Righting Wrongs: Ghana’s Supreme Court Declares a COVID19-Induced Law Unconstitutional

"The Supreme Court of Ghana" by Guido Sohne is licensed under CC BY-SA 2.0.

In May 2023, three years after Ghana passed the Imposition of Restrictions Act (IRA) 2020 (Act 1012), the Supreme Court declared this law unconstitutional.

Though tardy, the pronouncement is still significant because it repeals a piece of legislation inconsistent with the 1992 Constitution and vulnerable to abuse by an overly fiery future President.

In this post, I outline some of the controversies surrounding the IRA’s enactment and highlight critical aspects of the Court’s decision that validated those arguments and eventually led to its repeal.

The passing of the controversial law and the backlash

In March 2020, the IRA was passed. It was the main instrument used to address the COVID-19 public health emergency. The legislation generated much controversy regarding multiple issues, ranging from how it was passed, the necessity of new emergency legislation, the absence of a time limit for the operation of the IRA, to its content which, among other things, did not make any reference to COVID-19. I added my voice by addressing some of these issues in an earlier paper that same year, arguing that the IRA created a ‘quasi-state of emergency’ alien to the country’s constitutional regime.

The unprecedented situation created by the IRA was intended to restrict persons ‘in the event or imminence of an emergency’ but drew authority from constitutional limitations on fundamental human rights intended to be used in normal times rather than emergencies. Therefore, I contended that:

“So far as the President has not declared a state of emergency, the ‘emergency effect’ of his extraordinary powers under the IRA remains unconstitutional. The IRA, in effect, serves as a smokescreen that displays the extraordinary powers invoked by the President as compatible with the emergency legal framework. In truth, the IRA scrapes off all levels of accountability connected with declaring a state of emergency– first, consultation with the Council of State; second, approval of Parliament and third, responsibility to the international community.”

I concluded that since the IRA neither mentioned COVID-19 nor had a sunset clause, it was susceptible to abuse by subsequent Presidents post-COVID. Therefore, ‘there is an opening through judicial review to fix the unconstitutionality that has been set in motion by the IRA’.

Citizen vigilantes question the IRA’s constitutionality in court.

Two years after the IRA was passed, Prof. Appiagyei-Atua and seven others in Prof. Kwadwo Appiagyei-Atua & 7 Others v. Attorney-General Writ No. J1/14/2022 filed a writ in the Supreme Court, challenging the constitutionality of the IRA. The crux of the Plaintiffs’ case was that the IRA sidestepped the public emergencies regime in the 1992 Constitution, specifically Articles 31 and 32, and sought to create an alternative emergency regime based on Article 21(4), which is a limitation clause rather than a derogation clause.

Thus, the IRA aimed to restrict certain fundamental human rights by relying on the limitations in Article 21(4) instead of the derogations in Articles 31 and 32. Conversely, the Attorney-General's core argument was that the IRA was justified because it followed a procedure under Article 21 (4) distinct from the emergency regime under Article 31 of the 1992 Constitution.

The Supreme Court declares the IRA unconstitutional.

Ghana’s Supreme Court upheld the Plaintiffs’ arguments, declaring the IRA unconstitutional, based on the following reasoning: first, the Court discussed the nature of the human rights restrictions in the 1992 Constitution.  It distinguished between the limitations regime under article 21(4) (imposition of restrictions), which is of ‘continuing application’, and the derogation regime under articles 31 and 32 (state of emergency) which is temporary in nature.

Based on the two distinct regimes for restricting human rights, the Court had to determine whether the IRA was part of the laws that fall under the ambit of article 21(4) of the 1992 Constitution, i.e., the limitations regime. In answering this question, the Court gave five guiding points:

• First, since the phrase ‘public emergency’ is absent from Article 21(4)’s limitation regime, the article was not intended to restrict fundamental human rights during public emergencies.

• Second, the wording of the IRA’s objective is to impose restrictions, among other things, ‘in the event or imminence of an emergency’. This intent is beyond the scope of the limitations regime under Article 21(4). Thus, the IRA cannot draw its authority from Article 21(4).

• Third, from its object, the IRA intends to impose restrictions that derogate fundamental human rights during emergencies or disasters, yet the Act does not define an ‘emergency’. The Court considered this omission a deliberate attempt to bypass the declaration of emergency prerequisites under Article 31.

• Fourth, the IRA drew from the derogation regime under Article 31 but did so ‘sparingly and potentially in a manner that fails to align with the principles established by the constitutional provision fully’. For example, the Act provided that the President may act ‘with the advice of the relevant person or body’ to impose the restrictions. However, it did not define who this relevant person or body is, thus raising concerns about the potential abuse of emergency powers and undermining the rights protected under the Constitution.

• Fifth, though intended to respond to a public emergency, the IRA neither referenced COVID-19 nor had a tenure or sunset clause. Therefore, the IRA was a permanent law that could be invoked at any time without recourse to Parliament.

Against this background, the IRA did not fall within the ambit of Article 21(4)’s limitations regime, nor did it fit within the Article 31 derogation clause. The follow-up question the Court had to answer was: what then are the relevant constitutional provisions that should have sanctioned the IRA?

Its response was that Article 31 would have provided the appropriate framework because that provision is a product of the wisdom of the Constitution’s framers; allowing for derogation from rights during emergencies. Further, the framers provided clear criteria for declaring and maintaining a state of emergency which are not ‘subject to the unfettered discretion of the Executive’ as the IRA did. For these reasons, the IRA was declared unconstitutional and expunged from Ghana’s laws.

The Court’s declaration is a laudable intervention that resonates with backlash to the IRA and quells the apprehension scholars raised regarding its constitutionality. By discarding the law that sought to circumvent constitutional due process, the decision has set a good precedent for the management of future emergencies and the need for power balance in safeguarding constitutionally protected fundamental human rights.