BREACHING COVID-19 SAFETY PROTOCOLS AND THE DEGRADING SENTENCING REGIME IN GHANA By Frederick Agaaya Adongo

In this article, the author argues that the Imposition of Restrictions Act is no different from the Preventive Detention Act, which was used by the then Ghanaian government, to arrest and detain its political enemies, as witnessed in the infamous Re Akoto case. In so doing, the author gives a brief historical overview of issues of abuse of fundamental human rights and the monumental strides that saw to the promulgation of the 1992 Constitution and the guaranteeing thereunder of fundamental human rights. He further argues that the punishments issued under the Imposition of Restrictions Act amount to a violation of the right to dignity of the human person, considering the nature of the Ghanaian prison facilities. Finally, the author advocates for the imposition of non-custodial sentences where the circumstances so warrant, as opposed to what the Imposition of Restrictions Act seeks to do.

To begin with, Ghana has had a very chequered politico-legal history, coupled with many military insurrections, after the gaining of her ‘independence’ from the British Crown in March 1957. The first of these military insurgences was the overthrow of the constitutionally and democratically elected Kwame Nkrumah government in 1966 by a group of men under the nominal tag of National Liberation Council (NLC), comprised of very eminent men of the military cum police forces. This was partly the result of some alleged abuse of power by the government of the day, especially with the enactment of the Preventive Detention Act (the notorious PDA of the Nkrumah administration) which made the government unpopular. After this, not less than five other insurrections or at least attempted uprisings, took place in Ghana until we returned to constitutional rule with the coming into force of the 1992 Constitution.

In our legal history, there was a time where leaders used their power to oppress the desperate poor and their political enemies. A critical example that continuously lingers on my mind, regardless of how hard I try to let it go, is the infamous case of In Re Akoto and 7 Others [1961] 2 GLR 523 which by far is the memory verse of almost every Constitutional Law student in Ghana. Therein, the Supreme Court essentially succeeded in reducing human rights to mere privileges accorded to citizens as the President willed.

What the Supreme Court did in Re Akoto was obviously the result of the timorousness of the Supreme Court at the time. The Court, perhaps, feared the government so much so that they did everything aimed at protecting all illegalities perpetrated by the State, meanwhile in the interest of justice the courts of law are supposed to act independently and boldly without fear or favour. It is therefore a matter of extreme urgency to applaud the bold and fearless remark by Kpegah JSC in his opinion in the case of Tsatsu Tsikata (No 1) v Attorney-General (No 1) [2001-2002] SCGLR 189. He there said: “The saying that justice must be done even if the Heavens fall will be meaningless unless it is linked up with an equally important saying that the Bench is not for timorous souls.”

In outright condemnation of the judgement of the Court in Re Akoto, the Supreme Court of Ghana, speaking through Hayfron Benjamin JSC in the case of New Patriotic Party (NPP) v. Inspector-General of Police (IGP) [1993-94] 2 GLR 459, demonstrated succinctly that the judgment in Re Akoto “undermined the very fabric of that Constitution (1960 Constitution) and literally pushed aside certain principles and fundamental human and civil rights which have become the bulwark of the Constitution, 1992…”

Similarly, in the case of Amidu v. President Kuffour [2001-2002] SCGLR 86, Kpegah JSC, who is celebrated as one of the finest legal brains to have sat on the Supreme Court Bench, noted without any bit of equivocation as follows: “Every student of the Constitutional Law of Ghana might have felt, after reading the celebrated case of In Re Akoto [1961] 2 GLR 523, SC that if the decision had gone the other way, the political and constitutional development of Ghana would have been different. ‘Different’ in in the sense that respect for individual rights and the rule of law might well have been entrenched in our land, and we who now occupy this court would have had a well-beaten path before us to tread on in the discharge of our onerous responsibilities imposed upon us by the 1992 Constitution.”

What at all happened in this Re Akoto case that has attracted so many commentaries from legal academicians, including the Bench? In that case, the appellants were arrested and placed in detention on the 10th and 11th November, 1959, under an order made by the Governor-General and signed on his behalf by the Minister of the Interior under section 2 of the Preventive Detention Act, 1958 (No. 17 of 1958).  Their application to the High Court for writs of habeas corpus ad subjiciendum was refused. That formed the basis of the appeal in the case that was before the Supreme Court as then constituted. As part of their grounds of appeal were that the Preventive Detention Act, 1958, by virtue of which the appellants were detained, is 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. Learned Counsel for the appellants, Dr. J.B Danquah submitted on this issue thus: “the Preventive Detention Act, 1958, which was not passed upon a declaration of emergency or as a restriction necessary for preserving public order, morality or health, but which nevertheless placed a penal enactment in the hands of the President to discriminate against Ghanaians, namely to arrest and detain any Ghanaian and to imprison him for at least five years and thus deprive him of his freedom of speech, or of the right to move and assemble without hindrance, or of the right of access to the courts of law, constitutes a direct violation of the Constitution of the Republic of Ghana and is wholly invalid and void.

In response, disagreeing with the contention of Counsel for the appellants, Korsah CJ in delivering the judgement of the Court held that “This contention, however, is based on a misconception of the intent, purpose and effect of Article 13(1) the provisions of which are, in our view, similar to the Coronation Oath taken by the Queen of England during the Coronation Service. In the one case the President is required to make a solemn declaration, in the other the Queen is required to take a solemn oath. Neither the oath nor the declaration can be said to have statutory effect of an enactment of Parliament. The suggestion that the declaration made by the President on assumption of office constitute a ‘Bill of Rights’ in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.

Perhaps, the cause of our historical legal woes is rooted in a failure to realize that the notion of human rights constitutes, to an incalculably large extent, the foundation stone of our legal system. Throughout the ages, from at least the medieval times, through the renaissance, to our contemporary times, the concept of human rights has gained an elemental status in the works of great scholars of the law. Justice J.N.K Taylor got it perfectly right when he asserted in his article  THE SCOPE OF HUMAN RIGHTS IN GHANA [1993-95] VOL XIX RGL 84—104  that “the notion of the rights of man and the dimension of the practices which have come to be regarded as the scope and focus of these rights have been largely embedded in customary understandings which human societies have considered to be the bedrock and the fundamentals of their culture. The history of the development of these rights is also the history of the development of the notion of the rule of law.  It parallels the concept of government as it had been coloured and sustained in political organisations throughout the tortuous history of the human race.

With the commencement of the Fourth Republic and the entrenchment of fundamental human rights in the constitution, which have been insulated from executive and legislative control and manipulation, and considering also how long the Fourth Republic has lasted, one would have thought that the end to our political and legal woes are has finally dawned upon us. I thought so too until the outbreak of COVID-19 exposed the mischief shrouded in the Fourth Republic. In fact, prior to today, if anyone had told me that in the Fourth Republic the State would ever resort to the infringement of the rights of man with such an impeccable pedigree, I probably would have disagreed with him and perhaps regarded him as a hostis humani generis (enemy of the human race). Today, contrary to what I had naively thought, so many atrocities are being committed against ordinary citizens with reckless abandon by the State. For the first time, I am beginning to appreciate the old adage that history repeats itself. The prevailing situation in the days of Re Akoto is repeating itself in the Fourth Republic even if through a piecemeal and subtle process.

Everything appeared to have been moving smoothly in our country until the outbreak of the life-threatening global pandemic, the corona virus (also known as COVID 19). The virus has stultified the economic growth of many world economies, including even the world super powers like the United States of America and China, where the virus emanated from. The Ghanaian economy has also been hit hard by the outbreak of the corona virus pandemic. Apart from the damage caused to the Ghanaian economy by the corona virus, it has also brought to the fore the mischievous capabilities of those who wield political power even in the Fourth Republic.

After Ghana had recorded a few cases of the virus, Parliament swiftly passed the Imposition of Restrictions Act, 2020 (Act 1012) which empowered the President under section 2 of the Act to impose certain restrictions under certain circumstances.  This Act has been subjected to stiff criticism by very eminent law scholars, including my very own Professor Kwadwo Appiagyei-Atua, a human rights expert, who prior to the passage of the Act (at the time the Bill was being considered in Parliament) guarded against the passage of it in a very seminal article titled Executive Faux Pas With the Imposition of Restrictions Bill, 2020 because of its effects on fundamental human rights.

In exercise of the power conferred on him under section 2(1) of Act 1012, the President of the Republic by Executive Instrument (E.I 164) made the wearing of face masks mandatory. In his own words, the President remarked that it is now mandatory to “wear face masks, face shields, or any other face covering that covers his or her nose and mouth completely when the person is in public or leaving or returning to his place of abode.” In the first place, it must be noted that the Imposition of Restrictions Act and the subsequent criminalization of the not wearing of face masks by the President is in excess of the powers conferred on Parliament under article 21(4)(c)(d) and (e) of the 1992 Constitution, based upon which the Act was passed. As Prof. Atua noted, “the areas of limitations or restrictions in article 21(4)(c) and (d)… cover limitations to the enjoyment of freedom of movement only. Yet, the areas where the legislation is being sought to impose restrictions are broader and cover many other rights, both civil and political and economic, social and cultural.”

What the criminalization of a failure to wear a face mask means is provided in section 6 of Act 1012: “A person who fails to comply with the restrictions imposed under the Executive Instrument issued under subsection 1 pf Section 2 commits an offence and is liable on summary conviction to a fine of not less than 1,000 penalty units  and not more than 5,000 penalty units or to a term of imprisonment not less than four years and not more than ten years or to both.”  The equivalent of one penalty unit in Ghana today is GHC 12.00. This means that anyone found guilty of this offence shall either be required to pay a minimum fine of GHC 12,000.00 or a maximum of GHC 60,000.00 or in the alternative be sentenced to imprisonment for a period of not less than four years and not more than ten years or even to both the fine and the imprisonment.

Worst still, it is not as if every Ghanaian has been supplied by the State with face masks and face shields. And in making laws of this nature, we should not operate on the assumption that everyone can afford a face mask, however cheap it may appear to be. Anyone who thinks that way is perhaps oblivious of the Ghanaian situation where there are some people who, for more than a week, may not get hold of GHC 3.00. If such a person gets GHC 3.00, will he be willing to use that amount to buy a mask instead of buying salt to enable him prepare a meal for himself? Permit me, even if I am committing the fallacy of argumentum ad misericordiam (appeal to pity), but that is the situation at hand. Laws which are made for the ‘guidance of intelligent beings’, should not be made, oblivious of the human situation, provided we are aligning ourselves to the view of John Austin expressed in his book The Province of Jurisprudence Determined that law is a “rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

Now, with the passage of the Imposition of Restrictions Act, one major problem that one can find with it is that the penalty terms are so harsh such that it leans generally towards the imprisonment of those in who flout the law. The draconian and Machiavellian language in which the penalty section of the Act was couched makes one wonder what at all was the motivation for such and what the State sought to achieve with that. Many of those who would be found guilty of this offence and fall squarely within the punitive terms of the Act are the poor ordinary citizens. Considering the amount that one may be sentenced to pay, most likely many would only end up behind bars, leading to yet another problem that is as old as Adam – the congestion of prisons (I shall revert to this problem later in this article). Is this what we should seek to achieve with our legislation? Is it proper to do that? Will a reasonable hypothetical person in the position of the draftsman of the Act have done that? These are some of the questions that refuse to leave my mind and may continue to haunt me for length of days unending.

In any case, by way of a comparative analysis, we should realize that the celebrated Re Akoto case referred to supra which can now be regarded conveniently as bad law was also based on ‘legal’ grounds, the Preventive Detention Act, which was also passed by a duly constituted Parliament. Nevertheless, it was the propriety of that law that was in question. Similarly, the Imposition of Restrictions Act is also law passed by Parliament, yet it is the propriety of that law that we should put to the test. If I may ask, of what benefit is it to the State to commit its citizens behind bars or in the alternative impose unbearable penalty terms on them if the offence they are found guilty of is a ‘minor’ one? It rather imposes a huge financial burden on the State since prisoners would be fed and their basic needs provided for by the State.

What even constitutes a great cause of worry and makes one wonder whether Act 1012 was ill-intentioned and designedly couched to harass a section of the populace is that, whereas some flout the protocols as provided for in the Act and E.I 164 and go ‘unnoticed’, others do same and apologize and go scot free like unblemished lambs. Yet still, the unlucky few who are probably children of a lesser god get punished by the law and are put behind bars or being made to pay unreasonable amounts which only has the tendency of leading them to prison for failure to pay those amounts. Meanwhile the constitution outrightly forbids discrimination in article 17 of the 1992 Constitution which provides partly as follows:

(1) All persons shall be equal before the law.

(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status. 

(3) For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

In fact, in the case of Amidu v. President Kuffour referred to supra, Adjabeng JSC in his opinion stated thus: “it must be noted that our 1992 Constitution has firmly established the rule of law in this country. The Constitution makes it clear that everybody in this country, including His Excellency, the President, is under the Constitution and the law. This is clearly what we mean by the rule of law… and I have no doubt that adherence to this policy will indeed bring about real democracy… and therefore real freedom, justice and prosperity.

Quite clearly, the Imposition of Restrictions Act and its subsidiary legislation discriminate against a section of the populace in their application, although I am hesitant to purport to come to a conclusion on the grounds used by the State to discriminate. Quite glaringly, we are witnessing in our own way in this country what George Orwell metaphorically described in his book Animal Farm as follows: “All animals are equal, but some animals are more equal than others.” This is very dangerous for a growing democracy like ours which is as fragile as the shell of an egg and needed to be guarded jealously in much the same way as a young man like Mawuli would guard his girlfriend from the reach of ‘unscrupulous’ persons like Leo. I am beginning to think, in light of present happenings in this country, that the State has made it clear to us that indeed the notion of equality before the law is a mere theoretical and artificial conjecture with no practical significance.

Back to the crux of the matter, that is the penalty imposed by Act 1012, let me reassert that it was uncalled for. As a matter of fact, the penalty imposed by the Act, taking into account the state of our prison facilities, amounts to a complete violation of the right to dignity of those already in prison and those who will be sentenced to imprisonment for flouting the restrictions imposed by the President. The 1992 Constitution has enshrined in article 15(1) the right to dignity in the following terms:

  • The dignity of all persons shall be inviolable.

(2) No person shall, whether or not he is arrested, restricted or retained, be subjected to –

(a) torture or other cruel, inhuman or degrading treatment or punishment; (b)

(b) any other condition that detracts or is likely to detract from his dignity and worth as a human being.

Further, article 35(4) of the Constitution enjoins the State to “cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person.” All these provisions sought to affirm the unrelenting commitment to the inherent dignity of all human beings in the country. Hence, a violation of any of the fundamental human rights has as its necessary corollary the diminishing of the dignity of the human person.

Contentiously, the dignity of man is the most basic of his rights, because his very personhood is dependent on this dignity that he has. This postulation is in absolute affirmation of the view expressed by the angelic Doctor St. Thomas Aquinas in his breathtaking treatise, The Summa Theologica (Summary of Theology) wherein he argued that the personhood of an individual is predicated on his dignity. Hence, one is a person because one has dignity. Accordingly, once a person’s dignity is denied him, his personhood is essentially denied him. In Thomas Aquinas’ exact words, he indicated thus: “Thence by some the definition of person is given as “hypostasis distinct by reason of dignity.” And because subsistence in a rational nature is of high dignity, therefore every individual of the rational nature is called a ‘person.’” Elsewhere he wrote: “the name ‘person’ signifies an individual substance as having a propriety which is a sign of dignity.”

The right to dignity has gained widespread international acceptance in international human rights law. The right of all persons to dignity has been guaranteed under many international human rights treaties, notably the United Nations Charter and the Universal Declaration on Human Rights. The framers of the 1992 Constitution, in order not to derogate from international best practice, included elaborate provisions on the right to dignity as seen in article 15 produced above. In the celebrated Ghanaian case of Martin Kpebu v. Attorney General (J1/13/2015) [2016] GHASC 15 (05 May 2016), a case that necessitates a mandatory call to obeisance and a resounding alleluia that equals to that which is heard at Eastertide, from every advocate of the rule of law, Benin JSC stressed the importance of this right to dignity in the following terms:

Clause 1 of Article 15 states the inviolability of the right to human dignity. This right has been stressed and given prominence in matters of governance at least from the time of Roman civilization. Before then, religious theologians had insisted on it basing their arguments on the biblical revelation that God created man in his own image. There is no need to trace its history in this short piece. Suffice it to say that, like the presumption of innocence, it has gained worldwide acceptance. The inviolability of the human dignity is a core human right which must be respected and protected. The UN Charter recognizes it and so does the UN Declaration on Human Rights in its preamble which states that the ‘recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’

The reason why the punishments issued under Act 1012 amount to a violation of the right to dignity lies in the manner in which our prisons are congested and yet still people will be committed to prison for an unreasonable number of years for just ‘minor’ offences. A clear reading of article 15, particularly clause 2 thereof, reveals that the dignity of even prisoners cannot be denied them. Obviously, where a person is kept behind bars in an unnecessarily congested area, where his comfort is denied him, such an inhumane treatment certainly detracts from his worth as a human being. My eyes were filled to the brim with tears on my very first visit (and of course the only visit) to the Nsawam prisons, upon seeing the degrading conditions in the prison facilities. Some prisoners decried the inhumane manner in which they were treated. Some lay on the bare floor. In summary, it was such a disgusting experience that I will never forget for the rest of my life. Human dignity, though a metaphysical concept not amenable to easy definition, can be said to be the recognition and acceptance that every human possesses some special value that is intrinsic, inherent and incidental to his humanity and must be preserved and respected.

I accept that it is trite learning that rights are not absolute but are subject to some reasonable limitations. As such, article 12 of the constitution while guaranteeing rights subjects the enjoyment of these rights to “respect for the rights and freedoms of others and for the public interest.” Accordingly, article 14 which guarantees the right to liberty provides some limitations to the enjoyment of this right by an individual, including where it is required “in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted.” Therefore, whereas the constitution recognizes punishment by imprisonment, when a person is imprisoned, it is only his liberty that is to be restricted. His other rights cannot be derogated from. There are ample authorities to support this contention. For instance, in the Supreme Court decision in the consolidated cases of Ahumah Ocansey v. Electoral Commission and Centre for Huma Rights and Civil Liberties (CHURCIL) v. Attorney General and Electoral Commission, delivered on 23rd March, 2010, the court held that even prisoners have the right to vote, and there is no other exception to this right save those who are below eighteen years of age and those who are of unsound mind. Equally, no exception to the enjoyment of the fundamental right to dignity has been provided for in the constitution, either directly or impliedly.

In the aforementioned consolidated cases, learned counsel for the first plaintiff urged on the court thus: “the lawful punishment of persons is not tantamount to psychological annihilation, nor political depersonisation; that denying prisoners the right to vote deprives the nation of a vital plank in its democratic machinery and compromises the integrity of our democracy.” In a similar way, the imprisonment of persons has as its purpose the curtailment of their liberties, but their other rights remain intact, including the right to dignity. So, if a person who is convicted to a number of years of imprisonment is subjected to any form of inhumane treatment, such as where the prison condition is not convenient because of overcrowding, that alone detracts from his worth as a human being.

Does the foregoing analysis presuppose that I am kicking against punishment altogether? Certainly not! Punishments are essential in regulating human conduct. I do not want to bore you so much with the various justifications of punishment based on the utilitarian and retributive perspectives.

Nonetheless, on the importance of laws and punishment for breach of same, let us consider what St. Thomas Aquinas had to say in his Summa Theologica. Quoting St. Isidore of Seville, he said: “Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm.”

Moving on, in his own words Aquinas noted: “man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training. Thus we observe that man is helped by industry in his necessities, for instance, in food and clothing. Certain beginnings of these he has from nature, viz. his reason and his hands; but he has not the full complement, as other animals have, to whom nature has given sufficiency of clothing and food. Now it is difficult to see how man could suffice for himself in the matter of this training: since the perfection of virtue consists chiefly in withdrawing man from undue pleasures, to which above all man is inclined, and especially the young, who are more capable of being trained. Consequently a man needs to receive this training from another, whereby to arrive at the perfection of virtue. And as to those young people who are inclined to acts of virtue, by their good natural disposition, or by custom, or rather by the gift of God, paternal training suffices, which is by admonitions. But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws.”

Therefore, all that I am advocating for is rather the imposition of some other punishments which are more commensurate with the nature of the offence and which will further enhance the dignity of those who breach the law and not the altogether avoidance of punishment. In most developed democracies, there has been a swing of the pendulum towards the implementation of a non-custodial sentencing regime. Although the Ghanaian laws on non-custodial sentencing are not clear and elaborate as they ought to have been, there are authorities suggesting that our legal system does not after all advocate for just custodial sentences. For instance, section 294 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) on the different types of punishments that could be inflicted provides as follows:

“The following punishments may be inflicted for offences: 

(a) death; 

(b) imprisonment; 

(c) detention; 

(d) fine; 

(e) payment of compensation; 

(f) liability to police supervision.”

Article 299(1) of Act 30 also provides:

The Court before which a person is convicted of an offence other than an offence for which the sentence is fixed by law may, according to the circumstances of the case, order that person in place of or in addition to any other punishment, to enter into recognisance, with or without sureties, for keeping the peace and to be of good behaviour.”

Finally, section 73 of the Courts Act, 1993 (Act 459) provides as follows:

Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.”

All these provisions prove that Ghanaian law after all recognizes other forms of punishment other than custodial (imprisonment). However, our problem is that the country’s principal criminal legislation, the Criminal and Other Offences Act, 1960 (Act 29) and other crime-creating legislation, including E.I 164 and its enabling Act 1012, lean generally towards custodial punishments which is manifestly absurd.

At least, Act 1012 could have made provisions for any other form of punishment other than imprisonment. Yes, it is true that there is an option of a fine, yet that option of a fine is too outrageous and can be said to have been added there to cover up the mischief in Act 1012 which was framed to restrict the rights of citizens in an unreasonable manner. There are numerous out-of-prison sentences that can achieve the purpose of punishment. In fact, it is my opinion that custodial punishments are uncalled for, except in cases where the continued presence in society of certain categories of criminals imposes a serious threat to the lives of members of society. Examples of such criminals are armed robbers, thieves, murderers, among others, who, unless their freedom of movement is restricted, would probably continuously perpetrate those offences. In any of such circumstances, therefore, imprisonment will ensure that “innocence might be safeguarded”, in the words of St. Isidore of Seville, referred to above. It is, therefore, my humble suggestion that it is not too late to rectify the mischief hidden in Act 1012. Parliament is, thus, called upon to consider revising the Imposition of Restrictions Act in such fashion as to make provision for non-custodial sentences. This will further advance human dignity and the rule of law.