Constitutionalism and COVID-19 in Ghana

Kwaku Agyeman-Budu
BA, LL.B, BL (Ghana); LL.M, SJD (Fordham);
Lecturer and Head of Law Centers, Faculty of Law,
Ghana Institute of Management & Public Administration (GIMPA).

Introduction

The year 2020 is supposed to be an election year in Ghana, with its attendant political campaigning activities. Instead, 2020 in Ghana, like almost all other parts of the world, has been characterized by the COVID-19 Pandemic, which has exposed the lack of preparedness for such global outbreaks of infectious diseases. In light of the emerging uncertainties surrounding this global pandemic, as declared by the World Health Organization (WHO), States have been either quick or slow in responding to this global threat. That notwithstanding, the common theme that is evident in the responses by States all over the world, is that states of emergency, or variants thereof have been declared across the globe, with travel restrictions and total to partial lockdowns implemented in various forms. Such actions, in as much as they may be necessary to swiftly respond to and deal with the current state of affairs, have the tendency of being abused by the Executive, especially if laid down principles are ignored, side-stepped or varied without legal justification and an oversight by the Legislature and/or the Judiciary.

This paper examines the efficacy of the constitutional and legal framework for dealing with public emergencies under the Constitution of Ghana and how they can be employed in handling the COVID-19 crisis. The paper thus explores the approaches adopted by the government of Ghana in light of the COVID-19 pandemic. A major step is a review of the Imposition of Restrictions Act, 2020 (Act 1012), an Act passed specifically to address COVID-19, and the subsequent Executive Instruments, giving legal effect to the Act’s provisions. Finally, the impact of the measures adopted by the government of Ghana are also briefly reviewed to determine their consistency with principles of constitutionalism, such as the rule of law and human rights, in light of the public health emergency that COVID-19 presents and especially because of the oversight role of the Legislature and Judiciary.

Constitutional and Legal Framework for dealing with Public Emergencies in Ghana: Declaring, Terminating and Renewing a State of Emergency

Chapter 5 of the 1992 Constitution of Ghana, specifically Articles 12 to 33, is dedicated to the protection and defence of Fundamental Human Rights and Freedoms. Articles 31 and 32 deal with emergency powers. One could reasonably infer that the framers of the Constitution intended to limit the enjoyment of rights and/or impose restrictions thereof that may detract from the full enjoyment and realization of these rights in emergencies. Accordingly, the Constitution provides for the circumstances under which a state of emergency may be declared. Among them are: a natural disaster, or situations where certain acts are undertaken or threatened to be undertaken by an individual or groups of persons, which may lead to deprivation of the essentials of life, or make it necessary for measures to be taken to secure public safety, the defence of the country and the maintenance of public order, supplies, and services essential to life.

The circumstances under which a state of emergency may be declared are thus not fully enumerated by the Constitution by virtue of the use of the word “include” in Article 31(9). This means that, potential emergencies that are akin to natural disasters, as well as those situations stated therein can be considered emergencies for the purposes of the Constitution. The outbreak of COVID-19, for instance, which has been declared a global pandemic, thus qualifies as an emergency under the 1992 Constitution of Ghana. Similarly, earthquakes, tsunamis, outbreak of war etc. will also be considered as emergencies in Ghana. What the Constitution then does is to carefully balance the powers of the branches of government in the wake of such emergencies. Hence, the power to declare a state of emergency is primarily vested in the Executive i.e. the President, whilst Parliament has the oversight in terms of approving or revoking such declarations of emergencies. The Judiciary is then empowered to superintend over cases involving persons who are detained or restricted during emergencies. It is important to also note that the Emergency Powers Act, 1994 (Act 472) was enacted to give effect to Articles 31 and 32, and to provide the broad framework for the taking of measures that are reasonably justifiable in dealing with emergencies.

In terms of the power of the President to declare a state of emergency, Article 31(1) of the Constitution provides that: “The President may, acting in accordance with the advice of the Council of State, by Proclamation published in the Gazette, declare that a state of emergency exists in Ghana or in any part of Ghana for the purposes of the provisions of this Constitution.” After this is done, the President is then required to immediately place before Parliament the facts and circumstances leading to the declaration of the state of emergency. It is then up to Parliament to decide, within seventy-two (72) hours upon notification of the facts and circumstances necessitating the declaration of the emergency, whether the President’s proclamation should remain in force or should be revoked. This decision of Parliament is final, and the President is bound by it. The Constitution further provides that any declaration of a state of emergency ceases to have effect upon the expiration of seven (7) days beginning with the date of publication in the Gazette, unless before the expiration of that period Parliament approves it by a majority backed resolution.

The state of emergency once approved by Parliament by a majority is then valid for three (3) months, beginning on the date of said approval, unless Parliament specifies an earlier termination date. Parliament may also by a majority backed resolution extend its approval of the state of emergency for periods not exceeding one (1) month at a time. It is important to however note that a state of emergency only applies to that part of Ghana where an emergency exists and not necessarily the entire country; and that at any time during the pendency of a state of emergency, Parliament may by a majority backed resolution revoke the declaration of the state of emergency. The possibility of abuse and violations of rights during emergency situations is recognized and addressed by the Constitution in Article 32, captioned “Persons Detained under Emergency Law.” Here, anyone restricted or detained by a law made pursuant to a declaration of a state of emergency shall have his case reviewed by a tribunal composed of not less than three (3) Justices of the Superior Courts of Judicature, not more than ten (10) days after the commencement of the restriction or detention; and subsequently, the case may be reviewed at intervals of not more than three (3) months.

The person restricted or detained may either appear in person or by a lawyer of his choice, who may make representations on his behalf before the tribunal. The tribunal upon a review of a case involving a person who has been restricted or detained during an emergency may order his release and the payment of adequate compensation, or uphold the grounds of his restriction or detention, which must be complied with. The Constitution also provides that in every month that Parliament sits, a designated Minister of State authorized by the President must present a report to Parliament detailing the number of persons restricted or detained, and the number of cases in which the authority that ordered the restriction or detention has acted in accordance with the tribunals decisions. In addition to these constitutional requirements, the authorized Minister of State is also required to publish in the Gazette and in the national media the number and the names and addresses of the persons restricted or detained; the number of cases that have been reviewed by the tribunal; and the number of cases in which the authority that ordered the restriction or detention has acted in accordance with the tribunals decisions. The Constitution then finally provides that at the end of the emergency, all persons restricted or detained must be released forthwith.

It is interesting to note that a declaration of a state of emergency in Ghana or any part thereof has not been made in the wake of the COVID-19 Global pandemic. Hence, there has been debate in the legal academy and also amongst social commentators whether there can be an emergency without a declaration of a state of emergency as mandated under the Constitution. The path adopted by the Executive so far involves passing a new law to impose restrictions in some parts of the country that have been deemed the hotspots of COVID-19. It seems however clear that, given the nature of the pandemic, a state of emergency could have been easily declared even if it was limited to the hotspots as identified by the Government pursuant to the Constitution, and Act 472 by necessary implication. It is easy to therefore speculate that a state of emergency has not been declared probably because of the procedural safeguards embedded in every step of the way, as discussed above, and that the Executive would want to avoid such scrutiny especially in these times where decisive action is needed. However, it is very possible also that the Executive wanted to avoid the invocation of emergency powers under the Constitution and Act 472, because of the limitless power the latter seems to afford and its inherent incompatibility with the Constitution.

Limitation on Rights: Measures adopted in Ghana to deal with COVID-19

Different countries have adopted different measures in confronting and dealing with the coronavirus pandemic that has engulfed the world. Whereas states of emergency have been declared in some countries giving governments emergency power to deal head on with the situation, others have resorted to enacting “emergency legislation” as a response to the pandemic, without necessarily declaring a formal state of emergency. As has already been noted, Ghana has adopted the latter path, even though the Constitution and the Emergency Powers Act, 1994 (Act 472) provide the tools that could have been marshalled to effectively deal with the coronavirus pandemic. This has led some commentators to criticize the government’s approach as being needless and creating the possibility of abuse of rights of Ghanaians. Below is a brief exposition of the measures undertaken in Ghana to deal with the pandemic, in particular a review of the new legislation that has been adopted and other emergency powers deriving from pre-existing laws.

The Imposition of Restrictions Act, 2020 (Act 1012)

On the 21st March 2020, the President of Ghana assented to the Imposition of Restrictions Bill, thereby giving legal effect to it, in response to the COVID-19 pandemic. The Imposition of Restrictions Act is expressed to be an Act “to provide for the imposition of restrictions in accordance with paragraphs (c), (d) and (e) of clause (4) of article 21 of the Constitution, and for related matters.” It is therefore important to appreciate the nature and scope of Article 21 of the Constitution of Ghana. Article 21(1) of the Constitution deals with General Fundamental Freedoms which include: the right to free speech and expression; freedom of thought, conscience and belief; freedom of religion; freedom of assembly; freedom of association; freedom of information; and freedom of movement.

Article 21(4) of the Constitution then provides that: “Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision– … (c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons; or (d) for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, of a person who is not a citizen of Ghana; or (e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community; except so far as that provision or as the case may be, the thing done under the authority of that law is shown to be reasonably justifiable in terms of the spirit of this Constitution.”

The objective of Act 1012 is to provide for powers to impose restrictions to give effect to Article 21(4)(c), (d) and (e) of the Constitution. The President may therefore, acting in accordance with the advice of relevant persons or bodies, impose restrictions by Executive Instrument in line with the aforementioned constitutional provisions. The duration of restrictions imposed pursuant to the Act is for a period of not more than three months. The duration, depending on the exigencies of the circumstances, may however be shortened or extended for not more than one month at a time but cannot be extended for more than three months in total. Exemptions regarding the restrictions may be made in relation to persons and geographical areas by the President if he deems it expedient so to do. Finally, section 6 of the Act makes failure to comply with restrictions imposed under an Executive Instrument made pursuant to the Act, a criminal offence punishable by a fine or to a term of imprisonment not less than four years or more than ten years or to both.

On 23rd March 2020, the President of Ghana exercised the power conferred upon him by Act 1012 by issuing the Imposition of Restrictions (Coronavirus Disease (COVID-19) Pandemic) Instrument, 2020 (E.I. 64). Restrictions were thus imposed on public gatherings, and travel to Ghana. Education at all levels, involving personal contact, was also brought to a halt with the closure of all schools. The duration of these restrictions was for a period of three weeks and applicable to the entire country. Subsequently, the Imposition of Restrictions Coronavirus Disease (COVID-19) Pandemic (No. 2) Instrument, 2020 (E.I 65) was issued on 30th March 2020 to restrict the movement outside places of abode of persons within Accra, Tema, Kasoa and Kumasi for a period of two weeks, in an attempt to halt the spread of the virus. Contact tracing and mass testing were to be conducted during this period to identify, isolate and treat persons who may have contracted the virus. E.I. 65 also continued in force E.I.64, meaning that restrictions on public gatherings and travel to Ghana were maintained. There has also been the issuance of the Imposition of Restrictions Coronavirus Disease (COVID-19) Pandemic (No. 3) Instrument, 2020 (E.I 66) which further extended the restrictions on travel to Ghana for two weeks with effect from midnight on 5th April 2020.

Electronic Communications Act, 2008 (Act 775)

Act 775 entered into force on 6th January 2009 and provides for the regulation of electronic communications, to regulate broadcasting, as well as the use of the electro-magnetic spectrum and for related matters. Interestingly, section 99 of this Act deals with communications during a state of emergency. It provides that “Where a state of emergency is declared under Article 31 of the Constitution or another law, an operator of communications or mass communications systems shall give priority to requests and orders for the transmission of voice or data that the President considers necessary in the interest of national security and defence.” Clearly, this power can only be activated and resorted to when there has been an actual declaration of a state of emergency. By far, the most controversial provision of this Act, however, giving wide powers to the President, does not necessarily require there to be an emergency. Section 100 of the Act provides that: “The President may by executive instrument make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to intercept communications, provide any user information or otherwise in aid of law enforcement or national security.”

It is this provision that the Government of Ghana has relied upon in the wake of the COVID-19 pandemic ostensibly for the purposes of contact tracing, beginning 23rd March 2020. The Establishment of Emergency Communications System Instrument, 2020 (E.I. 63) thereby derives its authority from section 100 of Act 775. Network operators and communication service providers are thus by virtue of E.I. 63 to put their services at the disposal of the State for mass dissemination of information to the public in the case of emergency including a public health emergency. They are also to make available all caller and called numbers, merchant codes, roaming files and location log files to the National Communications Authority (NCA). The problem with this approach is that, indeed it may be necessary for these measures for purposes of contact tracing in the fight against the spread of COVID-19, to trace, isolate and treat persons who may have been infected as a result of contact with an infected person. However, these broad powers may very well be deployed as mass surveillance tools that could be used to violate privacy of individuals and groups in the future.

Enforcement of Emergency Regulations and Oversight

The measures adopted by the Government of Ghana so far have primarily been through the imposition of restrictions in line with the newly enacted Act 1012, as well as the exercise of power under Act 775. These have been enforced by the Executive through the deployment of the security agencies, in particular the police and the army, as well as the National Communications Authority in respect of Act 775. Bearing in mind that there has not been a declaration of a state of emergency, the following brief discussion will focus on whether the restrictions and other measures adopted accord with constitutionalism generally, in light of the COVID-19 public health emergency.

Oversight by Parliament

The Executive in Ghana, by virtue of the Imposition of Restrictions Act and other measures, has taken on a central role in the fight against the COVID-19 pandemic. However, the Legislature is still operating, and thus there remains oversight in terms of Executive action that may fall within Parliament’s oversight powers. That notwithstanding, a troubling issue that some commentators have raised, regarding the Imposition of Restrictions Act, which was enacted by Parliament, for instance, is that it has no sunset clause. Professor Appiagyei-Atua for example notes: “It is in this vein that the government has enacted Act 1012, which could have current and future implications for the enjoyment of rights in the country as it constitutes a slippery slope likely to lead to a situation where an illegality will be justified and normalized. What is even more worrying is the fact that the Act has no sunshine clause in it but is rather a permanent Act …” This is problematic in the sense that the failure to incorporate a sunset clause may lead to subsequent abuse that could affect the enjoyment of constitutionally guaranteed rights.

Oversight by the Judiciary

Fortunately, in Ghana, the operation of the Judiciary has not been suspended. What has happened in the case of the Judiciary is that, as a reaction to the pandemic and in accordance with the ban against public gatherings under the Imposition of Restrictions Act, it has taken steps including a scaling up of case management techniques to avoid large gatherings in courtrooms. Also, court cases in the cities under lockdown orders are to be adjourned until May/June 2020, whilst designated courts in the affected areas are open to deal with critical cases involving breaches arising from the restriction orders and other criminal offences; with the Supreme Court and the Court of Appeal also on standby to handle urgent cases that the Chief Justice may determine during the period of restrictions.

It is important to note that with the exception of the restrictions imposed in accordance with the Imposition of Restrictions Act that have sought to restrict the enjoyment of certain rights, human rights in general have not been suspended. This is so because it is only a declaration of a state of emergency under the Constitution and Act 472 that can lead to the suspension of most of the rights guaranteed under the Constitution; something which has not been done yet, and which in itself can be problematic as alluded to earlier. Thus, the only rights that have not been completely suspended but restrictions have been imposed on their enjoyment are: the right to education; the right to cultural life; political rights; freedom of expression; freedom of association and assembly; right to leisure; and religious rights. Also, the invocation of the powers of the President deriving from Section 100 of the Electronic Communications Act presents a problem in terms of potential abuse of the right to privacy as earlier explained. Fortunately, there has been a lawsuit pending before the courts in respect of the right to privacy.

Conclusion

In conclusion, Ghana has adopted several measures in tackling the COVID-19 global pandemic, chief among them being the enactment of new legislation to tackle the issue, and the exercise of powers under pre-existing legislation. What is clear however is that a formal state of emergency has not been declared in the wake of the pandemic, leading to debates, regarding the impact of the current situation on the 2020 elections, for instance. That notwithstanding, it seems as though the measures taken by the Government of Ghana so far have been effective in terms of reducing or slowing down the spread of the virus through its three-pronged approach of Tracing, Testing and Treatment. As a result, the restrictions on movement in the hotspots of the COVID-19 spread have been lifted as at 19th April 2020, although the ban on all public gatherings nationwide and closure of schools remain in place.