supreme Court has also progressed in a positive direction since Re Akoto. In the recent case of Ghana Lotto Operators Association v. National Lottery Authority [2007-2008] SCGLR 1089, the court held that a presumption of justiciability in respect of Chapter 6 of the 1992 Constitution, dealing with the Directive Principles of State Policy, would strengthen the legal status of Economic, Social and Cultural rights (ESC Human Rights) in Ghanaian jurisdiction. The court reasoned that the strengthening of the enforcement of fundamental human rights is a core value of the current legal and constitutional system. A presumption of justiciability in relation to the provisions of Chapter 6, therefore, provides a better framework for the analysis and protection of ESC Rights. In this regard, the court observed that the economic objectives set out in article 36 of the 1992 Constitution are legally binding and are not merely a matter of conscience for successive governments of our land. Ghana Lotto Operators Association v. National Lottery Authority is a marked departure from the bitter experience of Re Akoto. It is hoped that the Supreme Court will continue in this positive direction. 3Ibid 4 Awuni v. West African Examination Council [2003 -2004] 1 SCGLR 471 3 Contemporary Constitutional Issues in our Multiparty Democracy Contemporary Constitutional Issues in our Multiparty Democracy Your Lordship the Chairman, Prof. Justice Dr. S.K. Date-Bah; Your Lordships present; Director and Lecturers of the Ghana School of Law; Invited Guests; My dear students; Ladies and Gentlemen of the Press; Ladies and Gentlemen. I cannot pretend that I am happy to deliver this year's Re Akoto Lecture. I am not. I am growing increasingly suspicious of the many institutions which contact me to deliver lectures, often at short notice, provide no research funding to prepare for the lecture, harass me with telephone calls until I agree to deliver the lecture, and reward me with a bottle of coke after the lecture. These institutions are also often not interested in assisting me develop the lecture into a more resolute paper that can be valuable to researchers, consultants and policy makers. My dear friends and students, this attack is primarily not aimed at you. It is aimed more at my friends in the media who call me up sometimes at midnight and at 5:30am to seek free legal advice, counselling, opinions or commentary on some legal issue or other; and they do not even add the customary bottle of coke afterwards.
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