OccupyGhana is extremely concerned about the practice where the Ghana Police Service easily obtains ex parte injunctions to stop demonstrations in Ghana, and the use of those one-sided injunctions as an excuse to brutalise persons who embark on demonstrations in Ghana.
The right of Ghanaians to demonstrate is enshrined in and protected by Article 21(1)(d) of the Constitution, which guarantees the “freedom of assembly including freedom to take part in processions and demonstrations.” It is instructive that although this right is so clearly and notoriously provided in the Constitution, the police, even after the Constitution came into force, insisted on enforcing the contrary provisions of the erstwhile 1972 Public Order Decree that provided for obtaining the police’s permission before one could demonstrate.
Thankfully, this anachronistic and unconstitutional permission was firmly consigned to the dustbin of history by the Supreme Court in the seminal case of the New Patriotic Party v. the Inspector-General of Police on 30th November 1993.
It was only after this decision that parliament passed the current Public Order Act that requires simply giving the police a 5-day clear notice of an event. Under the Act, the police have no power to stop the event, and may merely request its postponement or relocation. If the police and the persons seeking to demonstrate are unable to agree to postpone or relocate the demonstration, the police is then required to apply to the court for an order that can only restrain holding the event on the proposed date or at the proposed location. Nothing more.
We are also aware that under the law, all of the applications required by law to be made to a court, must be made with notice to the affected party. Indeed, proceeding on ex parte basis (to wit., the instance of one party only and without notice to any person adversely interested) should be the exception and not the norm.
That is why there are very strict rules regulating ex parte applications, so that the court should only entertain such applications, subject to such undertakings that it considers just, and only where it is satisfied that a delay caused by proceeding on notice would or might entail irreparable damage or serious mischief. Further, ex parte injunctions are not to be given for more than 10 days at a time, during which time the Police must repeat the application, this time on notice to the other side; else the order will lapse.
It is in the light of these strict conditions for obtaining ex parte injunctions that we are shocked at the current practice where the Police routinely file and obtain such injunctions simply to stop or scuttle demonstrations, and never follow up with the application on notice. Clearly, the Ghana Police Service is being mischievous in this regard, and we are also extremely concerned about the willingness of the court to grant such ex parte orders and then not sanction the police when it is so clear that the processes and machinery of the court are being abused by the Ghana Police Service.
The recent tussle between the police and the pressure group called Let My Vote Count typifies this abuse of the court’s processes by the police. The police, as usual, easily obtained an ex parte injunction on 15th September 2015, claiming that the Electoral Commission is a “security zone” where no demonstrations are permitted, and therefore invoking a “relocation” injunction. It is obvious to us that the police could not show how property that belongs to an independent constitutional body, such as the Electoral Commission, could be declared a “security zone.” And, we are certain that there is no statutory or executive instrument that has declared the land occupied by the Electoral Commission to be a security zone.
Yet, comfortable in the ex parte injunction, the police went ahead to brutalise demonstrators. It is on record that at least one citizen of this nation has lost an eye from the police brutalities meted out on that day. Indeed, the country was so shocked at acts of the police (captured on camera and splashed on the internet and on traditional and social media) that the President has had to call for an inquiry into the actions of the police on that day. We are yet to hear that a body has been set up to inquire into those clearly illegal and unconstitutional acts of the police.
It is further shocking that after obtaining the injunction and consequently beating up fellow citizens, the police went to sleep and did not bother to repeat the application on notice, as is required by law. When the 10-day period given by the court expired, the court rightfully so held, giving the demonstrators the right to proceed with the demonstration.
However, in a most brazen, shameless and bald-faced abuse of the court processes, the police, within hours of this court ruling, rushed back to court with yet another ex parte injunction application, and had it placed before another judge. This time, the police abandoned the “relocation” argument, and suddenly the Electoral Commission was no longer a “security zone.”
The police, deliberately failing to inform the new judge about the earlier ruling, now claimed that Ghana was about to be hit with a huge onslaught of banditry and robbery by “suspected hardened criminals,” which required a nationwide “mapping-up operation” between 25th and 30th September. To add spice to this tale, the police mentioned an alleged shooting of a police officer in Ho and chieftaincy dispute in Bolgatanga as somehow supporting this fantastic, phantom claim. They got away with it, and the new judge granted yet another ex-parte order, this time a “postponement” order, restraining the holding of the demonstration until October.
We condemn these acts of the police in no uncertain terms. The time has come for the Police to show to Ghanaians that it exists to serve all of us, and not just to protect the interest of those in power. This clearly unconstitutional scuttling of a right guaranteed by the Constitution and re-affirmed by the Supreme Court ought to stop, and stop immediately.
We do not need yet another Supreme Court pronouncement on these shenanigans and pranks engaged in by our Police Service. The top hierarchy of the police has to keep faith with the people of this country and abandon these clear unlawful acts. Further, our courts have to stand and protect our Constitutional rights, and resist this repeated abuse of its processes and machinery as a tool of oppression of the citizens of the land, the ultimate repository of all power.
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