ASSESSMENT OF THE INTRODUCTION OF THE IMPOSITION OF RESTRICTIONS ACT OF GHANA, ACT 1012 INTO THE CHOKED LEGISLATION BOOKS OF GHANA by Daniel Kofi Kyere Nkrumah

The world was attacked by an unexpected enemy in December 2019 known as COVID-19. Although advised by Bill Gates (owner of Microsoft) in 2015 for the world to prepare for such an encounter, tracing the history of the world for the past centuries (1720, 1820, 1918 till date), the world had its priorities set in the wrong direction and therefore was ill-prepared to combat the pandemic which has laid its icy claws over the world currently. As it stands now, over one million (1,000,000) persons have been affected by the virus, with about ten per cent visiting their ancestors, and more than four hundred thousand (400,000) persons affected are battling for recovery. These numbers made countries affected adopt measures to address the pandemic, especially countries heavily hit by the virus such as Italy, U.K., U.S.A., France, Germany and Spain. Over here in Ghana, the horrible enemy which has been renamed by Donald Trump, as “the Chinese Virus,” arrived in the country on 13th March, 2020 after the first national speech by the President on 12th March, 2020. The virus began arresting persons in the country of which six persons were declared by the Minister of Information on 15th March as being affected thus, caused the President to speak to the country again in the evening. Significant to our discussion in this piece, is the direction given to the Attorney-General to cause to be passed an act to deal with the restrictions imposed by the President on the country. This Act indeed was passed into law and assented by the President on 21st March, 2020. It is of this Act captioned: the Imposition of Restrictions Act, (Act 1012) “ACT OF THE PARLIAMENT OF THE REPUBLIC OF GHANA ENTITLED IMPOSITION OF RESTRICTIONS ACT, 2020 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,” which has produced EI 64 and EI 65 so far, to deal with the strict imposition of restrictions in the country. Hence, it is of this Act that has called on me to write this academic piece to juxtapose Act 1012 to the already existing laws of the country which are highly capable of dealing with the said Chinese virus confronting the country, and then decide whether it was actually necessary for the Act to be passed.

 

Moving on to the body of this piece, it will be judicious of me to examine very lightly, the objectives of the act. Section one which deals with the objectives provides as follow; 1. The object of this Act is to provide for powers to impose restrictions on persons, to give effect to paragraphs (c), (d) and (e) of clause (4) of article 21 of the Constitution in the event or imminence of an emergency, disaster or similar circumstance to ensure public safety, public health and protection. Thus, it is discernable from the above that the Act covers matters of emergency, which a special Act already addresses, in line with article 31 of the Constitution. It also mentions public health and safety which Act 851 inter alia tackles. Also, it is prudent to state article 21 here since Act 1012 is said to deal with the provisions under article 21 specifically, paragraphs C, D and E of clause 4; 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 defense, 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, if 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 not to be reasonably justifiable in terms of the spirit of this Constitution.  Furthermore, sections 2 to 4 of Act 1012 describes how the President may impose restrictions and section 4 in particular states that the said imposition shall not exceed three months.  In summary of the Act, the Act simply reproduced (re-enacted) and expanded on article 21 (4) and article 31 jointly and this shall be understood below.

 

Flowing from the above Act 1012 in line with article 21 (4) and 31 of the Constitution, it is relevant to note that the significant dictions in the Act to concentrate on are: (a) emergency, (b) public health, public safety and public security, and (c) the movement of persons, all governing the imposition of restrictions. Thus, flowing from article 21 (4) supra, the simple question that comes to mind is whether there is a lacuna to be filled in the Constitution regarding the imposition of restrictions, which called for Act 1012 to be passed? The answer is simply NO, with the following Acts justifying such position. One of the reasons the government gave for the passing of act 1012 was public health AND SAFETY: the reasons the government gave for the passage of Act 1012 heavily centers on the COVID-19 meaning, it is a matter of public health as stipulated under article 21 (4) thus, specific provisions in some Acts shall be stated to justify that there are already existing legislation to tackle such foreseeable occurrences. First on the list is the INFECTIOUS DISEASES ACT, 19081(1) AN ACT to provide for the prevention of the spread of infectious and contagious diseases, for the settlement of claims for compensation and damages in connection with measures taken to prevent the spread of those diseases, for the control of diseases of a communicable nature and for related matters. In this Act, section 1 states, The Minister may, by legislative instrument, declare a disease to be a disease of an infectious or contagious nature, and on that declaration, this Act shall apply. Also, in accordance with sections 2, 3, 4, 5, 6, 7, 10 and 11, all the government had to do was to declare the Chinese virus an infectious or contagious disease in order to afford itself the leave to operate within the confines of this act. The interpretation section states that, infectious disease” includes plague, cholera, small-pox, yellow fever, and any other disease of an infectious or contagious nature which the Minister may declare as an infectious disease within the meaning of this Act; COVID-19 qualifies to fall under the definition as stipulated above. Again, the second health legislation which is very fundamental and direct to the current pandemic is the Public Health Act, Act 851. Act 851 is titled: An Act to revise and consolidate the law relating to public health to prevent disease, promote, safeguard, maintain and protect the health of humans and animals and to provide for related matters.

(1) The Minister shall, by executive instrument, declare that a disease is communicable, infectious or contagious in nature.

(2) Where an instrument is published declaring a disease as communicable, infectious or contagious the provisions of this Part shall apply.

(3) For the purposes of this Part, and of any other enactment, “communicable disease” includes a disease of a communicable, infectious or contagious nature which is declared by the Minister as a communicable disease. Section 19 provides that, “communicable disease” means an illness caused by a specific infectious agent or its toxic products which arises through transmission of that agent or its products from an infected person, animal, or inanimate reservoir to a susceptible host, either directly or indirectly through an intermediate plant or animal host, vector, or the inanimate environment; “infectious disease” means a clinically evident illness resulting from the presence of disease causing agents liable to spread quickly.

Also, in line with sections 16, 17, 169 and 170 of the same Act, it can be unequivocally concluded that there is no justification for the passage of a new Act to deal with public health so long as such health matters (communicable diseases) have been provided already by the state laws.

Continuing, in line with public safety and public security including health, Act 491 deals with the imposition of curfew where the case may be by the Minister of Interior. This is another legislation which can be used to fight against the Chinese virus. Sections 1 to 4 provide as follows:

Power to impose curfew

(1) Where the Minister responsible for the Interior considers that it is reasonably required in the interest of public defense, public safety, public health, the running of essential services or the protection of the rights and freedoms of any other persons to impose a curfew in a part of the Republic, the Minister may, by executive instrument, impose a curfew in that part only as shall be specified in the instrument.

(2) An instrument shall not be issued under subsection (1) to impose a curfew on the whole of the Republic.

(3) The Minister shall on imposing a curfew notify Parliament as soon as practicable after the imposition.

(4) A curfew shall not be imposed for a period exceeding seven days at any one time under this Act.

(5) Where a curfew is imposed by instrument made under subsection (1), a person shall not be out of doors between the hours specified in the instrument except under the authority of a written permit granted by the person specified in the instrument.

(6) An instrument imposing a curfew may exempt from its operation the persons or classes of persons specified in the instrument.

(7) An instrument imposing a curfew may authorize a person specified in the instrument to suspend the operation of the curfew in a specified area or part of a specified area.

 

The Immigration Act, Act 573 also can be used: section 51 on residual powers states: Despite anything to the contrary in this Act, the Minister may revoke or waive a visa, permit, condition of entry and any other requirement on grounds of national interest, compassionate circumstances, or (c) any other reasonable ground.

See also, Act 503 for export and import, specifically sections 12   and 13.

 

The last part of legislation to apply to the current event is the legislation governing emergency powers in totality. Article 31 of the Constitution stipulates; 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.

  • Notwithstanding any other provision of this article, where a proclamation is published under clause (1) of this article, the President shall place immediately before Parliament, the facts and circumstances leading to the declaration of the state of emergency.
  • Parliament shall, within seventy-two hours after being so notified, decide whether the proclamation should remain in force or should be revoked; and the President shall act in accordance with the decision of Parliament.
  • A declaration of a state of emergency shall cease to have effect at the expiration of a period of seven days beginning with the date of publication of the declaration, unless, before the expiration of that period, it is approved by a resolution passed for that purpose by a majority of all the members of Parliament.
  • Subject to clause (7) of this article, a declaration of a state of emergency approved by a resolution of Parliament under clause (4) of this article shall continue in force until the expiration of a period of three months beginning with the date of its being so approved or until such earlier date as many be specified in the resolution.
  • Parliament may, by resolution passed by a majority of all members of Parliament, extend its approval of the declaration for periods of not more than one month at a time.
  • Parliament may, by a resolution passed by a majority of all the members of Parliament, at any time, revoke a declaration of a state of emergency approved by Parliament under this article.
  • For the avoidance of doubt, it is hereby declared that the provisions of any enactment, other than an Act of Parliament, dealing with a state of emergency declared under clause (1) of this article shall apply only to that part of Ghana where the emergency exists.
  • The circumstances under which a state of emergency may be declared under this article include a natural disaster and any situation in which any action is taken or is immediately threatened to be taken by any person or body of persons which –
    1. is calculated or likely to deprive the community of the essentials of life; or
    2. Renders necessary the taking of measures which are required for securing the public safety, the defense of Ghana and the maintenance of public order and of supplies and services essential to the life of the community.
  • Nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent with, or in contravention of, articles 12 to 30 of this Constitution to the period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that exists during that perio

 

Thus, for the President to declare a state of emergency, it is not as demanding as compared to the passage of Act 1012. All what the President need to do from the above provisions is to situate the current pandemic facing the country under clause (9) of article 31 and act in line with clause (1) of article 31. The President shall then proceed to act in accordance with clause (2) for Parliament to see to the approval and enforcement of the declaration through the procedures stated above. One will observe that, section 4 of Act 1012 is similar to clause (5) of article 31.

 

Concluding on the entire piece, by a close and combined reading of all the legislations explicated above, one will have no conclusion to draw but to say, the Imposition of Restrictions Act, Act 1012 is fusing powers under article 21 and 31 together with other laws and as such, the act is totally insignificant and an abuse of the making of legislation and the grasping of too much powers in the hands of the President. Another very relevant conclusion which can be reached is that, article 21 (4) (e) in Act 1012 makes the Act vague, very expansive and unsubstantially directly dealing with the current pandemic fighting against the country as the government purports, thus, may lead to the vesting in the President, wide powers more than how an octopus can expand its tentacles, and may result in divesting the country of its democratic and peaceful enjoyment. Act 1012 does not have any termination duration and so the determination of such duration is vested in the President which inappropriate for the sake of democracy. Nowhere in Act 1012, will one find the powers of the President subjected to judicial review or any such checks, even the exercise of emergency powers under the Constitution is subjected to parliamentary approval and scrutiny and that is considered as the highest powers of the President and so why not Act 1012? The Act does not provide any redress or remedy to the citizenry in case the act totally infringes on their right in a way as an assault! It is very important to avoid overloading the law books of the country with legislations which does not amend or repeal the already existing legislation which are very capable to address pressing issues facing the country. In all, Ghana should not take any steps as seen from Act 1012, to revert the country in a way of a “copyright” to the days of the powerful Preventive Detention Act of 1958 (Re Akoto).

 

In all, we have seen the sudden killing of one citizen at the Ashaiman market by a military man as a result of the imposition of restriction through the Act. Other reported abuses and assaults have been reported in Greater Kumasi, all as a result of the Act and there has been no compensation package or such to the affected persons and families because the Act is silent on such package and only seems to vest greater powers to the President than what the Constitution itself envisage.

 

Finally, it should be noted however that this piece drew a significant amount of inspiration from one other write-up namely, “What is the point of the Imposition of Restrictions Bill?” By Prof. H. Kwasi Prempeh reported by George Nyavor On MyJoyOnline.com dated March 20, 2020.

 

For more information, please contact the address below

SGD

Daniel Kofi Kyere Nkrumah,

University of Ghana,

Legon 0557527592