The President of the Republic of Ghana, in the face of the coronavirus (COVID-19) pandemic, issued directives to Ghanaians in a televised broadcast on Sunday, 15th March 2020. The directives essentially placed a ban on church-related activities, mosques prayers and all other public gatherings of persons exceeding 25. The President similarly ordered the closure of educational institutions including universities and senior high schools effective Monday, 16th March 2020.
Subsequent to the directives, citizens and institutions responded depending on the understanding of the effect of those directives. The institutions and persons who interpreted the directives to be directly applicable complied with the directives immediately. The compliance saw the closure of educational institutions, suspension of church activities, cancellation of social ceremonies and related activities. In the case of public universities, the internal processes and procedures had to be triggered in accordance with the provisions in the Laws that established the Universities and relevant subsidiary enactments (Statutes).
Subsequently, actions were taken by some government agencies to enforce the directives suggesting that the directives were directly applicable. First, the Minister of Information warned of military intervention to enforce the directives. A District Chief Executive with security personnel, for example, reportedly arrested a certain leader (prophetess) of a prayer camp and an elder of the camp in the Eastern Region for defying the order. A Pastor was also arrested by a Regional Police Command for similar reasons. Similarly, a Municipal Security Council reportedly issued a notice to apprehend and prosecute persons and organisations for non-compliance with the directives. In another development, a District Court in the Eastern Region convicted a 40-year old pastor to 50 penalty units on two counts of unlawful assembly and offensive conduct.
The pastor was arrested following a report of leading a congregation of about 50 persons in defiance of the President’s directives. For all intent and purposes, the ban may be in the interest of all citizens of Ghana in the fight against the deadly pandemic that has plagued the world. However, legal issues are arising from the directives and its enforcement, particularly by the police and these issues have the potential of setting a precedent which could be used to justify future abuse of executive power under similar circumstances.
The issues that arise in the aftermath of the directives are the exercise of executive powers, fundamental rights and freedoms and powers of public bodies. The relevant questions that flow from the issues are: (i) whether the President has absolute prerogative powers under the circumstance, (ii) whether the arrests of the citizens cited supra amount to an infringement of fundamental rights and freedoms and (iii) whether the President’s directives are directly applicable.
In answering these questions, it is important to take a look at the relevant laws with the view to applying them to the facts giving rise to the issues in this write-up.
The first point of interest will be the laws on closure of educational institutions, particularly public universities. The power to close down public universities and to take related decisions have been conferred on the Governing Council and the Academic Board of those universities by the respective Acts of Parliament and Statutes, subject to rules and procedures. In the case of the University of Cape Coast, for example, the power has been conferred on the Academic Board under statute 5.2 (l), to order the closure of the University where academic or normal life is disrupted and the Board deems it fit to do so. In the case of the University of Ghana, this power is conferred on the Governing Council under section 16, subsection 1 of the University of Ghana Act 2010 (Act 806). The University Council thus has the powers to do or provide for any act or thing in relation to the University which the Council considers necessary or expedient.
In the case of public universities in Ghana, the institutions could not have closed down automatically following the announcement and that further action needed to be taken by the body mandated by law (board/committee) on the need to close down the university.
It is important at this point to give attention to the Constitution of Ghana, particularly the fundamental human rights and freedoms of Ghanaians guaranteed under Chapter 5. Other rights and freedoms not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man are also recognised under Article 33 clause 5. These freedoms and rights, for the purpose of this write-up, include personal liberty; freedom of religion and to manifest such religion; freedom of assembly, freedom of movement including the right to leave and enter Ghana and immunity from expulsion from Ghana; and cultural rights and practice. Under Article 12 clause 1 of the Constitution of Ghana, the fundamental rights are to be upheld by all the three arms of government. The President is therefore bound to respect these rights and freedoms.
The Constitution has provided exceptional cases under which a Ghanaian citizen could be deprived of/restricted from any of the rights and freedoms in accordance with procedures permitted by law. The exceptional cases, applicable to the current situation are (i) isolation, treatment and care of patientsof infectious or contagious disease; (ii) under law passed in the interest of public health, public safety, defence etc. (for example, the Imposition of Restrictions Act 2020, Act 1012; and (iii) declaration of state of emergency.
From the foregoing, therefore, apart from persons who had already tested positive for the SARS-cov2 virus, any unconditional restriction or deprivation of any constitutional right and freedom arising from the directives sends the wrong signal to the effect that the President’s directives override the provisions in the Constitution and amount to an infringement on rights and freedoms. I say this because, at the time, the IRA 2020 had not been passed, neither had a state of emergency been declared. Yet the police could arrest citizens for exercising their rights and enjoying the freedoms.
The President of Ghana signed the Imposition of Restrictions Act 2020 (Act 1012) into law ostensibly to give legal backing to the directives. This is similar to laws in other countries such as the Coronavirus Act 2020 of the United Kingdom.
The Imposition of Restrictions Act is expected to address concerns regarding the conflict of the directives with the fundamental rights and freedoms. Unfortunately, the law in its current form does not address these concerns and might pose enforcement challenges. First of all, it does not take retrospective effect and therefore can not give legal backing to the orders issued before it came into force. Second and most importantly, the scope and the scheme of the law does not allow for unlimited restrictions. The scope of Article 21, clause 4, paragraphs (c) – (d) to which the Act gives effect cover essentially restriction of freedom of movement of residents within Ghana, restriction of freedom of entry into Ghana and prevention of teachings and doctrines that encourage disrespect for nationhood, national symbols and incitement of hatred for members of the community. Arguably, the imposition of restrictions outside this scope comes with legal implications.
The measures announced by the President of the Republic may be in order. However, in future such orders should be grounded in law. Where an Act of Parliament is required to be enacted, the law must be passed before any announcement is made to that effect. Similarly, where an executive instrument is required to be issued, that ought to be done before any announcement to that effect. The law enforcement agencies should be educated on the legal implications of arrests connected to defiance of Presidential Orders.