THE P.D.A- A RATHER PROACTIVE SECURITY MECHANISM OR A VIOLATION OF THE 1960 CONSTITUTION? By Inkum Isaac Arko.

In this article, I would like to ink the recent kidnappings and security threats afoot in my beloved country, Ghana. As a young citizen, I am empowered by paragraphs (g) and (h) of Article 41 of the 1992 Constitution of the Republic of Ghana to do my best for this country. In doing this, I quote paragraphs (g) and (h) of Article 41.

 

Duties of a Citizen

41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly, it shall be the duty of every citizen :

(g). to contribute to the well-being of the community where that citizen lives;

(h). to defend Ghana and render national service where necessary.

The famous song, often sung by patriots has some inspiring lines:

“Arise Ghana youth for your country, the nation demands your devotion. We are all involved.”

When we sit unconcerned about security matters in this community of Ghana, is it not obvious that when there is fire on the mountain, we will all go down? Perhaps, the privileged in this ‘community’ will find means to bolt. But that will not solve the problem.

Recent kidnappings in Ghana have resulted in the hue and cry of citizens. The question on the lips of concerned citizens is: what proactive security mechanism has Government instituted to arrest the problem and boost confidence in obviously worried citizens? So far, we have heard official statements from government officials. On Tuesday, 11th June 2019, Ghanaweb carried out a news item, reporting under the headline, “Ghana remains safe- Government.”

The content of the reportage stated: “Government has indicated that Ghana remains safe despite recent reports of security threats. According to Government in a statement signed by the Information Minister, Kojo Oppong Nkrumah, National Security Officials held a meeting on Monday, June 10, 2019 at the Jubilee House, Accra. The meeting, it said was to examine recent travel advisories about Ghana and intelligence reports on Ghana’s security situation. The United Kingdom, Canada, and Australia have warned their citizens travelling to Ghana about security threats in the country including kidnappings, terrorism and violent crimes.”

It said: “The meeting concluded that there is no actionable intelligence or an imminent threat to Ghana.”

We cannot conclude yet the security discussion, snoozing in our comfortable abodes, that Government officials have assured us that Ghana is safe. The discussion must go on, this time, qquestioning whether Government has found the need to institute a proactive security mechanism to deal with not just the threats of terrorism but recent kidnappings in the country. As I write, there is none. The test of governance in every generation is seen when a particular leadership is faced with a peculiar problem and decides to be proactive or reactive to the problem.

In 1958, just a year after independence, this same country, Ghana, suffered threats of terrorism, and violence. The situation caused uneasiness in the country and something needed to be done to curb the menace. The leader, the Prime Minister, Dr Kwame Nkrumah on 14th July, 1958 summoned himself into the House of Assembly, now Parliament House,to move a Bill to be read the second time. This was the Preventive Detention Bill. It was a proactive security mechanism to deal with the perpetuating conduct of violence and insecurity in independent Ghana.

Let’s consider a snippet of the Prime Minister’s speech that day: It is therefore of value, I consider that I should state quite clearly the reasons which impel the Government to introduce this Bill. I hope that in so doing, I may be able to explain to those who sympathise with us and try to understand our problems what are the difficulties which we face not only in Ghana but almost every other state which has gained its independence since the Second World War.”

The Prime Minister went on to belabor his point: “Permit me Mr Speaker to give an example of the sort of security problem with which my Government have had to contend. The Minister of Information and Broadcasting has already made a public statement about the order for 1,000 tons of grenades. Our security investigations show that this was a serious transaction. Working drawings of the grenades had been produced and the matter had gone even to the length of enquiries for shipping space. We hope that further enquiries will reveal the organisation behind the placing of the order.”

This was one of the many security threats on independent Ghana which compelled the leadership of that regime to institute a proactive security mechanism called the Preventive Detention Bill. Series of arguments were made in the House of Assembly in 1958 regarding the Bill. Some members of parliament were not in favour of it.

According to Mr J. A. Braimah, (U.P- Gonja East): “by introducing this Preventive Detention Bill into this House, the Government are behaving as if the British had not left behind in this country a deep respect for individual rights and an understanding of the practical mechanics of democratic law and government. Are the Government telling us that there is no longer going to be the rule of law in this country? This three paged Bill, containing only 5 clauses and with only 72 lines, if allowed to be passed into law can deprive any person who is a citizen of Ghana of his liberty for a period of 5 years or 1,825 days.”

Yet, the Prime Minister had early on stated in his speech that: “First, the only persons who need to be alarmed about it are those who are either attempting to organise violence, terrorism or civil war or who are acting as Fifth Columnist for some foreign power interested in subversion in Ghana…..thirdly, the Government are determined to preserve in Ghana both Justice and Freedom.”

The political polemic and its legal analysis continued in the House for three days. When the debate ended and the House was counted, the Ayes were 49, Noes were 12 and finally, the Preventive Detention Bill was passed into law. But this soon- turned- bill- into- Act was quickly dumped into the abyss of legality. It functioned as an Act meant to deal with acts of violence, terrorism in Ghana which was fashioned to disturb the security of the taste. Albeit it had been refuted and condemned by some 12 members of the 1958 Parliament, it was never a matter for the courts to quash or uphold until 1961 when the famous Re Akoto case emerged.

In order not to bore law students, who already know the facts, I descend into the legal questions raised by counsel for the detainees, J. B Danquah.

When the matter came before the High Court, where counsel applied for a writ of habeas corpus ad subjiciendum, it was refused by Sarkodee J, as he then was. Dr Danquah was not satisfied with the ruling and decided to stretch for justice. He appealed against the refusal of the habeas corpus at the Supreme Court. Before the Supreme Court, his outstanding plea was that: the Preventive Detention Act, 1958 (No 17 of 1958) was ultra vires the 1960 Constitution. He argued that the Act was directly in violation of article 13(1) of the 1960 Constitution.

This was cited in counsel’s seven main points, itemised as number 6: The Prevention 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.”

The Supreme Court led by Korsah C.J, Van Lare and Akiwumi, JJ.S.C dealt with the matter. According to the court, Article 13(1) “was similar to the Coronation Oath taken by the Queen of England during the coronation service and neither the oath nor the declaration can be said to have a statutory effect of an enactment of Parliament.”

The court disagreed with counsel for the detainees that article 13(1) was justiceable. In his submissions, Geoffrey Bing, the Attorney General, stated: “If Article 13 is compared with other parts of the constitution, it will be immediately noticed that it is entirely differently expressed. In the first place, it is in no sense part of the general law; it is in the form of a personal declaration to be made by each individual President. In other parts of constitution, where a duty is imposed the word “shall” is used. Throughout the declaration the word used is “should”. This shows that the declaration represents the goal which every President must pledge himself to attempt to achieve. It does not represent a legal requirement which can be enforced by the courts.”

The Supreme Court agreed with Bing’s assertion. At the hearing, Chief Justice Korsah came to the same conclusion- “It will be observed that Article 13(1) is in the form of a personal declaration by the President and is in no way part of the General Law of Ghana. In the other parts of the constitution where a duty is imposed the word “shall” is used, but throughout the declaration the word used is “should”. In our view, the declaration merely represents the goal which every President must pledge himself to attempt to achieve. It does not represent a legal requirement which can be enforced by the courts.”

Article 13(1) of the 1960 Constitution, according to the Supreme Court ruling, was not justiceable or legally wired to clamp down the Preventive Detention Act. In any case, the court reasoned that by Article 40 of the Republican Constitution of 1960, the laws of Ghana constituted, inter alia, enactments which were in force immediately before the coming into operation of the 1960 Constitution and once the Preventive Detention Act was a law in Ghana before the coming into force of that constitution, it could not have been said to be ultra vires the 1960 Constitution.

I recall my dual question: Was P.D.A a rather proactive security mechanism or a violation of the 1960 Constitution?

From the analysis made supra, the second part of the question can be easily answered. P.D.A was not a violation of the 1960 Constitution. The contention was between Article 13(1) of the 1960 Constitution and the Act itself. But permit me to trace the provenance of Article 13, its making and its intention.

Many years after 1961, Stephan Skupien, a keen constitutional researcher had written to Francis Benion, who was very instrumental in the drafting of the 1960 Constitution of Ghana. Skupien asked Benion a question:

Skupein: From which moment on were you involved in the process?

Response from Benion: The first I knew of CPP thinking and planning, led by Nkrumah was when I received from the Attorney General, Geoffrey Bing instructions for the drafting of the constitution on one side of a single sheet of paper. The only firm instruction was that there should not be an operative, enforceable Bill of Rights. The AG told me to provide a substitute. I gathered that this should have as far as possible the appearance of a Bill of Rights but should on no account be justiceable as such (that it should not be enforceable by the courts). I accordingly produced what ended up as Article 13 (Declaration of Fundamental Principles). source- F A R Francis Benion/ www.FrancisBenion.com 2013.

From the above, one could appreciate the original intention of the makers of the 1960 Republican Constitution, that it was not purposed to have any legal authority. That means, in the courts, Article 13 of the 1960 Constitution had no legal muscle to destroy P.D.A or any Act passed by the Parliament of 1958.

I now tackle the final question, which is the first part of the dual question: Was P.D.A a rather proactive security mechanism?

I have painstakingly used a lot of ink in explaining what happened in the House of Assembly in July 1958 when the Prime Minister addressed the House concerning the Bill. In his speech, all that the Prime Minister was emphasising was that, P.D.A was not going to wait for an incident which was purposed to rob the security of the State to happen before leadership acted; rather, P.D.A was to be proactive and fish out those who were attempting, plotting, organising and planning to cause violence or destruction and nip their acts so that their ill desired results will not materialize. That is the “proactiveness” I am referring to- that sort of leadership which does not wait for damage, disaster to happen, but instead happens to things. P.D.A was such a proactive security mechanism.

When the Bill was debated in the House of Assembly in July 1958, one of the main issues boarded on why the Government of the day wanted to pass an Act like P.D.A when the criminal codes could equally deal with such culprits.

Mr J.A Braimah (U.P- Gonja East) made these analysis:Under part 9 of the Criminal Code Cap. 9- Offences Against the Safety of the State- we see that provision is made for the following offences- section 337- Treason; section 338- Misprison of treason; section 339- Treason felony; section 340- Application of English Law of treason and section 341- with your permission Mr Speaker I quote:

“341. Whoever instigates any foreigner to invade the Gold Coast with armed force shall be liable to suffer death.”

“342. Whoever attacks or prepares to attack with armed force any persons within the Gold Coast, or proceeds or prepares to attack with armed force any person without the Gold Coast, shall be liable to imprisonment for life.”

“Why is it that the Government are now trying to deny any person accused of any of these offences trial by court? To me Sir, the punishments provided under these sections have the deterrent effect against the committing of offences against the safety of the state.”

Braimah’s concern is similar to arguments made by counsel for the detainees in the Re Akoto case.

Counsel, in his 5th point, asserted:“(5) By virtue of section 3 of the Criminal Procedure Code, Cap 10 of the laws of the Gold Coast (1951 Rev) now section 1 of the Criminal Procedure Code 1960 (Act 30), the Governor General is precluded from exercising the powers conferred on him under the Preventive Detention Act, to make an order for the arrest and detention of the appellants without trial except in accordance with the Criminal Procedure Code.”

The Supreme Court did not buy this argument. Referring to section 3 of the Criminal Procedure Code, the court analysed the matter.

Section 3 stated: “(1) All offences under the Criminal Code shall be enquired into, tried and otherwise dealt with according to the provisions of the code;

(2) All other offences shall be enquired into, tried and otherwise dealt with according to the provisions of this code, subject however to the provisions of any ordinance regulating the manner or place of enquiry into, trial or other dealing with such offences.”

The court reasoned that the section above only made provision for trial of offences committed but could not operate to limit the exercise of powers of detention for the prevention of acts seen to be prejudicial to the safety of the state. The court was of the opinion that the Preventive Detention Act was meant to deal with acts that may be committed in the future while the Criminal Code boarded on acts which had already been committed. The difference was that, P.D.A was to be a preventive mechanism to deal with all acts that gave hints that something “evil” was cooking and needed to be nipped and the plotters needed to be arrested. As for the Criminal Code, it was a “post evil act mechanism.”

Summarily, this was the intention of P.D.A in the words of the then Minister of Information and Broadcasting, Mr Kofi Baako: The Ghana Bill is not as drastic as this law which has existed continuously in one part of the United Kingdom for 36 years. The Hon. Member is perfectly right. There was a state of civil war and so that special law was introduced. We do not want a civil war to come before we fight against it. We are preventing it.”

I am of the opinion that the P.D.A was a rather proactive security mechanism but the devil was in its execution.

Under the 1992 Constitution, it will be silly on my part to ask the Government of the day to bring back P.D.A. My thinking is that security matters of a state are crucial to be toiled with and the issuance of statements by Government officials will not suffice to safeguard the security of Ghana and her citizens.

The country needs a proactive security mechanism to sustain the safety of the people living within it. The P.D.A, despite its debacle, had a proactive intention.

This is from a young citizen writing in his cubicle

12th June, 2019.

Somewhere in Accra.