New Patriotic Party v. Inspector-General of Police and Others [1992-93] 2 GLR 586–628

Material Facts:

The plaintiff, the New Patriotic Party (NPP), is a registered political party in Ghana. It invoked the original jurisdiction of the Supreme Court for a declaration that sections 7, 8, 12(c), and 13 of the Public Order Decree 1972 (NRCD 68) are inconsistent with article 21(1)(d) of the 1992 Constitution and are therefore null and void.

These sections respectively give power to the Minister for the Interior to prohibit the holding of public meetings, require that persons wanting to assemble (to demonstrate or celebrate a native custom) must obtain prior permission from the police, give power to the superior police officer to stop or disperse any demonstration undertaken without a permit, and make it an offence to hold such public gatherings without permission.

Acting under the authority of these provisions, the plaintiff submits that their peaceful demonstration to protest the 1993 budget of the Government was violently broken up by the police, and some of those taking part in the demonstration were arrested and charged before an Accra Circuit Court with demonstrating without a permit and failing to disperse contrary to sections 8, 12(c), and 13 of the Public Order Decree 1972 (NRCD 68) .

Issue:

Whether or not sections 7, 8, 12(c), and 13 of the Public Order Decree 1972 (NRCD 68) are inconsistent with and a contravention of the 1992 Constitution, particularly article 21(1)(d) thereof, and are therefore null, void, and unenforceable.

Argument of the Plaintiff (NPP):

1. Under article 21(1)(d) of the 1992 Constitution, no permit is required from the police or any authority for holding a rally or for assembly, and the requirement of such a permit by sections 7, 8, 12(c), and 13 of NRCD 68 is unconstitutional and an affront to the right to assemble.
2. Any provision of a statute that gives power to a person to refuse a rally being held in derogation of the individual's right granted by the constitution is unconstitutional.
3. Any restriction contained in article 21(4)(c)should not be taken as giving any authority or person the right to refuse a rally.

Arguments of the Defendant (Deputy Attorney General):

1. That the sections are reasonable and lawful restrictions on the freedom of assembly granted under article 21(1)(d) of the 1992 Constitution. These restrictions were necessary to enable the police to prevent actions that are prejudicial to the rights of others.
2. The rights contained in article 21(1)(d) are not absolute but are subject to the restrictions contained in article 21(4). That the sections are reasonable restrictions required by article 21(4)(c)
3. A judgement in favour of the plaintiffs would make the work of the police more difficult, as people could gather in large numbers at any time and disturb the public's peace and security.

Holding:

Sections 7, 8, 12(c), and 13 of NRCD 68 are inconsistent with article 21(1)(d) of the 1992 Constitution and are therefore null and void.

Ratio Decidendi:

Hayfron-Benjamin JSC gave the leading judgement of the court and considered the consistency of each of the sections with the freedom of assembly granted in article 21(1)(d).

Section 7(1) of NRCD 68 gives the Minister for the Interior the power to prohibit the holding of public meetings or processions for a specified period in a specified area. In the opinion of his lordship, this provision generally creates a prior restraint on the freedom of the citizen to form or hold a meeting, procession, or demonstration in a public place. Their lordships agreed that "when such a power is exercised by the minister it becomes a clog on the citizen’s freedom to assemble, process, and demonstrate" and concluded that section 7 constitutes a prior restraint on the freedom of assembly granted under article 21(1)(d) and is therefore unconstitutional and void. In addition, section 7(2) also requires that no public meeting or procession can be held "except with the written consent of the Commissioner or any person authorised by him." This subsection is also unconstitutional because it

gives the Commissioner an unfettered right to refuse his consent. To invest the Commissioner with such unfettered discretion is to place those who assert their constitutional rights of assembly, procession and demonstration at his mercy. It gives him the awesome power to decide who shall be permitted to approach those places mentioned in the Decree. The sub-section 7(2) is also clearly unconstitutional.

Section 8 of NRCD 68also provided that the holding of all public processions and meetings and the public celebration of any traditional custom shall be subject to the obtention of prior permission or permit from the police. Hayfron JSC considered the requirement of a permit unconstitutional because

The object of the consent or permit requirement within the intendment of section 7 and 8 of the Decree is to give leave for the performance of an act which, without such consent or permit, is forbidden by law. The necessary implication therefrom is that under the Public Order Decree, meetings, processions and demonstrations are prohibited by law unless sanctioned by the police or other such authority. This proposition - and I cannot think of a better statement of the legal position clearly violates the enshrined provisions of article 21(d) as it constitutes a serious abridgement of the human rights of the citizen. Where any law or action is in conflict with the letter and spirit of the constitution, which is the fundamental law of the land, then to the extent of such conflict or inconsistency that law is unconstitutional, void and unenforceable.

Bamford-Addo JSC expressed a similar view. Her lordship stated that the word freedom, per the Oxford dictionary, refers to the condition of being free, to act, speak, etc. as one pleases without interference, or the state of being unrestricted in one’s actions. On the other hand, the word permit may mean allowing someone to do something or an official document that gives somebody the right to do something. Consequently,

Freedom to act and the obligation to obtain a permit before acting are contradictory and direct opposites and they cannot co-exist. If one is not free to act without permission the result is that one is not free.

Therefore, if article 21(1)(d)a gives an unqualified freedom to hold demonstration but s 8 of NRCD 68 requires one to obtain a permit before the enjoyment of this freedom, then clearly, the latter law does conflict with the constitution and is inconsistent with it, and by virtue of article 1(2) would be null and void. If it were not so the inalienable fundamental human right granted under article 21(1)(d) would be interfered with and in certain cases would even be completely taken away by operation of s 8 of NRCD 68, contrary to the stipulation in the constitution that fundamental human rights cannot be derogated from or taken away from any person.

Section 12 of NRCD 68 gives the police the power to stop and disperse any public meetings that commence without a permit. Hayfron JSC noted that

Such absolute power conferred upon a police or administrative officer or a Minister of State to abridge the fundamental human rights of the citizen is unconstitutional. When citizens meet or process in a public place in pursuance of their constitutional right to form or hold meetings and processions they are only subject to the criminal law which for the present is contained in our Criminal Code 1960 (Act 29).

On section 13, owing to the holding that organising and embarking on a demonstration without a police permit is not a crime, the provision in section 13 that makes it an offence to organise a demonstration without a permit also becomes void.

In response to the defendant’s argument that the sections are justifiable under article 21(4)(c), Bamford Addo JSC stated that once the sections are null and void ab initio, they cannot be considered existing laws, much more laws which are reasonably justifiable in terms of the spirit of the constitution. Hayfron JSC equally noted that the provision in article 21(4)

are mere restrictions, and any law that extends to give authority to any person or persons to prohibit or grant permit to other persons to take part in processions and demonstrations curtails the freedom of such persons and cannot be said to be justifiable in terms of the spirit of the constitution

On the argument of the defendant that declaring the provisions null and void would undermine the work of the police, Bamford-Addo JSC stated:

That may be so but this is the price we have to pay for democracy and constitutional order. The police, like any other organ of Government, are required to operate within the four walls of the constitution, but with their wide crime preventing powers, I believe they can rise up to the occasion and satisfactorily discharge their duties within constitutional limits despite any difficulties.

In any case article 200 seems to have envisaged and taken care of any difficulties the police might encounter in having to work under a new constitutional order. It made provision for the police to be equipped and maintained to perform its traditional role of maintaining law and order.

In conclusion, sections 7, 8, 12, and 13 were, pursuant to article 1(2) of the 1992 Constitution, all null and void as they were contrary to the freedom of assembly granted under article 21 of the 1992 Constitution.