PEOPLE’S POPULAR PARTY v. ATTORNEY-GENERAL [1971] 1 GLR 138

DIVISION IN THE HIGH COURT, ACCRA

DATE: 23 DECEMBER 1970

BEFORE: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Re Meister Lucius and Bruning,Ltd.[1914] W.N.390;31 T.L.R.28;59 S.J. 25.

(2) Point of Ayr Collieries, Ltd. v. Lloyd-George [1943] 2 All E.R. 546, C.A.

(3) Liversidge v. Anderson [1942] A.C. 206; [1941] 3 All E.R. 338; 110 L.J.K.B. 724; 116 L.T.1; 58 T.L.R. 35; 85 S.J. 439, H.L.

(4) In re Okine [1959] G.L.R. 1.

(5) Shirttleworth v. City of Birmingham (1969) 394 U.S. 147; 22 L.Ed. 2d. 162; 89 S.Ct. 935, S.C.

(6) Captan v. Minister of Interior, Supreme Court, 16 January 1970, unreported; digested in (1970) C.C. 35.

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NATURE OF PROCEEDINGS

APPLICATION by way of an originating motion for an order to compel the police to issue the applicants with a permit authorising them to hold a procession in a public place. The facts are fully set out in the

Judgment of the court.

COUNSEL

N. O. Annan (J.F.S. Hansen with him) for the applicants.

S. S. Okunor, Director of Public Prosecutions, for the Attorney-General.

JUDGMENT OF HAYFRON-BENJAMIN

Article 28 of the Constitution, 1969, provides that:

“(1) Where any person alleges that any provision of articles 12 to 27 inclusive of this Constitution has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the High Court of Justice for redress.

(2) Pursuant to the provisions of the immediately preceding clause, the High Court of Justice shall have power to issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing, or securing the enforcement of any of the provisions of the said articles 12 to 27 inclusive to the protection of which the person concerned is entitled.”

Articles 12 to 27 deal with the liberty of the individual and entrench the fundamental human rights in our Constitution. Anyone with a nodding knowledge of the recent history of Ghana will appreciate the reasons that led the Constituent Assembly to entrench these clauses in the Constitution and make them, by article 169 (4) (b), not amenable to change. It is not for the courts to question the wisdom or unwisdom of the drafters of the Constitution. All that we are concerned with is to give effect to these provisions and carry out their manifest purposes without regard to temporary or passing expediency.

The powers conferred on the High Court by article 28 (2) are wide in the extreme, but they seem to me to reflect the general intention of the drafters that the courts should be the custodians and protectors of the liberties of the individual citizens of Ghana. It is a duty which is at once onerous and honourable. In discharging these duties the courts must tread the narrow, humble but firm path between the Scylla of over-zealousness and the Charybdis of judicial timidity. Where the liberty of the citizen has been invaded they should by all means offer protection, but they should not try to find an invasion where none has occurred.

The gravamen of the applicants’ complaint is that the police as personified in the Inspector-General of Police have interfered with their rights of freedom of movement, assembly and association by refusing them a permit to mount a procession through the streets of Accra to protest against the sale of arms by Britain and France to the Union of South Africa and the proposed dialogue between the Ivory Coast and [p.141] of [1971] 1 GLR 138

South Africa on the question of apartheid. They claim that in refusing them the permit, the police discriminated against them, as the same police had permitted the citizens of the United Kingdom resident in Ghana to organise a protest march in Accra against the sale of arms by the United Kingdom to the Union of South Africa. They therefore sought the reliefs which can best be stated in their own words. They sought an order:

“(1) To prohibit the Ghana Police Service as such and any member thereof from hindering the applicants and all other members of the People’s Popular Party from the enjoyment of their freedom and right of assembly and association to hold protest marches in Accra.

(2) To restrain the Ghana Police Service and any member thereof from interfering with or depriving the

People’s Popular Party and all other members thereof of their freedom of movement by ordering the grant of the applicants of permits to hold protest marches in Accra.

(3) Quo warranto to question the rights of the Ghana Police Service in refusing to grant to the applicants permits to hold protest marches on 12 and 19 November 1970, and thereby depriving the applicants of their constitutional rights to freedom of assembly, of association and movement contrary to articles 23 and 24 of the Constitution on the grounds set forth in the accompanying affidavit and for such further order or orders as to the court may seem meet.”

The grounds on which the applicants rely to sustain their pleas for these reliefs can be found in the facts deposed to by the Administrative Secretary of the People’s Popular Party in his affidavit dated 28 November 1970 and filed on even date. He says on oath:

“(2) That on 7 November 1970, the People’s Popular Party applied to the Inspector-General of Police for the grant of a public procession permit to hold a protest march on Thursday 12 November 1970 from 9a.m. to 3.30 p.m. to both the British and Ivory Coast Embassies, Accra, on the proposed sale of arms and dialogue by their respective governments with the South African Government. Copy annexed and marked exhibit A.

(3) That on 10 November 1970, the Inspector-General of Police replied:

‘Your request for permission to hold protest march on 12 November 1970 is not approved. No permit will therefore be granted for that purpose.’

(Copy annexed and marked exhibit B.)

(4) Again on 12 November 1970, the People’s Popular Party sent another application to the Inspector-General of Police for a public procession permit to organise a protest march on Thursday 19 November 1970 from 9 a.m. to 4.30 p.m. to the British, French and Ivory Coast Embassies in Accra on the proposed sale of arms and dialogue

[p.142] of [1971] 1 GLR 138 by their respective governments with the South African government.

(Copy annexed and marked exhibit C.)

(5) That on 18 November 1970, the Inspector-General of Police replied as under (copy annexed and marked exhibit D):

‘I have to inform you that your application for a permit to hold a protest march on 19 November 1970 is not approved.

Your attention is drawn to this Headquarter’s letter No. 2/75/111/152 dated 10 November 1970 on the matter.’

(6) In both applications, the applicants prescribed the route to be followed by the protest march.

(7) In both replies to the applications, the Inspector-General of Police gave no reasons for the refusal to grant the permits.

(8) That the subject-matter of the said protest march was of grave political issue for Ghana and for all

Black Africa.

(9) That it was also a matter of public concern and interest to all political parties in Ghana.

(10) That on Monday 9 November 1970, the People’s Popular Party organised a press conference on the subject-matter of the sale of arms and the dialogue question.

(11) That the said press conference was very well attended by the local press including the representatives of Broadcasting House.

(12) That to the People’s Popular Party’s surprise there was a complete news black-out by the National

Press and Broadcasting House on the said press conference.

(13) That some subjects of the United Kingdom, resident in Ghana organised a protest march against the arms sale to South Africa and were granted a public procession permit by the Inspector-General of Police to stage a protest march against the United Kingdom government through its High Commissioner in Ghana.

(14) That the Progress Party and its government had on several occasions been allowed by the national press and Broadcasting House to air their views on the twin issues of arms sale and dialogue through their media.

(15) That the newly formed Justice Party has also been allowed to air its views on these self-same issues.

(16) That in view of the above, the People’s Popular Party view with grave dismay the attempt to prevent the party from expressing its views on these vital national and international issues.

(17) That the refusals to grant the permits and the news black-out on the twin question of sale of arms and the dialogue issue constitute a deliberate attempt by those in authority to stifle the views of the People’s Popular Party on these all important issues.

(18) That the refusal to grant the permits is tantamount to hindrance in the enjoyment of the freedom of assembly, of association and of

[p.143] of [1971] 1 GLR 138 movement of members of the People’s Popular Party guaranteed by the Constitution.” I have purposely set out this affidavit to show what it contains. It states facts and draws one sweeping inference. I shall deal with the facts later on in this judgment. The inference is highly tendencious, and calls for severe comment. The inference drawn is that there is a deliberate attempt by those in authority to stifle the views of the People’s Popular Party on the twin topics of the sale of arms and dialogue, and that the police as personified by the Inspector-General of Police, presumably being agents of these persons in authority, have refused the permits in furtherance of this conspiracy. The affidavit does not mention those who are supposed to be in authority, but it does make positive allegations against the national press, the broadcasting service, the Progress Party, the Justice Party and in paragraph (14) the government. With the exception of the government, copies of the affidavit were not served on any of these organisations, and none were made parties to this application. Where adverse allegations are made against any person, whether in authority or not, in any court proceedings, I think elementary justice demands that he be made aware of these allegations by serving him notice of them, in order to afford him the opportunity if so advised to appear and answer those allegations. The practice cannot be too strongly deprecated where allegations, some incapable of proof, are made in judicial proceedings without the party affected being made aware of them. On the return date, I asked counsel for the applicants whether he intended to serve copies of the application on the editors of the national papers, the Director-General of the Ghana Broad-casting Corporation, the Secretaries-General of the Progress and Justice Parties, and make them parties to this application, in view of the allegations against the respective organisations. He said he would consider the point. He never served them.

The Attorney-General was made a party to this application, and in an affidavit sworn to by a state attorney with the Attorney-General’s authority, these allegations are said to be grossly irrelevant to the application. While not in total agreement with this assertion, I have nonetheless decided to ignore them on the sole ground that those against whom they are made are not before the court. I shall, however, have something to say on one point of importance concerning the press which has been stated in the affidavit in opposition to this motion. Before doing so, however, I shall set out the relevant averments in the affidavit in opposition. It states:

“(3) That I am advised and verily believe that the application is frivolous and does not disclose any triable issues.

(4) That I am advised and verily believe that the allegations contained in paragraphs (8), (9), (11), (12),

(13), (14), (15), (16) and (17) are grossly irrelevant to this application.

(5) That I am advised and verily believe that the press is at liberty to sort out what they consider to be newsworthy of publication for the Ghanaian public.

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(6) That I am advised and verily believe that the refusal of the police to grant the applicants permits to hold protest marches in Accra does not in any way infringe the applicants’ constitutional rights nor is it in any way tantamount to the hindrance in the enjoyment of the freedom of assembly or association and of movement.

(7) That I am advised and verily believe that the respondents’ refusal to grant the permits was in accordance with the law and Constitution of Ghana in particular Act 165 and articles 23 and 24 of the Constitution.”

From these affidavits filed by the parties it is clear that the following material facts are accepted by both as substantially true, the Attorney-General’s affidavit not having denied them:

(a) That the People’s Popular Party applied for permits from the Inspector-General of Police to hold protest marches in respect of two issues, the sale of arms by Britain and France to South Africa, and the proposed dialogue between the Ivory Coast and South Africa.

(b) That the proposed routes to be followed were indicated in the said applications.

(c) That the police refused these permits without assigning any reasons for their refusal. I say the police because it is clear from the exhibits that the applications though addressed to the Inspector-General of Police were dealt with in accordance with departmental routine, and there is nothing to show that the Inspector-General of Police personally had anything to do with them. The fact that the Attorney-General’s affidavit did not deny the allegation that it was the Inspector-General of Police who refused them does not in my view alter the position.

(d) That the subject-matter of the intended protests was a grave political issue for Ghana and all Black Africa, and a matter of public concern and interest for all political parties in Ghana, and

(e) That permits had been given to British citizens in Ghana to stage a protest march against the United Kingdom government on the issue of sale of arms to South Africa.

The applicants, relying on these facts, complain that their liberties of association, movement and assembly have been infringed, and the respondents deny such infringement relying on the Public Order (Amendment) Act, 1963 (Act 165), and the provisions of articles 23 and 24 of the Constitution, 1969. One significant feature of the Attorney-General’s affidavit is that it does not attempt to state the grounds on which the police acted. It does not even state that they thought there was the likelihood of the breach of the peace. However, the Deputy Attorney-General has stated this from the Bar and has added that it was likely to infringe the diplomatic rights of

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Britain, France and the Ivory Coast. As I have said I have ignored certain other facts in the applicants’ affidavit on the grounds that those affected are not before the court. The Attorney-General in his affidavit, however, states that the press are free to sort out what they consider to be worthy of publication for the Ghanaian public. This statement in my view is too sweeping having regard to the clear and mandatory provisions of article 22 (2) of the Constitution which says, “Any person responsible for any national medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing or differing views.” Fortunately I am not called upon to enforce this provision as the press and broadcasting media are not parties to this application. I can only sympathise with those who are called upon to implement these provisions.

Before considering the issues raised in this application, I shall deal with some matters of procedure and practice. Article 28 (4) of the Constitution provides that, “The Rules of Court Committee may, by constitutional instrument, make Rules of Court with respect to the practice and procedure of the Superior Court of Judicature for the purposes of this article.” No such rules have so far been made. It is however a rule of practice that where a statute provides for an application to the court without specifying the form in which it is to be made, and the normal rules of court do not expressly provide for any special procedure, such applications may be made by an originating motion. See Re Meister Lucius and Bruning, Ltd. [1914] W.N. 390. The notice of motion must be intituled in the matter of the Act under which the application is made, it must state clearly the order or relief sought and must further state the grounds of the application. I am satisfied that the applicants herein have done all these and that their application is properly before this court.

The next matter of practice and procedure is the capacity requisite to sustain an application under article 28 of the Constitution. This article provides the machinery for the enforcement and protection of the fundamental freedoms enshrined in the Constitution. Chapter four of the Constitution deals with fundamental human rights. Article 12 provides that:

“Every person in Ghana shall be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, that is to say,

(a) life, liberty, security of the person, the protection of the law and unimpeded access to the Courts of law; and

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home, correspondence and other property, and from deprivation of property without compensation; . . .”

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These provisions seem to refer to rights and freedoms of human beings. The Constitution does not define a person, but the Interpretation Act, 1960 (C.A. 4), does and it includes bodies corporate. I can appreciate a limited liability company having a place of origin, but I cannot see how a disembowelled legal entity can have a race, a colour and above all a sex. It is, however, clear that a limited liability company or a corporation can hold property, and that that property is protected from confiscation without compensation under the provisions of this article. The protection such a company enjoys is for the benefit of its members. The People’s Popular Party is a registered political party under the Political Parties Decree, 1969 (N.L.C.D. 345), and therefore has corporate personality. If the rights of its members are invaded then I think the party has the requisite capacity to make an application for their benefit. I am further fortified in my view because the respondent did not take any objection to the application being brought in the name of the People’s Popular Party. In any event it is practical, common sense that in the circumstances of this application, it would have been intolerable if all the members of a political party were to maintain actions in their own names.

Having disposed of these incidental points of practice and procedure, I shall now examine the merits of the application. The applicants contend that the police have infringed their constitutional rights to freedom of movement, association and assembly. These rights are set out in articles 23 and 24 of the

Constitution. Article 23 provides:

“(1) No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision

(a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health or the running of essential services; or

(b) that is reasonably required for the purposes of protecting the rights or freedoms of other persons; or

(c) that imposes restrictions upon public officers; and except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in terms of the spirit of this Constitution.”

The relevant parts of article 24 are:

“(1). No person shall be deprived of his freedom of movement; and for the purposes of this article the said freedom means the right to move freely throughout Ghana, the right to reside in any part of Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana . . .

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(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision . . .

(c) for the imposition of restrictions that are reasonably required in the interests of defence, public safety, public order, public morality, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons, and except so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in terms of the spirit of this Constitution; . . .”

It is clear therefore that any interference with or restriction in the exercise by any person of the right to the freedoms above set out is prima facie wrongful unless it can be shown (a) that such interference was in pursuance of some provision of a law in force, (b) that the law has made provision for the imposition of restrictions on the exercise of these freedoms, (c) that these restrictions are reasonably required in the public interest and (d) the act performed constituting the invasion is shown not to be reasonably justifiable in terms of the spirit of the Constitution.

The first two conditions do not pose any problems; they are capable of objective determination. The same cannot be said of the last two conditions. Who is to determine what is the public interest, and who is further to determine what is reasonably required in the interest of the public order, morality, etc., as is postulated in the third condition? In so far as the provisions require it to be shown that the legislative provision is not reasonably justifiable in terms of the spirit of the Constitution, it can safely be said that “it should be shown to the court” which is to decide whether there has or has not been an invasion of the right; and that the courts are to determine what is the spirit of the Constitution and whether or not the legislative provision or the act performed thereunder or both are in consonance with this spirit. The learned Deputy Attorney-General relies heavily on the provisions of Act 165 to resist the application. This Act substitutes section 6 of Act 58 and the new section 6 (1) provides:

“(1) Any person who desires,

(a) to celebrate any traditional custom; or

(b) to hold or form any meeting or procession in any public place, shall first apply to a police officer not below the rank of Assistant Superintendent of Police, or other authorised public officer for permission to do so; and if such officer is satisfied that the celebration, meeting or procession is not likely to cause a breach of the peace, he may issue a permit authorising the celebration, meeting or procession and may in such permit prescribe any special conditions, limitations or restrictions to be observed with respect thereto.”

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Section 10 of Act 58 makes this provision apply only to such places as the minister may, by executive instrument appoint; in any event places where the Public Meetings and (Amendment) Processions (No. 2) Regulations, 1954 (L.N. 415), applied before the coming into force of Act 58 were deemed to have been so appointed. In other words this piece of legislation does not apply generally throughout Ghana; it applies only where the minister directs that it should. Section 13 of Act 58 further provides that “authorised” means authorised by the minister; in other words the minister can authorise any public officer to be the officer granting permits for public meetings and processions.

The Deputy Attorney-General in a very forceful and well considered argument has urged that the act of the police was authorised by the Act which has made provision for the imposition of restrictions, i.e. the prior grant of a permit, on the exercise of the freedoms under discussion; that this legislation is reasonably required in the interests of public order; and further that this legislation is reasonably justifiable in the spirit of the Constitution. He has further urged that the act complained of, i.e. the refusal to grant the permits without assigning any reasons, is also reasonably justifiable in the spirit of the Constitution. Finally the learned Deputy Attorney-General submitted that this court cannot enquire into the grounds and reasons if any for the police action. He relies on two English authorities in support of his propositions. The first is the case of Point of Ayr Collieries, Ltd. v. Lloyd-George [1943] 2 All E.R. 546, C.A. In that case control of the appellants’ undertaking was taken by the Ministry of Fuel and Power by an order made under the Defence (General) Regulations, 1939, reg. 55 (4). This regulation as set out at p. 546 of the report provided that:

“If it appears to a competent authority that in the interests of the public safety, the defence of the realm, or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, it is necessary to take control . . . of the whole or any part of an existing undertaking . . . the competent authority may by order authorise any person . . . to exercise, . . . such functions of control . . . as may be provided by the order . . .”

The appellants contended that there were no adequate grounds upon which the minister could find as he stated he had found, namely, that it was necessary to take control in the interests of the defence of the realm and the efficient prosecution of the war and for maintaining supplies and services essential to the community. It was held that there was no jurisdiction to interfere with what was an admittedly bona fide decision of the minister within his delegated authority. The exercise of executive power under such a regulation could not be questioned in the courts and could be questioned only in Parliament. Lord Greene M.R., in the course of his judgment, said at p. 547:

“If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular

[p.149] of [1971] 1 GLR 138 form of language, it is for the competent authority, whatever Ministry that may be, to decide as to whether or not a case for the exercise of the powers has arisen. It is for the competent authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge of the credibility of that evidence. It is for the competent authority to judge whether or not it is desirable or necessary to make further investigations before taking action. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigations and perhaps negotiation. All those matters are placed by Parliament in the hands of the Minister in the belief that the Minister will exercise his powers properly, and in the knowledge that, if he does not do so, he is liable to the criticism of Parliament. One thing is certain, and that is that those matters are not within the competence of this court. It is the competent authority that is selected by Parliament to come to the decision, and, if that decision is come to in good faith, this court has no power to interfere, provided, of course, that the action is one within the four corners of the authority delegated to the Minister.”

If even I held that the same principles applied in Ghana I would distinguish this case from the applicants’ case. In the English case the bona fides of the minister was not in question; in this present case the applicants have impugned the bona fides of the police in no uncertain terms. They say that the refusal of the permits is part of a plot to stifle their views. The other case relied on by the learned Deputy Attorney-General is the case of Liversidge v. Anderson [1942] A.C. 206, H.L. He did not cite any local authorities for his propositions, even though the two cases cited by him are no strangers in our law reports. He invited the court to apply these decisions to this application and hold that this court cannot enquire into the grounds for the satisfaction of the police that there was a likelihood that the procession would cause a breach of the peace. I am usually glad to accept an invitation from the law officers of the State; on this occasion, however, I must politely decline it. These two cases plus others in the same vein formed the basis of the decisions on the validity of the minister’s actions under the Preventive Detention Acts now repealed. They were relied upon by Smith J. in In re Okine [1959] G.L.R. 1 and in other similar decisions. Even in England the decision in the Liversidge case (supra) has been recognised for what it is: a decision taken in times of national peril and emergency. The emergency provisions of our Constitution are quite clear, and it may be that at such times our courts may be persuaded to apply these decisions to uphold ministerial actions.

In enforcing the provisions of Chapter four of our Constitution the English decisions on the liberty of the subject are not a sure guide. England has no written constitution, and as Dicey has shown quite clearly the doctrine of separation of powers is not firmly enshrined in the British Constitution. In the common law jurisdictions, I am of the

[p.150] of [1971] 1 GLR 138 view that the American experience is a better guide in applying the provisions of articles 12 to 27 of our Constitution and it is from that experience that I propose to seek guidance, not forgetting that in the last analysis the actual words of our Constitution must be interpreted according to our own rules of statutory interpretation.

In the American case of Shirttleworth v. City of Birmingham (1969) 394 U.S. 147, S.C. the petitioners (including the late lamented Martin Luther King) wished to hold marches in Birmingham, Alabama, on Good Friday and Easter Sunday 1963, to protest against racial discrimination in the city. Section 1159 of the General Code of Birmingham provided (at pp. 148-150):

“It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public demonstration on the streets or other public ways of the city, unless a permit therefore has been secured from the commission.

To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose for which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused. It shall be unlawful to use for such purposes any other streets or public ways than those set out in the said permit.” The petitioners applied for a permit to hold their protest marches, but were refused the permits. They however decided to hold the marches without the permits. The commission applied for and obtained from the state court an ex parte order enjoining the planned marches unless the petitioners complied with all the applicable laws; a copy of this order was served on the petitioners. The petitioners in disobedience of this order nevertheless held the marches as planned without the permits. The commission then initiated criminal proceedings for the violation of the city ordinance. The Supreme Court held that the city ordinance was unconstitutional on its face since it subjected the exercise of First Amendment freedoms (at p. 151) to “the prior restraint of a licence, without narrow, objective, and definite standards to guide the licensing authority.” The only ground specified in Act 58 as amended by Act 165 is that there should be no likelihood of the breach of the peace. I do not think that it can be argued that legislation designed to prevent the breach of the peace is not in the interests of the public order. It was not so argued. This however does not dispose of the question under consideration. The Act authorises any police officer not below the rank of an Assistant

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Superintendent of Police and any public officer so authorised by the minister to grant permits. The paramount duty of the police force is to maintain law and order. It is therefore reasonable to vest such power in their senior officers. They are likely by their training, and through their daily work to know when there is the likelihood of a breach of the peace in any locality within their district and jurisdiction. They receive daily reports from constables on the beat, from detectives and from the public. The same cannot be said of any public officer. It can be said that no reasonable minister is likely to authorise a postal clerk, who is also a public officer, to issue such permits. But there is nothing in the Act to prevent the minister from so doing. The legislation in force before Act 58 provided that: “Any person who desires to hold or form any meeting or procession in a public way or place shall first apply to a police officer not below the rank of Assistant Superintendent of Police or if there be no such officer, then to the Government Agent for permission to do so.” The government agent’s duties also involved the maintenance of peace and tranquility in his district, and could therefore be relied on to determine the likelihood of a breach of the peace. Even there the application went to him only where there was no Assistant Superintendent of Police or a police officer above that rank available. I am of the view that Act 58 as amended by Act 165 in so far as it empowers the minister to authorise any public officer to issue permits is on its face not reasonably required in the public interests.

The next question is whether I can sever the legislation and say that the part which authorises the Assistant Superintendent of Police and above is reasonable, and declare the other part as unreasonable. I know of cases where delegated and subsidiary legislation has been held to be severable, but I know of no case where the court is authorised to sever legislative acts of Parliament. However, article 126 (5) of the Constitution empowers the courts when applying existing legislation to do so with such modifications and adaptations as may be necessary to bring such law into conformity with the Constitution. I am of the view and I do so hold that Act 58 as amended by Act 165 in so far as it authorises a police officer above the rank of Assistant Superintendent of Police to grant permits is reasonably required in the public interests of Ghana.

Now we must consider whether the act of the police, in refusing the permit in this case without stating any reasons, is in itself reasonably justifiable in the spirit of the Constitution. I do not have to go far to determine this question. Article 173 of the Constitution provides:

“Where in this Constitution or in any other law discretionary power is vested in any person or authority,

(a) that discretionary power shall be deemed to imply a duty to be fair and candid;

(b) the exercise of any such discretionary power shall not be arbitrary, capricious or biased, either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and

[p.152] of [1971] 1 GLR 138

(c) the person or authority, not being a Judge or other Judicial Officer in the exercise of his judicial functions, in whom the discretionary power is vested shall, by constitutional or statutory instrument, as the case may be, make and publish Regulations, not being inconsistent with any provision of this Constitution or of that other law, which shall govern the exercise of that discretionary power.” This provision was considered in the case of Captan v. Minister of Interior, Supreme Court; 16 January 1970, unreported; digested in (1970) C.C. 35. It is clear in that case that the court was of the view that in ordering the deportation of an alien, the minister was not exercising a discretionary power. I am of the view that Act 58 as amended by Act 165 vests a discretionary power in the police officer and that the exercise of that discretion must be fair and candid.

Now who is to determine whether the exercise of the discretion has been fair and candid? There is no provision in that Act for an appeal to a higher police officer or even to the minister where an applicant feels aggrieved by the refusal of the police officer to grant him a permit. His right to apply to the court has not been taken away by the Act; it has rather been confirmed in article 28 of the Constitution. The courts must know the grounds on which the police acted. In this case the affidavit of the state attorney is silent on the matter. The learned and honourable Deputy Attorney-General has, however, stated that to mount a protest march to these embassies is to infringe international law and that would be prejudicial to the interests of Ghana. The short answer to this point is that Act 58 does not authorise the police to refuse permits on that ground. The only ground is the likelihood of the breach of the peace; and I cannot imagine the British High Commissioner and his staff engaging in fisticuffs with members of the People’s Popular Party however much they are provoked. I must therefore hold that the police in refusing the permits to the People’s Popular Party infringed their rights to freedom of movement, assembly and association. Now the applicants are asking for an injunction against the police. I do not think an injunction lies against the police. Section 13 of the State Proceedings Act, 1961 (Act 59), prohibits this but authorises the courts to make a declaration of the rights of the parties in lieu of an injunction, and I propose to do just that. I declare that the police were wrong in refusing the permits applied for; and further declare that the People’s Popular Party, as a party registered under N.L.C.D. 345, is entitled to a permit to hold meetings, protest marches, etc., if they do so desire, and that the police can only refuse if such a procession is likely to cause a breach of the peace. I further declare that the People’s Popular Party is entitled to know in writing the grounds on which the police rely in coming to a decision that their marches would cause such breach of the peace.

DECISION

Application granted.