Gitmo 2
The Supreme Court has declared as unconstitutional the admission of two Guantanamo Bay detainees into the country by the previous Mahama administration.
According to the judges, the Mahama-led National Democratic Congress (NDC) government acted unconstitutionally when it signed the controversial agreement with the United States of America (USA) government to bring the two suspected terrorists of Al-Qaeda into the country.
The arrival of Mahmud Umar Muhammad Bin Atef, 36, and Khalid Muhammad Salih Al-Dhuby, 34, in Ghana in 2016 caused public uproar over the possible security implications, as the two were deemed to be former Al-Qaeda terrorists.
Judgement
But the court, presided over by Chief Justice Sophia Akuffo, yesterday by a six to one majority decision said the agreement was unconstitutional, with Justice William Atuguba, dissenting.
The court held that President Mahama needed the approval of Parliament before entering into any international agreement.
The court ordered the government to within the next three months send the agreement to Parliament for ratification or send the detainees back to the United States.
The court adjourned the delivery of the judgment on two occasions.
At the last sitting, Justice William Atuguba told the court that after a judgment conference, they were still unable to reach a decision in respect of some of the reliefs the plaintiffs – Margaret Bamfo, 86, a retired Conference Officer of the Ministry of Foreign Affairs and Henry Nana Boakye, a student of Ghana School of Law – were seeking.
The applicants claimed the President acted unconstitutionally by agreeing to the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhuby to Ghana.
Further Submissions
Justice Atuguba, who described the decision of the court as “monumental,” stated that the parties had to make further submissions as to whether or not Ghana can withdraw from an international agreement it had entered into which breaches the Constitution.
The apex court also wants the parties to look at the impact of Articles 83 and 84 as against Article 75 of the 1992 Constitution.
The two Ghanaians were asking the Supreme Court to declare that President Mahama acted unconstitutionally by accepting the Al-Qaeda terrorists in Ghana.
The case took a different twist on April 12 when the defendants, made up of the Attorney General and the Minister of the Interior, filed a process averring that Ghana actually has an existing agreement with the United States government regarding the two detainees whose presence continues to generate public uproar.
The revelation by the AG was a sharp departure from the government’s widely-held position that the acceptance of the two Al-Qaeda foot soldiers was purely a “diplomatic arrangement exercised through an executive power by the president.”
Plaintiff‘s Position
Barfuor Awuah, who represented the plaintiffs, said that “after contending in our statement of case that the agreement is of the kind that requires parliamentary approval in accordance with Article 75 of the 1992 Constitution, the AG, in its response, stated that it is not the kind which is contemplated in Article 75.
He said, “By virtue of that disputation by the AG, it was essential for the agreement to be produced otherwise it may seem as though the court was going to determine the case without having looked at the said agreement which is the subject matter of the suit. We want them to produce the agreement for the court to determine the nature and scope of it as to whether it is the kind contemplated by Article 75.”
Other justices on the panel were Jones Victor Dotse, Anin-Yeboah and Paul Baffoe Bonnie.
By Jeffrey De-Graft Johnson
jeffdegraft44@yahoo.com