Re Akoto and 7 Others[1]
Statement of Facts: The appellants were arrested and detained under the Preventive Detention Act, 1958 issued by the Governor General and signed by the minister of interior. They brought a case before the High Court for writs of Habeas Corpus, but the High Court refused them. They subsequently appealed against the decision of the High Court at the Supreme Court.
Baffour Osei Akoto, Senior Linguist to the Asantehene, and the 7 others acting through their counsel, J. B. Danquah, sought the following declarations:
- That the High Court Judge acted in excess of jurisdiction without making an order for a formal return.
- That by virtue of the Habeas Corpus Act, 1816, the Court is required to look into the truth of the facts leading to the arrest and detention of the appellants.
- That the minister of the interior who signed the order on behalf of the Governor General acted out of malice; and that the grounds upon which the appellants were detained do not fall within the meaning of the expression “Acts prejudicial to the security of the State”.
They further prayed the Court to so declare:
- That the Governor General is precluded from exercising the powers conferred on him by the Preventive Detention Act, 1958 to make an order for the arrest and detention of the appellants without trial- except in accordance with the Criminal Procedure Code, 1960;
- That the Preventive Detention Act by virtue of which the appellants were detained is in excess of the powers conferred on Parliament by the Constitution of Ghana, specifically Article 13(1) or it is contrary to the solemn declaration of fundamental principles made by the President on the assumption of office.
- That the PDA not having been passed under a declaration of emergency is in violation of the Constitution of the Republic of Ghana.
Article 13 provided:
“”13 (1) Immediately after his assumption of office the President shall make the following solemn declaration before the people – On accepting the call of the people to the high office of President of Ghana I solemnly declare my adherence to the following fundamental principles – 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 no person should suffer discrimination on ground of sex, race, tribe, religion or political belief…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 or speech, of the right to move and assemble without hindrance or of the right of access to courts of law. That no person should be deprived of his property save where the public interest so requires and the law so provides.
Holdings:
The Supreme Court held that the declaration by the President on the assumption of office, was similar to the Coronation Oath of the Queen of England and that such a declaration did not constitute a bill of rights, creating legal obligations enforceable in a court of law.
The Supreme Court delivered itself of an opinion which very much influenced the interpretation placed on article 13(1).
Per Sir Arku Korsah CJ:
In our view the declaration merely represents the goal which every President must pledge himself to attempt to achieve… 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.â€
Rule 14 of Order 59 of Supreme Court Civil Procedure Rules, 1954 provided that the judge may in his discretion, upon hearing of the application, order the release of the person restrained and the gaoler or constable shall cause the release of the person under restraint. The law does not make it compulsory for the judge to order a formal return in every case. Since it is at the discretion of the judge, a formal return was unnecessary.
Although, the Habeas Corpus Act, 1816 permitted the Court to enquire into the truth of the facts contained in the return, there is an exception. The exception is when the detention order is made for the security of the State and the administrative discretion is vested in the person making the order as decided in Liversidge v. Anderson.[2] The PDA vests the discretion into the person who is making the order.
It was held that the Court could not enquire into the truth of the fact because the detention is at the discretion of the president in accordance to the PDA supported by the Habeas Corpus Act, 1816 which exempted an enquiry which involves detention relating to the security of the State. If a person alleges that the minister acted out of malice, the burden of proof is upon the person who alleges. The ground upon which the allegation was made was an advice given promptly by the minister. The appellants even acted on that advice. Although they could not get a release upon acting on the advice does not mean the minister acted out of malice. The evidence could not support the allegation of bad faith. And the court could not look into allegations of bad faith because of lack of positive evidence in the case.
Section 2 of the PDA gives power to make a detention order not limited to the defence of Ghana against foreign powers. But it includes – the defence of Ghana; the relations of Ghana with other countries; the security of the State. The Court took the position that the counsel for the appellants placed a narrow interpretation on the purpose of the PDA. The offences listed under Part IV, chapter 1 of the Criminal Code, 1960 or under title 23 of the Criminal Code, Cap 9, now repealed provides that offences against the safety of the State include a large number of offences which have nothing to do with the defence of Ghana or with foreign countries but the Governor General may make an order under the PDA if he is satisfied that the order is necessary.
The object of the Act is to prevent people from committing crimes which may endanger public order and the security of the State. If the Governor General would be justified to activate the powers under the PDA to prevent persons whom he is satisfied there are attempts to cause disruption in the governance of the State. Therefore, the counsel for the appellant interpretation that security of the state means defence of Ghana against foreign powers is a narrow one.
The case is also famous for the submissions of JB Danquah and Geoffery Bing. Find the full material in our Constitutional Law Library.
[1] Re Akoto and 7 Others (1961) GLR 523-535
[2] Liversidge v. Anderson
