The Guantanamo Bay Detainees
The Supreme Court has scheduled April 26, 2017, to deliver judgement in the suit over the agreement signed by the National Democratic Congress (NDC) government and the United States of America to bring to Ghana the two hardcore terrorists released from Guantanamo Bay.
The seven-member panel of judges, presided over by Justice William Atuguba, agreed on the date after Kweku Darko Asiedu, lawyer for the plaintiffs – Margaret Bamfo, an 86-year-old retired Conference Officer of the Ministry of Foreign Affairs and Henry Nana Boakye, a student of Ghana School of Law – had told the court that he had filed further arguments.
He said the plaintiffs would rely on the averments in the document.
Dorothy Afriyie Ansah, a chief state attorney, said the state prosecutor would also rely on its statement of case filed on June 10, 2016.
She stated that she did not intend to make any further arguments in respect of the case.
Parent Suit
The two Ghanaians are asking the Supreme Court to declare that President John Mahama acted unconstitutionally by accepting to bring the Al-Qaeda terrorists (ex-convicts) to Ghana.
The case took a new twist on April 12, 2016, when the defendants, made up of the Attorney General and the Minister of the Interior filed a process averring that Ghana actually had 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: Mahmud Umar Muhammad Bin Atef, 36 and Khalid Muhammad Salih Al-Dhuby, 34, was purely a “diplomatic arrangement exercised through an executive power by the president.”
Plaintiff‘s Position
Barfuor Awuah, who represents the plaintiffs, had 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 their response stated that it is not the kind which is contemplated in Article 75.
“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,” adding, “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.”
He indicated, “It was our case that Section 1 of the State Secret Act which they were asserting did not avail them because that bothers on the leakage of state information for the use of foreign powers. In this particular case, we require that information for the enforcement of the constitution and the recipients of that information was not a foreign power. It was the Supreme Court and then a Ghanaian citizen exercising his right under Article 2 (1).”
He said the privilege we are also asserting under the Evidence Decree was not conclusive. It was subject to Article 135 of the constitution and also in the interest of justice. We formed the view that there is no greater justice than the protection of the constitution.”
Proper Interpretation
The plaintiffs are seeking among other reliefs, a declaration that on a true and proper interpretation of Article 75 of the1992 Constitution of Ghana, the President of the Republic of Ghana acted unconstitutionally by agreeing to the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhuby (both profiled terrorists and former detainees of Guantanamo Bay) to the Republic of Ghana without the ratification by an Act of Parliament or a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.
Plaintiffs are further seeking a declaration that on a true and proper interpretation of Article 58(2) of the 1992 Constitution of Ghana, the President of the Republic of Ghana who is under an obligation to execute and maintain the laws of Ghana, breached the Anti-terrorism Act of 2008 (Act 762) and the Immigration Act of 2000 (Act 573), both being laws passed under the 1992 Constitution of Ghana.
Other justices on the panel were Sophia Akufo, Jones Victor Dotse, Anin-Yeboah and Paul Baffoe Bonney.
By Jeffrey De-Graft Johnson
jeffdegraft44@yahoo.com