Statement of Facts:
In this case, the plaintiff essentially sought a declaration that a certain agreement –The Defence Co-operation, the Status of United States Forces and Access to and Use of Agreed Facilities and Areas in the Republic of Ghana contravened the constitution because it was not duly executed (unsigned) and that additionally, the provisions of the said agreement were not in the national interest of the country.
The defendant, on the other hand, argued that pursuant to Article 75 of the 1992 Constitution, unsigned copies of the Agreement were submitted to Parliament for ratification and the same were ratified on 24th March 2018. Defendant argued that this was done in order to take on board any inputs by Parliament being the representatives of the people of Ghana.
Article 75(2) states
A treaty, agreement or convention executed by or under the authority of the President shall be
subject to ratification by—
(a) Act of Parliament; or
(b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament
Holding:
The court held in favour of the defendants, dismissing the plaintiff’s action as without merit.
A joint memorandum of issues was agreed as follows:
a. Whether or not the ratification of the Defence Co-operation Agreement by Parliament contravenes Article 75 of the Constitution.
b. Whether or not the submission of an unsigned international agreement to Parliament for ratification by the Executive contravenes Articles 75 and 58 (1) of the 1992 Constitution.
c. Whether or not the Defence Co-operation Agreement between the Government of Ghana and the United States of America contravenes Articles 1 (2), 2, 11, 33, 125, 130, 135, 140, 75, 73, of the 1992 Constitution and
d. Whether or not the supposed Defence Co-operation Agreement between Ghana and the United States of America in respect of which Parliament passed a resolution on March 24, 2018 is in the national interest.
Reasoning:
a. In addressing issues a, b and c:
- The court relied on the famous dictum of Justice Sowah in Tuffour v Attorney General where he urged against a doctrinaire approach in construing the provisions of the constitution and the provisions of Section (10) (4) of the Interpretation Act, 2009, Act 792 which mandates the interpretation of the constitution in a manner that promotes rule of law and avoids technicalities of form which defeat the substance and purpose of the provisions. The court, therefore, rejected the “mechanical” approach being urged on it by the plaintiffs, stating that the Agreement was in substance one that created legal obligations between the parties despite being unsigned.
Justice Marful Sau:
We are of the opinion that we will be doing a disservice to this country should we apply a mechanical approach in interpreting the phrase “executed agreement” in Article 75, as urged on us by the Plaintiff, who is only looking at the form of the Agreement and not the substance. In substance we are very much convinced that the document which was submitted by the Executive to Parliament though unsigned, was an agreement creating legal obligations between the Republic of Ghana and the United States of America. We therefore affirm that the said agreement annexed by the Plaintiff to his Statement of Case as “Exhibit A”, though unsigned still belonged to the category of agreements that required Parliamentary ratification as stipulated under Article 75 of the 1992 Constitution.
- The court also in attempting to find the intentions of the framers for the Provision in Article 75 of the 1992 Constitution made reference to the 1969 Constitution, which held the roots of the modern-day ratification provisions in the Constitution 1992 and posited that the whole idea behind Article 75 provision was to subject any such international agreements to parliamentary scrutiny by the people’s representatives- so that the president could not create obligations for Ghana without recourse to the people. The course questions the utility of parliament to review an Agreement if is was already signed.
Justice Marful Sau:
We are of the view that the intentions of the framers of all our past Constitutions including the 1992 Constitution was to ensure that any international agreement entered into by the President shall be subjected to Parliamentary ratification or approval. This in our minds was to guarantee that the people of Ghana, through their representative in Parliament had an opportunity to scrutinize such agreements before their implementation.
….In other words, the framers wanted to avoid a governance situation where the executive would commit the country to international obligations without consulting Parliament which represents the people, hence the decision by the executive to submit to Parliament an unsigned copy of the Agreement. In any case, if the Agreement is already signed, what will be the role of Parliament in ratifying or rejecting it?
- The court indicated that it was bound by its decision in Margaret Banful and Henry Nana Boakye vs. The Attorney–General, Writ No.J1/7/2016, where it was held (applying the same authorities and aids to interpretation) that even “”Note Verbals”” exchanged between the Governments of Ghana and the United States of America, were in the category of agreements contemplated by Article 75 of the 1992 Constitution, which therefore ought to have been submitted to Parliament for ratification.
b. In addressing issue “d”, the court reasoned that:
- The clauses which the plaintiff purported to have been ousting the jurisdiction of the courts were merely regular Dispute Resolution Clauses, which fashioned out how the parties to the Agreement would attempt to settle any dispute that arises from the implementation of the Agreement. They just provided that the parties try to settle amicably first before taking the matter out to third parties.
- The Agreement in question was a renewal of an earlier one made between the Government of Ghana and the United States of America, to safeguard the national security of both States in view of increased terrorist activities on the international scene and the West Africa sub-region.Article 35(2) of the 1992 Constitution provides that is key for the state to take such steps: The State shall protect and safeguard the independence, unity and territorial integrity of Ghana, and shall seek the well-being of all her citizens
