The Supreme Court for the second time, yesterday could not deliver its much expected judgment in the suit concerning the controversial agreement signed between the erstwhile National Democratic Congress (NDC) government and the United States of America (USA) to bring to Ghana two ex-convicts of Guantanamo Bay.
The court had on February 8, this year, set April 26, 2017 to deliver its decision on the matter but was adjourned until yesterday.
At yesterday’s sitting, the seven-member panel of justices at the court, presided over by Justice William Atuguba, indicated 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.
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 court has however, ordered the parties to file their submissions independently on or before May 24, 2017 while judgement is slated for June 22.
The two Ghanaians are asking the Supreme Court to declare that President John Mahama acted unconstitutionally by accepting the Al-Qaeda terrorists in Ghana.
The case took a new 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 – 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.
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.”
Mr Barfuor Awuah argued among other things, “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 were not a foreign power. It was the Supreme Court and then a Ghanaian citizen exercising his right under Article 2 (1).”
Other justices on the panel were Sophia Akufo, Jones Victor Dotse, Anin-Yeboah and Paul Baffoe Bonney.
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