Mrs Margaret Banful & Henry Nana Boakye v. The Attorney-General & The Ministry of Interior Supreme Court Writ No. Jl/7/2016 22nd June 2017
Facts: There was an agreement made in 2016 between the Government of the United States of America and the President This sought to transfer to Ghana for settlement two Yemeni citizen: held in detention by the United States of America at its facilities at Guantanamo Bay.
The said persons were in all material moment in Ghana. The applicants invoked the original jurisdiction of the Supreme Court pursuant to articles 2(1)(b) and 130(1) of the 1992 Constitution of Ghana and rule 45 of the Supreme Court Rules, 1996 (C.I. 16).
The applicants sought a declaration that on a true and proper interpretation of article 75 of the 1992 Constitution of Ghana, the agreement between the Government of United States of America and the President of the Republic of Ghana required ratification by an Act of Parliament or a resolution of Parliament supported by the votes of more than one-half of all members of Parliament. The applicants also sought the declaration that the president acted unconstitutionally in his failure to obtain the requisite ratification of Parliament.
They averred that as a dualist state, Ghana’s consent to be bound by an international agreement is only deemed to have been properly secured after the same has been approved or ratified by Parliament. not in any 5(2) of the They argued therefore that the National Security Council might instance derogate from the power of Parliament under article 7 1992 Constitution. Hence, approval of all agreements is the sole prerogative of Parliament.
But the respondents submitted that the said agreement is not of the type of agreement contemplated by article 75. They argued that article 75 covers only treaties, agreements and conventions but not diplomatic notes. Therefore, there was no need for parliamentary approval.
It was the case of the respondents also that security and the entire National Security Constitution has not suggested by any means that the security of the country has been endangered by the action from Guantanamo Bay to Ghana. of bringing the ex-detainees The Court subsequently ordered the production of a copy of the said agreement.
Issue: Whether or not the document or instrument made between Ghana and the United States of America is in the category of an agreement contemplated by article 75 of the 1992 Constitution, which, therefore, ought to have been placed before Parliament for ratification?
Held: The document is in the category of an agreement contemplated by article 75 of the 1992 Constitution which ought to have been placed before Parliament for ratification.
Reasoning: Article 75 of the 1992 Constitution provides that a treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by an Act Parliament supported by the votes of more than one-half of all the members of Parliament. of Parliament or a resolution of The Constitution, 1992 also provides in article 73 that the Government of Ghana shall conduct its international accepted principles of public international affairs in accordance with the law which also is in line with the interest of Ghana. The Court reasoned that since the 1992 Constitution does not distinguish between executive agreements which require no approval of Congress such as the American situation and treaties that require same, all agreements signed between the Government of Ghana and another State require parliamentary approval.
The Court held therefore that the arrangement, unique as it is, cannot be made without parliamentary ratification.
It was held consequently that upon a true and proper interpretation of article 75 of the 1992 Constitution of Ghana, the President of the Republic of Ghana, in agreeing to the transfer of Mahmud Umar Mohammed Bin Atef and Khalid Muhammad Salih Al-Dhuby to the Republic of Ghana, required the ratification by an Act of Parliament or a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament and by virtue of the failure to obtain such ratification the agreement is unconstitutional.
Conclusion: The agreement required parliamentary ratification. And failure of which makes it unconstitutional.
