Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 RE: AKOTO AND 7 OTHERS | GhanaLegal - Resources for the legal brains

RE: AKOTO AND 7 OTHERS


  • appeal
  • 1961-08-28
  • SUPREME COURT
  • GLR 523-535
  • Print

KORSAH, C.J., VAN LARE AND AKIWUMI, JJ.S.C.


Summary

Habeas Corpus?-Appeal against refusal?-Whether formal return necessary?-Whether court required to enquire into truth of grounds of detention?-Allegations of malice by high officer of state?-"Security of the State"?-Whether detention without trial lawful?-Whether Preventive Detention Act is contrary to Constitution?-Whether Act is in excess of powers conferred upon Parliament?-Whether contrary to solemn declaration made by President on assumption of office?-Habeas Corpus Act, 1816, (56 Geo. 3, c. 100)?-Preventive Detention Act, 1958 (No. 17 of 1958)?-Criminal Procedure Code, Cap. 10 (1951 Rev.) s. 3?-Criminal Code, 1960 (Act 29) Part IV, Ch. 1?-Constitution, Arts. 13 (1), 20, 40 and 42 (2)?-Supreme[High Court] (Civil Procedure) Rules 1954, Order 59, r. 14.

Headnotes

The appellants were arrested and placed in detention on the 10th and 11th November, 1959, under an order made by the Governor-General and signed on his behalf by the Minister of the Interior under section 2 of the Preventive Detention Act, 1958 (No. 17 of 1958). Their application to the High Court for writs of habeas corpus ad subjiciendum was refused. They appealed and counsel on their behalf argued seven main points, namely:(1) The learned judge acted in excess of jurisdiction in refusing the application without making an order for a formal return.(2) By virtue of the Habeas Corpus Act of 1816 the court is required to enquire into the truth of the facts contained in "The Grounds" upon which the Governor-General was satisfied that the order was necessary to prevent the appellants from acting in a manner prejudicial to the security of the state. [p.524](3) The Minister of Interior who signed the order for and on behalf of the Governor General was actuated by malice.(4) The grounds upon which the appellants were detained do not fall within the ambit of the expression "Acts prejudicial to the security of the state".(5) By virtue of section 3 of the Criminal Procedure Code, Cap. 10 of the Laws of the Gold Coast (1951 Rev.) now section 1 of the Criminal Procedure Code 1960 (Act 30), the Governor-General is precluded from exercising the powers conferred on him under the Preventive Detention Act, to make an order for the arrest and detention of the appellants without trial except in accordance with the Criminal Procedure Code.(6) The Preventive Detention Act, 1958, by virtue of which the appellants were detained, is in excess of the powers conferred on Parliament by the Constitution of the Republic of Ghana with respect to article 13 (1) of the Constitution, or is contrary to the solemn declaration of fundamental principles made by the President on assumption of office.(7) The Preventive Detention Act not having been passed upon a declaration of emergency is in violation of the Constitution of the Republic of Ghana.The appellants' application for habeas corpus was supported by affidavit with exhibits disclosing (a) the order of detention, (b) the written information furnished with it in accordance with the requirements of the Act, (c) written representations by the detainees to the Governor-General and (d) the reply of the Governor-General. An affidavit was filed on behalf of the Minister of the Interior which stated that the detention order was made in good faith and that the Governor-General was satisfied that the "order is necessary to prevent the persons detained from acting in a manner prejudicial to the state. The grounds of detention served upon the said detainees contain particulars of the previous acts upon which the conclusion of the Governor-General is based".

Judgement

APPEALS against a refusal of application for grant of habeas corpus ad subjiciendum. The facts are set out in full in the judgment of the Supreme Court.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. The appellants were arrested and placed in detention on the 10th and 11th November, 1959, under an order made by the Governor-General and signed on his behalf by the Minister of Interior under section 2 of the Preventive Detention Act, 1958.1

The order reads:

"L.N. 310

THE PREVENTIVE DETENTION ACT, 1958

THE PREVENTIVE DETENTION ORDER (No. 5) 1959

WHEREAS the Governor-General is satisfied that this Order is necessary to prevent the persons in the Schedule to this Order acting in a manner prejudicial to the security of the State:

NOW THEREFORE, in exercise of the powers conferred on the Governor-General by section 2 of the Preventive Detention Act, 1958, it is hereby ordered as follows:

1. (1) This Order may be cited as the Preventive Detention Order (No. 5), 1959.

(2) This Order shall take effect at 7 o'clock in the afternoon of 10th day of November, 1959. [p.526]

2. (1) The persons described in the Schedule to this Order shall be taken into custody and detained under section 2 of the Preventive Detention Act, 1958.

(2) Subject to the power under section 3 of that Act to suspend, vary or revoke this Order, and subject to subsection (3) of section 5 of that Act, the period of which the persons described in the Schedule to this Order are to be detained shall be for a period of five years.

SCHEDULE

Name Further Particulars

1. BAFFOUR OSEI AKOTO .. .. .. .. Senior Linguist to the Asantehene, of House No. O.1. 141, Ashanti New Town, Kumasi.

2. PETER ALEX DANSO ALIAS KWAKU DANSO .. Lorry Driver, of House No. M.E. 70, Kumasi.

3. OSEI ASSIBEY MENSAH .. .. .. .. Storekeeper, House No. M.E. 60, Ashanti New Town, Kumasi.

4. NANA ANTWI BUSIAKO ALIAS JOHN MENSAH .. "Nkofohene" of Kumasi of House No. O.B. 473 Mbrom, Kumasi.

5. JOSEPH KOJO ANTWI-KUSI ALIAS ANANE ANTWI-KUSI .. .. .. .. .. of Kumasi.

6. BENJAMIN KWEKU OWUSU .. .. .. Produce Manager, of House No. B.H. 149, Asafo, Kumasi.

8. ANDREW KOJO EDUSEI .. .. .. .. Auctioneer and Letter Writer of House No. O.1. 165, Ashanti New Town, Kumasi.

9. HALIDU KRAMO .. .. .. .. .. Transport Owner of House No. S. 51, Suame, Kumasi.

Made at Accra this 10th day of November, 1959.

By the Governor-General's Command.

A. E. INKUMSAH

Minister of the Interior

It is admitted that the order is regular on its face, that it was duly signed by the Minister of Interior, and that the appellants are the persons named in it.

The main issues raised by counsel for the appellants are that:

(1) The learned judge acted in excess of jurisdiction in refusing the application without making an order for a formal return.

(2) By virtue of the Habeas Corpus Act of 1816 the court is required to enquire into the truth of the facts contained in "The Grounds" upon which the Governor-General was satisfied that the order was necessary to prevent the appellants from acting in a manner prejudicial to the security of the state.

(3) The Minister of Interior who signed the order for and on behalf of the Governor-General was actuated by malice.

(4) The grounds upon which the appellants were detained do not fall within the ambit of the expression "Acts prejudicial to the security of the state".

(5) By virtue of section 3 of the Criminal Procedure Code, Cap. 10 of the Laws of the Gold Coast (1951 Rev.) now section 1 of the [p.527] Criminal Procedure Code, 1960 (Act 30), the Governor-General is precluded from exercising the powers conferred on him under the Preventive Detention Act, to make an order for the arrest and detention of the appellants without trial except in accordance with the Criminal Procedure Code.

(6) The Preventive Detention Act, 1958, by virtue of which the appellants were detained, is in excess of the powers conferred on Parliament by the Constitution of the Republic of Ghana with respect to article 13 (1) of the Constitution, or is contrary to the solemn declaration of fundamental principles made by the President on assumption of office.

(7) The Preventive Detention Act not having been passed upon a declaration of emergency is in violation of the Constitution of the Republic of Ghana.

On the first issue, it is observed that the application of the appellants for the writ of habeas corpus is supported by affidavit with exhibits disclosing all the material facts essential to determining the regularity of the order, namely: (a) the order of detention, (b) the written information furnished in accordance with the requirements of the Act, (c) the written representations by the detainees to the Governor-General, and (d) the reply of the Governor-General.

There is little wonder therefore that upon service of the copies of the motion and other relevant papers on the respondents the Permanent Secretary of the Ministry of Interior, on behalf of the Minister, filed an affidavit which briefly stated the following additional facts:

"1. Since 1st July, 1959, matters relating to preventive detention, other than the statutory power conferred on the Minister responsible for Defence by section 3 (2) of the Preventive Detention Act, 1958, have been placed within the portfolio of the Minister of the Interior.

2. I am authorised to say that the Preventive Detention Order (No. 5) 1959 (L.N. 310) was made by the Governor-General in good faith under section 2 of the Preventive Detention Act, 1958, and the making therefore was duly signified in good faith by the Minister of the Interior.

3. The reason for the making of the said Order is as set out in the recital thereto, namely that in accordance with the provisions of section 2 of the Preventive Detention Act, 1958, the Governor-General is satisfied that the said Order is necessary to prevent the persons detained acting in a manner prejudicial to the security of the State. The grounds of detention served upon the said detainees contain particulars of the previous acts or conduct upon which the conclusion of the Governor-General is based".

In these circumstances we consider that all the facts relevant for determining whether the writ should issue or not having already been disclosed in the affidavits filed, a formal return was unnecessary and that the learned judge was entitled to dispose of the application upon the affidavits. It is not disputed that (a) the appellants belong to the class of persons to whom the Preventive Detention Act applies, (b) that they are the persons mentioned in the order and (c) the order was made by the competent authority.

It was further contended on behalf of the appellants that where a judge does not order a release under rule 14 of Order 59 of the Supreme [p.528] [High] Court (Civil Procedure) Rules, 1954, he is obliged to order a formal return to the writ. We do not accept this view as a correct interpretation of rule 14 which reads:

"On the hearing of the application the Judge may, in his discretion, order that the person restrained be released, and the order shall be a sufficient warrant to any gaoler, constable or other person for the release of the person under restraint".

We are clearly of opinion that rule 14 does not make it compulsory that in every case the judge should order a formal return. In this view, we are fortified by what Goddard, L.J. (as he then was) said in R. v. Home Secretary, ex parte Greene:2

"To avoid any misunderstanding, I desire to add that, both in the present case and in R.v. Home Secretary, ex p. Lees the applicants themselves exhibited to their affidavit copies of the orders under which they were detained, and no question was raised as to the accuracy of the copies. However, cases may arise where persons who are detained, whether under defence regulations or otherwise, do not, and perhaps cannot, inform the court of the order or warrant under which they are detained. In such a case, if the court sees fit to grant an order nisi or summons to show cause, it will be necessary for the person who has the custody of the prisoner to make an affidavit exhibiting the order or warrant under which he detains the prisoner. Although, as I have pointed out above, the old procedure did not require a return to be verified, at any rate in the first instance, modern practice does require an affidavit, and care should be taken in these cases under the regulations to exhibit the actual order signed by the Secretary of State, which alone is the authority for detaining the prisoner."

On the second issue, the contention is that by virtue of section 3 of the Habeas Corpus Act, 1816,3 the court was bound to enquire into the truth of the facts alleged in the grounds upon which the Governor-General was satisfied that the order was necessary to prevent the appellants acting in a manner prejudicial to the security of the state. There is of course the preliminary question whether the Habeas Corpus Act, 1816,3 is a statute of general application within the meaning of section 14 of the Supreme Court ordinance, 1876.4 In our opinion it is a statute of general application, because the act was law in force in England on the 24th July, 1874, and there are no local circumstances which can possibly operate to exclude its application in this country. The question the Habeas Corpus Act, 1816, raises is one of procedure. At common law the return to a writ of habeas corpus could not be cotroverted but the 1816 Act permitted the court to enquire into the truth of the facts set forth in the return if ordered, except in cases where a detention order is made for the security of the state and the administrative plenary discretion is vested in the person making the order as decided in Liversidge v. Anderson.5 Following the above decision, we hold that although the Habeas Corpus Act, 1816, is a statute of general application it does not apply in this case because the Preventive Detention Act under which the appellants are detained vests plenary discretion in the Governor-General, (now the President), if satisfied that such order is necessary. The court could not therefore enquire into the truth of the facts set forth in the grounds on which each appellant has been detained. [p.529]

In this matter we are guided by the legal principles enunciated in the decisions in Liversidge v. Anderson5; R. v. Home Secretary, ex parte Greene6; R. v. Home Secretary, ex parte Budd.7

In these cases the question raised was whether it was open to any court to enquire into the reasonableness of the belief of the Secretary of State in the matters in which regulation 18B (1) required him to have reasonable cause to believe before a detention order could be made. It will be noted that under the Preventive Detention Act the Governor-General, if satisfied that it is necessary, may make the order for the detention of the person or persons named. On this point, Lord Greene, M.R. in ex parte Budd, supra, said:

"It is clear that, if the courts have no power to inquire into the reasonableness of the belief of the Secretary of State in the matters in which he is required to believe, they can have no power to inquire into the grounds of his satisfaction in regard to matters of which he is required to be satisfied".8

We may also refer to the opinion of the majority of the House of Lords on this issue in Liversidge v. Anderson.

Viscount Maugham said:

"The result is that there is no preliminary question of fact which can be submitted to the courts, and that, in effect, there is no appeal from the decision of the Secretary of State in these matters, provided only that he acts in good faith".9

Lord Macmillan said,:

". . . I am unable to accept a reading of the regulation which would prescribe that the secretary of State may not act in accordance with what commends itself to him as a reasonable cause of belief without incurring the risk that a court of law may disagree with him . . . "10

Lord Wright said:

"On the view which I have formed that there is under reg. 18B no triable issue as to reasonableness for the court, these authorities cease to be of any value. As the administrative plenary discretion is vested in the Home Secretary, it is for him to decide whether he has reasonable grounds, and to act accordingly. No outsider's decision is invoked nor is the issue within the competence of any court."11

Lord Romer said:

". . . . if at the trial the Home Secretary gives rebutting evidence to the effect that, in his opinion, there were reasonable grounds for his belief, his statement, being merely a statement as to his opinion, must necessarily be accepted unless it can be shown that he was not acting in good faith, and the onus of showing this would lie upon the plaintiff."12 [p.530]

Upon the principles so clearly enunciated by the majority of the House of Lords in Liversidge's case, Lord Greene said in ex parte Budd:

"It is scarcely necessary to say that language used in earlier decisions which may suggest that the courts may inquire into the reasonableness of the belief of the Secretary of State cannot now be regarded as correct."13

Upon the production of the order the only question which has to be considered is its legality; if the order is lawful the detention is lawful.

Thirdly, even if good faith is impugned, it is clear from the decided cases, that the burden of proof is on the person who alleges it, and not on the constituted authority, in this case the Minister of Interior, to disprove it. In this matter the main ground alleged for impugning malice is that on the next day after their detention the Minister informed the appellants that the grounds of their detention would be sent to them, and that they would be permitted to see their lawyers to make representations, and further that the government wished to do them as much justice as possible. It is further alleged that the Minister addressed the appellants thus: "Some of you may not be guilty of the crimes charged, and if you make representations your cases would be considered," and further that in answer to a remark by one of the appellants that he had seen the "warrant of arrest" with many names on it, some of them struck out, the Minister replied: "You sit down in Kumasi and Alex Osei holds a pistol in each hand shooting at women in the streets of Kumasi. When we were fighting the British for freedom we were arrested." Upon this, it is urged that because there is no return filed or no denial by the Minister concerned there is therefore evidence from which malice must be inferred.

Assuming that the Minister made the statement attributed to him, it cannot be held to be evidence of malice; on the contrary it could support the view that the Minister acted promptly by informing the appellants of their rights and advised them that under the Act they were entitled to make representations to the Governor-General, which advice the appellants acted upon. The fact that their representations to the Governor-General did not result in their release is not evidence of malice nor is the allegation that the Minister had accused them of complicity in street shooting in Kumasi. We agree with the opinion expressed by the learned judge of the court below that these allegations do not constitute evidence of bad faith or malice.

The courts must presume that high officers of state have acted in good faith in the discharge of their duties. It will be wrong in principle to enquire into the bona fides of Ministers of State on a mere allegation of bad faith by a petitioner. The court can only look into allegations of bad faith if there is positive evidence, which is singularly absent in this case?-Nakkuda Ali v. M.F. De S. Jayaratne.14

It is fourthly contended that the grounds for the detention served on the appellants did not disclose that they were suspected of preparing to commit acts prejudicial to the security of the state, within the ordinary [p.531] meaning of the expression "security of state" and that the intention of the Preventive Detention Act was to prevent persons acting in a manner prejudicial to the defence of this country, i.e. from foreign power.

It is clear from section 2 of the Preventive Detention Act, 1958, that power to make a detention order is not limited to the defence of Ghana against a foreign power; on the contrary the section specifically empowers the Governor-General to make such an order in respect of:

"(a) the defence of Ghana,

(b) the relations of Ghana with other countries, or

(c) the security of the State."

We cannot therefore accept the narrow interpretation which counsel for the appellants seeks to place on the purpose of the Act. We agree with appellants' counsel that as a guide to what acts may be adjudged to fall within the expression "the security of the state" one may look at those offences under Part IV, Chapter 1, of the Criminal Code, 1960,15 or under Title 23 of the Criminal Code, Cap. 9,16 now repealed, under the heading "Offences against the safety of the State." It will be observed that this includes a large number of offences which have nothing to do with the defence of Ghana or with foreign countries, but in respect of which the Governor-General may if satisfied that the order is necessary, make an order under the Preventive Detention Act, 1958. The object of the Act is to restrain a person from committing a crime which it is suspected he may commit in the future. Its aim is to prevent the commission of acts which may endanger public order and the security of the State.

The grounds for the detention of each of the appellants attached to the affidavit in support of the application for habeas corpus are:

1. "BAFFOUR OSEI AKOTO

Acting in a manner prejudicial to the security of the State, in that you have encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and have associated with persons who have adopted a policy of violence as a means of achieving political aims in those Regions.

2. PETER ALEX DANSO alias KWAKU DANSO

Acting in a manner prejudicial to the security of the State, in that you have consistently and in particular in October 1959, advocated and encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and generally have adopted, and have associated with other persons who have adopted a policy of violence as a means of achieving political aims in those Regions.

3. OSEI ASSIBEY MENSAH

Acting in a manner prejudicial to the security of the State, in that you have advocated and encouraged violence in the Ashanti and Brong-Ahafo Regions and generally have adopted and have associated with other persons who have adopted, a policy of violence as a means of achieving political aims in those Regions. [p.532]

4. NANA ANTWI BUSIAKO alias JOHN MENSAH

Acting in a manner prejudicial to the security of the State, in that you have consistently and in particular in October, 1959, advocated and encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and generally have adopted, and have associated with other persons who have adopted, a policy of violence as a means of achieving political aims in those Regions.

5. JOSEPH KOJO ANTWI-KUSI alias ANANE ANTWI-KUSI

Acting in a manner prejudicial to the security of the State, in that you have consistently and in particular in September, 1959, advocated and encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and generally have adopted, and have associated with others who have adopted, a policy of violence as a means of achieving political aims in those Regions.

6. BENJAMIN KWAKU OWUSU

Acting in a manner prejudicial to the security of the State, in that you have encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and have associated with persons who have adopted a policy of violence as a means of achieving political aims in those Regions.

7. ANDREW KOJO EDUSEI

Acting in a manner prejudicial to the security of the State, in that you have consistently and in particular in April, 1959, advocated and encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and generally have adopted and have associated with other persons who have adopted a policy of violence as a means of achieving political aims in those Regions.

8. HALIDU KRAMO

Acting in a manner prejudicial to the security of the State, in that you have encouraged the commission of acts of violence in the Ashanti and Brong-Ahafo Regions and have associated with persons who have adopted a policy of violence as a means of achieving political aims in those Regions."

It cannot be denied that in these circumstances, the Governor-General may order the detention of these persons if satisfied that the order is necessary to prevent the persons concerned from acting in a manner indicated which cannot fail but be prejudicial to the security of the state. Where the very basis of law is sought to be undermined and attempts are made to create a state of affairs which will result in disruption, and make it impossible for normal government to function, the Governor-General would be justified in evoking the special powers under the Preventive Detention Act to prevent those whom he is satisfied are concerned in it, acting in a manner prejudicial to the security of the state.

Fifthly, in our view, section 3 of the Criminal Procedure Code,17 to which we have been referred which reads:

"(1) All offences under the Criminal Code shall be enquired into, tried and other wise dealt with according to the provisions of this Code.

(2) All other offences shall be enquired into, tried and otherwise dealt with according to the provisions of this Code, subject, however, to the provisions of any Ordinance regulating the manner or place of enquiry into, trial or other dealing with such offences" [p.533] merely makes provisions for trial of offences committed, but cannot operate to restrain the exercise of powers of detention for prevention of acts calculated to be prejudicial to the safety of the State. The mischief aimed at by the Preventive Detention Act is in respect of acts that may be committed in the future, whereas the Criminal Code concerns itself with acts which have in fact been committed.

By notice filed during the pendency of this appeal, counsel for the appellants invoked the powers of the Supreme Court under section (2) of Article 42 of the Constitution to declare the Preventive Detention Act invalid on the ground that it was made in excess of the power conferred on Parliament.

Counsel submitted:

"1. That the Preventive Detention Act, 1958, was made in excess of the power conferred on Parliament by or under the Constitution with respect to Article 13 (1) of the Constitution, that until that Article is repealed by the people, (a) freedom and justice shall be honoured and maintained, (b) no person should suffer discrimination on grounds of political belief, and (c) no person should be deprived of freedom of speech, or of the right to move and assemble, or of the right of access to the courts of law.

2. That the Preventive Detention Act, 1958, is contrary to the Declaration of Fundamental Principles solemnly subscribed to by KWAME NKRUMAH on accepting the call of the people to the high office of PRESIDENT OF GHANA and to which HE adhered upon that declaration, namely that "The powers of Government spring from the will of the people and should be exercised in accordance therewith", in particular, with reference to the honouring and maintaining of freedom and justice, prohibition of discrimination on grounds of political belief, non-deprivation of the freedom of speech, or of the right to move and assemble without hindrance or of the right of access to the courts of law.

3. That the Preventive Detention Act, 1958, which was not passed upon a declaration of emergency or as a restriction necessary for preserving public order, morality or health, but which nevertheless placed a penal enactment in the hands of the President to discriminate against Ghanaians, namely to arrest and detain any Ghanaian and to imprison him for at least five years and thus deprive him of his freedom of speech, or of the right to move and assemble without hindrance, or of the right of access to the courts of law, constitutes a direct violation of the Constitution of the Republic of Ghana and is wholly invalid and void."

Article 42 (2) reads:

"The Supreme Court shall have original jurisdiction in all matters where a question arises whether an enactment was made in excess of the powers conferred on Parliament by or under the Constitution and if any such question arises in the High Court or an inferior court, the hearing shall be adjourned and the question referred to the Supreme Court for decision."

As the legal issues arising from those questions could not properly be raised and/or determined at the High Court we deemed it appropriate to grant the leave sought, and the issues have been accordingly argued in the course of this appeal.

All the grounds relied upon appear to be based upon Article 13 of the Constitution. It is contended that the Preventive Detention Act is invalid because it is repugnant to the Constitution of the Republic of [p.534] Ghana, 1960, as Article 13(1) requires the President upon assumption of office to declare his adherence to certain fundamental principles which are:

"That the powers of Government spring from the will of the people and should be exercised in accordance therewith.

That freedom and justice should be honoured and maintained.

That the union of Africa should be striven for by every lawful means and when attained, should be faithfully preserved.

That the Independence of Ghana should not be surrendered or diminished on any grounds other than the furtherance of African unity.

That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief.

That Chieftaincy in Ghana should be guaranteed and preserved.

That every citizen of Ghana should receive his fair share of the produce yielded by the development of the country.

That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion, of speech, of the right to move and assemble without hindrance or of the right of access to courts of law."

This contention, however, is based on a misconception of the intent, purpose and effect of Article 13(1) the provisions of which are, in our view, similar to the Coronation Oath taken by the Queen of England during the Coronation Service. In the one case the President is required to make a solemn declaration, in the other the Queen is required to take a solemn oath. Neither the oath nor the declaration can be said to have a statutory effect of an enactment of Parliament. The suggestion that the declarations made by the President on assumption of office constitute a "Bill of Rights" in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.

We may now consider the effect of the Constitution of the Republic of Ghana, 1960, with regard to the Preventive Detention Act, 1958, enacted by the parliament of Ghana under the Ghana Constitution Order in Council, 1957.18 We observe, that by the Constitution (Consequential Provisions) Act 196019 enacted by the same Constituent Assembly which enacted the Republican Constitution, the Preventive Detention Act, 1958 was amended thus: In section 2, in subsections (3), (4) and (5) of section 3, and in subsection (2) of section 4, for "Governor-General" in each place where it occurs substitute "President". Also that by Article 40 of the Republican Constitution, 1960, the laws of Ghana comprise, inter alia, enactments in force immediately before the coming into operation of the Constitution, a fortiori, the Preventive Detention Act, 1958 being law in force in Ghana at the time the Constitution was enacted and having been amended by the same body which enacted the said Constitution, it cannot be denied that it must have been the intention of the people of Ghana by their representatives gathered in a Constituent Assembly to retain the Preventive Detention Act, 1958 in full force and effect. The contention that the legislative power of Parliament is limited by Article 13 (1) of the constitution, is therefore in direct conflict with express [p.535] provisions of Article 20. We hold that the Preventive Detention Act does not constitute a violation of the Constitution of the Republic of Ghana, consequently it is neither invalid nor void.

We are of opinion that the effect of Article 20 of the Constitution which provides for "The Sovereign Parliament", is that subject to the following qualifications, Parliament can make any law it considers necessary. The limitations are that (a) Parliament cannot alter any of the entrenched articles in the Constitution unless there has been a referendum in which the will of the people is expressed; (b) Parliament can however of its own volition, increase, but not diminish the entrenched articles; (c) the articles which are not entrenched can only be altered by an Act which specifically amends the Constitution.

It will be observed that Article 13 (1) is in the form of a personal declaration by the President and is in no way part of the general law of Ghana. In the other parts of the Constitution where a duty is imposed the word "shall" is used, but throughout the declaration the word used is "should". In our view the declaration merely represents the goal which every President must pledge himself to attempt to achieve. It does not represent a legal requirement which can be enforced by the courts.

On examination of the said declarations with a view to finding out how any could be enforced we are satisfied that the provisions of Article 13 (1) do not create legal obligations enforceable by a court of law. The declarations however impose on every President a moral obligation, and provide a political yardstick by which the conduct of the Head of State can be measured by the electorate. The people's remedy for any departure from the principles of the declaration, is through the use of the ballot box, and not through the courts.

We do not accept the view that Parliament is competent to pass a Preventive Detention Act in war time only and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the Constitution, and if by it, Parliament can pass laws to detain persons in war time there is no reason why the same Parliament cannot exercise the same powers to enact laws to prevent any person from acting in a manner prejudicial to the security of the State in peace time. It is not only in Ghana that Detention Acts have been passed in peace time.

Finally, the contention that the Preventive Detention Act, 1958, is contrary to the Constitution of the Republic of Ghana is untenable and for the reasons indicated the appeal is dismissed.

Decision

<P>Appeal dismissed. </P>

Plaintiff / Appellant

Dr. J.B. Danquah

Defendant / Respondent

G. Bing (Attorney-General) with him A.N.E. Amissah

Referals

(1) R. v. Home  Secretary, ex parte Greene [1942] 1 K.B. 87; [1941] 3 All E.R 104, C.A.

(2) Liversidge v. Anderson [1942] A.C. 206; [1941] 3 All E.R. 338, H.L.

(3) R. v. Home Secretary, ex parte Budd [1942] 2 K.B. 14; [1942] 1 All E.R. 373, C.A.

(4) Nakkuda Ali v. M. F. De S. Jayarakne [1951] A.C. 66; 66 T.L.R. (Pt.2) 214, P.C.

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