Introduction/Background

This piece seeks to critique the rights implications of the directive given by the President of the Republic of Ghana, in his address to the nation on March 15, 2020, with respect to emergency measures being undertaken by the government to address the COVID-19 pandemic.

Rights are not absolute

Rights are not absolute. Their enjoyment is limited in a variety of ways to enable the dutybearer, mainly the State (represented by the Executive, Legislature and Judiciary and all other organs of government and its agencies), to promote orderliness, peace and security in the country. This way, we avoid a ‘state of nature’ where, in the words of Thomas Hobbes, there is ‘continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short’.  

Limitations and derogations

Two common ways rights enjoyment get restricted are expressed through the form of a general limitation clause covering all the recognised rights as well as specific limitations that are embedded in each recognised right. Further, the State is empowered, during periods of emergency, to derogate from respecting, protecting and fulfilling certain rights temporarily to better manage a crisis. Yet, not all rights can be derogated from, irrespective of the enormity or gravity of the emergency situation. 

General and specific limitations

In the case of Ghana’s Fourth Republican Constitution, general and specific limitations are stipulated. The former is found in article 12(2) which provides:

Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest [Emphasis added]

Specific limitations are found in, for example, article 18(2) where it is stated thus: 

No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others [Emphasis added]

The italicised form the limitation to the enjoyment of that right.

However, not all rights under Chapter 5 of the Constitution contain limitation clauses. A good example is under article 21(1)(a)-(e):

(1) All persons shall have the right to –

  • freedom of speech and expression, which shall include freedom of the press and other media;
  • freedom of thought, conscience and belief, which shall include academic freedom;
  • freedom to practice any religion and to manifest such practice;
  • freedom of assembly including freedom to take part in processions and demonstrations;
  • freedom of association, which shall include freedom to form or join trade unions or other associations, national or international, for the protection of their interest.

Contrast, for example, article 21(1)(a) on freedom of expression with its counterpart in article 19 of the International Covenant on Civil and Political Rights (ICCPR) which provides:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

  • For respect of the rights or reputations of others;
  • For the protection of national security or of public order (ordre public), or of public health or morals. [Emphasis added].

However, the two remaining freedoms in the same article 21 have limitations attached to them. Thus, article 21(1)(f) reads: ‘All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.’ [Emphasis added]

Article 21(1)(g) also provides that ‘All persons shall have the right to freedom of movement which means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana.’

Their limitations, quite elaborate, are covered in article 21(4) (a) to (d), expressed as follows: 

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-

  • for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or public order, on the movement or residence within Ghana of any person; or
  • for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or
  • for the imposition of restrictions that are reasonably required in the interest of defence, 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
  • 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

Interestingly, this is the provision the President of the Republic is relying on to have a new legislation passed under a certificate of emergency called Imposition of Restrictions Bill, 2020 to deal with the COVID-19 epidemic. In his speech on March 15, 2020, he noted, that he had “directed the Attorney General to submit immediately to Parliament emergency legislation in accordance with Article 21 (4) (c) and (d) of the Constitution of the Republic to embody these measures.”

However, the areas of limitations or restrictions in article 21 (4)(c) and (d), as noted above, cover limitations to the enjoyment of freedom of movement only. Yet, the areas where legislation is being sought to impose restrictions are broader and cover many other rights, both civil and political and economic, social and cultural. 

These are the right to education (closure of schools), freedom of religion (suspension of services in churches and mosques have been suspended for the next four weeks), cultural rights (funerals private burials limitation of numbers 25), freedom of association (suspension of conferences, workshops), political rights and freedom of expression (suspension of political rallies), leisure (sporting events), and movement (travel advisory).

Therefore, it is palpably not clear how a limitation on movement of freedom can be extended to cover these other rights.

Derogations

Article 4 of the ICCPR, of which Ghana is a State Party and therefore legally bound to respect its provisions, it is provided that 

1In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

These rights which cannot be derogated from are the right to freedom of religion, right to life, protection against slavery and the slave trade, protection against torture, cruel, inhuman and degrading treatment or punishment, right to recognition everywhere as a person before the law. Under our Constitution, derogation is allowed under article 31 during such times. However, there are some particular stringent rules and procedures prescribed in the Constitution which a government is required to follow when a declaration of a state of emergency is declared. 

First, the President can only declare a state of emergency acting on the advice of the Council of State by publishing a proclamation in the Gazette to declare that a state of emergency exists in Ghana or in any part of Ghana for the purposes of the provisions of this Constitution.

Second, immediately after doing so, the President shall go before Parliament (not authorise the A-G to prepare a legislation to limit the enjoyment of rights), with the facts and circumstances leading to the declaration of the state of emergency, to seek justification and confirmation for the imposition of the state of emergency. Parliament will then have 3 days to decide whether the proclamation should remain in force or should be revoked. Should Parliament disapprove of the proclamation, the President shall have no choice but to comply with the decision of Parliament.

In this case, these processes were not followed. There is no indication of the involvement of the Council of State in this process. Neither was a proclamation gazetted and later submitted before Parliament.

Bill relevant?

Apart from the palpable procedural breaches, the legislation itself is irrelevant and redundant. Reference article 31(10) of the Constitution, it is provided that ‘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 period.’

This provision means that any derogation from Chapter 5 on the fundamental rights and freedoms has to be done by way of legislation. Yet that legislation already exists, in the name of the Emergency Powers Act, 1994. This Act sets out the consequential powers of the President (under section 5 of the Act) after declaring a state of emergency and which entitles him to make the following orders, among others: 

i. the detention of persons or the restriction of the movement of persons; ii. the deportation and expulsion from Ghana of a person who is not a citizen; iii. taking, possession or control of a property on behalf of the Republic; iv. the acquisition of property;

  • the searching of premises without a warrant;
  • the payment of compensation to a person affected by an action taken under the emergency;
  • the arrest, trial and punishment of a person for breach of an instrument, order or a declaration related to the state of emergency; 
  • the suspension of operation of a law; and
  • the removal of a person from the emergency area, where the emergency relates only to a part of the Republic. 

Moreover, there are other laws which are already in operation to deal with emergencies and which have been used in the past for such purposes. They include the Quarantine Ordinance, 1915, (CAP 77), the Environmental Protection Act, 1994, (Act 490), the Infectious Disease Act, 1908 (CAP 78).

Executive instrument by the Minister for Health 

Apart from the directive to the Attorney-General, the President “further directed the Minister for Health to exercise his powers, under section 169 of the Public Health Act, 2012 (Act 851) by the immediate issuance of an Executive Instrument to govern the relevant measures.” 

Section 169 of Act 851 stipulates:

  • The Minister shall declare a public health emergency by Executive Instrument where there is a situation that poses an immediate risk to health, life property or the environment.
    • To meet the criteria for a public health emergency, the incident should
    • immediately threaten life, health, property or the environment;
    • have already caused loss of life, health detriments, property damage or environmental damage; or
    • have a high probability of escalating to cause immediate danger to life, health, property and the environment.

This provision confirms the fact that the Public Health Act has already relied on article 31 of the Constitution to create a public health emergency which, on its own, can be used to deal with the crisis at hand.

One could also say that had the government been proactive enough and listened to the call of the opposition and civil society actors, there would have been the need for a resort to section 169 of Act 851 but rather section 38 thereof, which provides, inter alia:

38(1) The Minister may, by legislative instrument, make Regulations for the purpose of preventing the introduction of a disease into the country from an infected place, or for the purpose of preventing the transmission of a disease from the country into any other country or from one part of the country to another.

Such instructions were carried out only later on in the government directive of banning persons arriving from countries where the infection rate of coronavirus has reached 200 and above. Yet, that directive should have come by way of a legislative instrument as prescribed under section 38(1) of Act 851.

Other problems with the Imposition of Restrictions Bill, 2020

First, the Imposition of Restrictions Bill itself does not directly address the COVID-19 phenomenon. The memorandum to the Bill simply states that ‘the purpose of the Bill is to provide for powers to impose restrictions on persons in the event of a disaster, emergency or similar circumstance, to ensure public safety and protection. 

Second, contrary to the President’s speech, the proposed use of the Bill ‘to provide generally for expeditious interventions by the Government in the event of unforeseeable emergencies’ is not supported by the presence of other legislation and regulations which are already in place to deal with such emergencies, including the National Disaster Management Organisation Act, 1996 (Act 517).

Further, the Bill wrongly indicates that the limitations spelt out under article 21(4)(c), (d) and (e) cover the rights and freedoms identified under article 21 generally (refer to paragraph 4 of the Bill). As noted above, the freedoms provided under article 21 do not have any limitations attached to them. The limitations in article 21(4) cannot be linked to these rights and freedoms because they are limited to freedom of movement only, apart from article 21(4)(e).

Does Article 31(10) meet Ghana’s international legal commitments?

Though directly linked to the President’s directives, it is worth mentioning that in dealing with states of emergency and seeking to curtail certain laws, Ghana and all States Parties to the ICCPR are to be mindful of their international legal commitments.

As already indicated, there are certain laws which a State Party cannot derogate from, no matter the gravity and enormity of the emergency. Yet, Ghana’s law does not allow for such derogation.

‘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 period.’

This means that the State has arrogated to itself the power to derogate from all the rights provided in articles 12 to 30 of the Constitutions. Yet, articles 12-30 include the right to life (article 13), protection against torture (article 15), protection against slavery (article 16), nondiscrimination and equality (article 17), which are all non-derogable clauses, according to article 4 of the ICCPR. Therefore, Ghana is in violation of its obligations under that treaty.

Conclusion and Recommendation

A number of procedural faux pas have been committed by the government, by way of legislation to control the COVID-19 pandemic. In particular, attempts to enact the Imposition of Restrictions Act, 2020 is ultra vires the Constitution. To avoid such a situation in the future, it is recommended that government takes steps to review and harmonise all existing legislation dealing with disasters and emergencies in the country. Government is also advised to be more proactive and put in place the necessary measures when dealing with such emergencies, especially in this case when it became obvious, several weeks back, that the arrival of the disease in the country was imminent.

Finally, Ghana is recommended to comply with article 4(3) of the ICCPR requires that a State Party that has declared a state of emergency shall  

immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Submitted by: Professor Kwadwo Appiagyei-Atua, School of Law, University of Ghana, Legon

Executive faux pas with the imposition of restrictions bill, 2020

Introduction/Background

This piece seeks to critique the rights implications of the directive given by the President of the Republic of Ghana, in his address to the nation on March 15, 2020 with respect to emergency measures being undertaken by the government to address the COVID-19 pandemic.

Rights are not absolute

Rights are not absolute. Their enjoyment is limited in a variety of ways to enable the dutybearer, mainly the State (represented by the Executive, Legislature and Judiciary and all other organs of government and its agencies), to promote orderliness, peace and security in the country. This way, we avoid a ‘state of nature’ where, in the words of Thomas Hobbes, there is ‘continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short’.  

Limitations and derogations

Two common ways rights enjoyment get restricted are expressed through the form of a general limitation clause covering all the recognised rights as well as specific limitations that are embedded in each recognised right. Further, the State is empowered, during periods of emergency, to derogate from respecting, protecting and fulfilling certain rights temporarily to better manage a crisis. Yet, not all rights can be derogated from, irrespective of the enormity or gravity of the emergency situation. 

General and specific limitations

In the case of Ghana’s Fourth Republican Constitution, general and specific limitations are stipulated. The former is found in article 12(2) which provides:

Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest [Emphasis added]

Specific limitations are found in, for example, article 18(2) where it is stated thus: 

No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others [Emphasis added]

The italicised form the limitation to the enjoyment of that right.

However, not all rights under Chapter 5 of the Constitution contain limitation clauses. A good example is under article 21(1)(a)-(e):

(1) All persons shall have the right to –

  • freedom of speech and expression, which shall include freedom of the press and other media;
  • freedom of thought, conscience and belief, which shall include academic freedom;
  • freedom to practice any religion and to manifest such practice;
  • freedom of assembly including freedom to take part in processions and demonstrations;
  • freedom of association, which shall include freedom to form or join trade unions or other associations, national or international, for the protection of their interest.

Contrast, for example, article 21(1)(a) on freedom of expression with its counterpart in article 19 of the International Covenant on Civil and Political Rights (ICCPR) which provides:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

  • For respect of the rights or reputations of others;
  • For the protection of national security or of public order (ordre public), or of public health or morals. [Emphasis added].

However, the two remaining freedoms in the same article 21 have limitations attached to them. Thus, article 21(1)(f) reads: ‘All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.’ [Emphasis added]

Article 21(1)(g) also provides that ‘All persons shall have the right to freedom of movement which means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana.’

Their limitations, quite elaborate, are covered in article 21(4) (a) to (d), expressed as follows: 

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-

  • for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or public order, on the movement or residence within Ghana of any person; or
  • for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or
  • for the imposition of restrictions that are reasonably required in the interest of defence, 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
  • 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

Interestingly, this is the provision the President of the Republic is relying on to have a new legislation passed under a certificate of emergency called Imposition of Restrictions Bill, 2020 to deal with the COVID-19 epidemic. In his speech on March 15, 2020, he noted, that he had “directed the Attorney General to submit immediately to Parliament emergency legislation in accordance with Article 21 (4) (c) and (d) of the Constitution of the Republic to embody these measures.”

However, the areas of limitations or restrictions in article 21 (4)(c) and (d), as noted above, cover limitations to the enjoyment of freedom of movement only. Yet, the areas where legislation is being sought to impose restrictions are broader and cover many other rights, both civil and political and economic, social and cultural. 

These are the right to education (closure of schools), freedom of religion (suspension of services in churches and mosques have been suspended for the next four weeks), cultural rights (funerals private burials limitation of numbers 25), freedom of association (suspension of conferences, workshops), political rights and freedom of expression (suspension of political rallies), leisure (sporting events), and movement (travel advisory).

Therefore, it is palpably not clear how a limitation on movement of freedom can be extended to cover these other rights.

Derogations

Article 4 of the ICCPR, of which Ghana is a State Party and therefore legally bound to respect its provisions, it is provided that 

1In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

These rights which cannot be derogated from are the right to freedom of religion, right to life, protection against slavery and the slave trade, protection against torture, cruel, inhuman and degrading treatment or punishment, right to recognition everywhere as a person before the law. Under our Constitution, derogation is allowed under article 31 during such times. However, there are some particular stringent rules and procedures prescribed in the Constitution which a government is required to follow when a declaration of a state of emergency is declared. 

First, the President can only declare a state of emergency acting on the advice of the Council of State by publishing a proclamation in the Gazette to declare that a state of emergency exists in Ghana or in any part of Ghana for the purposes of the provisions of this Constitution.

Second, immediately after doing so, the President shall go before Parliament (not authorise the A-G to prepare a legislation to limit the enjoyment of rights), with the facts and circumstances leading to the declaration of the state of emergency, to seek justification and confirmation for the imposition of the state of emergency. Parliament will then have 3 days to decide whether the proclamation should remain in force or should be revoked. Should Parliament disapprove of the proclamation, the President shall have no choice but to comply with the decision of Parliament.

In this case, these processes were not followed. There is no indication of the involvement of the Council of State in this process. Neither was a proclamation gazetted and later submitted before Parliament.

Bill relevant?

Apart from the palpable procedural breaches, the legislation itself is irrelevant and redundant. Reference article 31(10) of the Constitution, it is provided that ‘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 period.’

This provision means that any derogation from Chapter 5 on the fundamental rights and freedoms has to be done by way of legislation. Yet that legislation already exists, in the name of the Emergency Powers Act, 1994. This Act sets out the consequential powers of the President (under section 5 of the Act) after declaring a state of emergency and which entitles him to make the following orders, among others: 

i. the detention of persons or the restriction of the movement of persons; ii. the deportation and expulsion from Ghana of a person who is not a citizen; iii. taking, possession or control of a property on behalf of the Republic; iv. the acquisition of property;

  • the searching of premises without a warrant;
  • the payment of compensation to a person affected by an action taken under the emergency;
  • the arrest, trial and punishment of a person for breach of an instrument, order or a declaration related to the state of emergency; 
  • the suspension of operation of a law; and
  • the removal of a person from the emergency area, where the emergency relates only to a part of the Republic. 

Moreover, there are other laws which are already in operation to deal with emergencies and which have been used in the past for such purposes. They include the Quarantine Ordinance, 1915, (CAP 77), the Environmental Protection Act, 1994, (Act 490), the Infectious Disease Act, 1908 (CAP 78).

Executive instrument by the Minister for Health 

Apart from the directive to the Attorney-General, the President “further directed the Minister for Health to exercise his powers, under section 169 of the Public Health Act, 2012 (Act 851) by the immediate issuance of an Executive Instrument to govern the relevant measures.” 

Section 169 of Act 851 stipulates:

  • The Minister shall declare a public health emergency by Executive Instrument where there is a situation that poses an immediate risk to health, life property or the environment.
    • To meet the criteria for a public health emergency, the incident should
    • immediately threaten life, health, property or the environment;
    • have already caused loss of life, health detriments, property damage or environmental damage; or
    • have a high probability of escalating to cause immediate danger to life, health, property and the environment.

This provision confirms the fact that the Public Health Act has already relied on article 31 of the Constitution to create a public health emergency which, on its own, can be used to deal with the crisis at hand.

One could also say that had the government been proactive enough and listened to the call of the opposition and civil society actors, there would have been the need for a resort to section 169 of Act 851 but rather section 38 thereof, which provides, inter alia:

38(1) The Minister may, by legislative instrument, make Regulations for the purpose of preventing the introduction of a disease into the country from an infected place, or for the purpose of preventing the transmission of a disease from the country into any other country or from one part of the country to another.

Such instructions were carried out only later on in the government directive of banning persons arriving from countries where the infection rate of coronavirus has reached 200 and above. Yet, that directive should have come by way of a legislative instrument as prescribed under section 38(1) of Act 851.

Other problems with the Imposition of Restrictions Bill, 2020

First, the Imposition of Restrictions Bill itself does not directly address the COVID-19 phenomenon. The memorandum to the Bill simply states that ‘the purpose of the Bill is to provide for powers to impose restrictions on persons in the event of a disaster, emergency or similar circumstance, to ensure public safety and protection. 

Second, contrary to the President’s speech, the proposed use of the Bill ‘to provide generally for expeditious interventions by the Government in the event of unforeseeable emergencies’ is not supported by the presence of other legislation and regulations which are already in place to deal with such emergencies, including the National Disaster Management Organisation Act, 1996 (Act 517).

Further, the Bill wrongly indicates that the limitations spelt out under article 21(4)(c), (d) and (e) cover the rights and freedoms identified under article 21 generally (refer to paragraph 4 of the Bill). As noted above, the freedoms provided under article 21 do not have any limitations attached to them. The limitations in article 21(4) cannot be linked to these rights and freedoms because they are limited to freedom of movement only, apart from article 21(4)(e).

Does Article 31(10) meet Ghana’s international legal commitments?

Though directly linked to the President’s directives, it is worth mentioning that in dealing with states of emergency and seeking to curtail certain laws, Ghana and all States Parties to the ICCPR are to be mindful of their international legal commitments.

As already indicated, there are certain laws which a State Party cannot derogate from, no matter the gravity and enormity of the emergency. Yet, Ghana’s law does not allow for such derogation.

‘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 period.’

This means that the State has arrogated to itself the power to derogate from all the rights provided in articles 12 to 30 of the Constitutions. Yet, articles 12-30 include the right to life (article 13), protection against torture (article 15), protection against slavery (article 16), nondiscrimination and equality (article 17), which are all non-derogable clauses, according to article 4 of the ICCPR. Therefore, Ghana is in violation of its obligations under that treaty.

Conclusion and Recommendation

A number of procedural faux pas have been committed by the government, by way of legislation to control the COVID-19 pandemic. In particular, attempts to enact the Imposition of Restrictions Act, 2020 is ultra vires the Constitution. To avoid such a situation in the future, it is recommended that government takes steps to review and harmonise all existing legislation dealing with disasters and emergencies in the country. Government is also advised to be more proactive and put in place the necessary measures when dealing with such emergencies, especially in this case when it became obvious, several weeks back, that the arrival of the disease in the country was imminent.

Finally, Ghana is recommended to comply with article 4(3) of the ICCPR requires that a State Party that has declared a state of emergency shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated.

A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Submitted by: Professor Kwadwo Appiagyei-Atua, School of Law, University of Ghana, Legon (appiagyeiatua@yahoo.fr) (appiagyeiatua@yahoo.fr)


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