Banful and Another Vrs Attorney General and Another (J1 7 of 2016) [2017] GHASC 21 (22 June 2017);

Material facts:

The government of Ghana agreed with the government of the United States in 2016 to transfer two persons, profiled as terrorists and former detainees of Guantanamo Bay, into Ghana for settlement. The agreement was concluded by the executive branch of government without parliamentary approval/ratification. The plaintiff contends that per article 75 of the 1992 constitution of Ghana, the agreement between Ghana and the United States required parliamentary ratification, and the president’s failure to obtain parliamentary ratification was thus unconstitutional.

Issues:

1. Whether or not the Agreement between the government of Ghana and the United States of America transferring the two persons into Ghana required parliamentary approval in accordance with Article 75 of the 1992 Constitution of the Republic?

2. Whether the failure of the president to obtain parliamentary approval prior to the transfer of the two persons into Ghana is unconstitutional.

3. Whether or not the President …breached Article 58(2) …by agreeing with the government of the (USA) to have the two persons transferred to the Republic of Ghana?

Arguments of the Plaintiff:

1. The agreement between the president of Ghana and the United States government falls within the type of agreements contemplated by article 75 of the 1992 constitution, and ought to have been subjected to parliamentary ratification.

2. That the agreement violates sections 12 and 35 of the Anti-Terrorism Act, 2008 (Act 762) and section 8(1)(h) of the Immigration Act, 2000 (Act 573) which prohibits the harbouring of any person suspected of terrorism.

3. That the settlement of the two persons in Ghana is a threat to national security.

4. That the substance of the agreement with the United States falls within the types of agreements contemplated by article 75 of the 1992 constitution, irrespective of the label the defendant chooses to give the agreement.

Arguments of the Defendant:

1. That article 75 does not cover every agreement Ghana may enter. Article 75, they contend covered agreements or Conventions, and that Ghana’s agreement with the United States was merely a note verbale. They contend that note verbales are “purely administrative and confidential in nature and are not to be approved by Parliament and are therefore not caught under Article 75….”

2. That the term “agreement” as used in article 75 must take its meaning from the “company it keeps”, thus treaty and convention.

3. That the violation of the Anti-Terrorism Act or the Immigration Act would not justify the invocation of the original jurisdiction of the Supreme Court.

Holdings:

1. The agreement between the government of Ghana and the United States government required parliamentary ratification.

2. The failure of the executive arm to obtain parliamentary approval prior to the transfer of the two persons to Ghana is unconstitutional.

Ratio Decidendi:

The court in a majority decision reasoned that when the government of Ghana binds the republic of Ghana to certain obligations in relation to another country, an international agreement comes into existence and is covered by article 75. Per Akuffo CJ, the substance of the agreement between the government of Ghana and the United States revealed such binding obligations on Ghana, irrespective of the text of the agreement was couched.