Abstract
In the wake of the COVID-19 global pandemic, the Government of Ghana unlike many other African States did not formally declare a state of emergency. Rather, it enacted the Imposition of Restrictions Act, 2020 (Act 1012), which for all intents and purposes was an emergency legislation. This chapter examines the impact, if any, of COVID-19 on the rule of law and human rights in Ghana. The chapter therefore discusses the legal framework for dealing with emergencies under the Constitution and analyses Ghana’s response to the pandemic within that context. The effect of Act 1012 as well as other emergency legislation that were resorted to during the pandemic are thus explored to ascertain their consistency or otherwise with the rule of law in general, and fundamental human rights in particular.
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Notes
- 1.
Many African countries started gaining independence in the late 1950s and the early parts of the 1960s.
- 2.
For example, Ghana under the rule of Kwame Nkrumah experimented with socialism until his overthrow in 1966.
- 3.
On 6th March 1957, Ghana (then referred to as the Gold Coast) was born, with the adoption of several constitutional instruments, paving the way for self-government by the indigenes.
- 4.
See K. Frimpong & K. Agyeman-Budu, The Rule of Law and Democracy in Ghana since Independence (2018) African Human Rights Law Journal.
- 5.
Ibid.
- 6.
The rapid spread of the virus to almost all parts of the world and the increasing infection rates, rising death toll and the fact that healthcare systems all over the world became overwhelmed shows how unprepared the world generally was for an outbreak of this nature.
- 7.
The President of Ghana during the early parts of the pandemic was noted for providing almost weekly updates to the country on steps his government were taken to counter the pandemic. The phrase “fellow Ghanaians” gained popularity within the country as a result of his frequent use of those words in the live telecasts.
- 8.
See Laignee Barron, What we can learn from Singapore, Taiwan and Hong Kong about handling coronavirus, Time (13th March 2020) https://time.com/5802293/coronavirus-covid19-singapore-hong-kong-taiwan/, Accessed on 20th June 2022.
- 9.
Ghana is an example of an African country that imposed restrictions on movement including travel restrictions. As a matter of fact, the government shut all land and air borders for a considerable period of time.
- 10.
Examples of African countries that had a lockdown in one form or the other include: Ghana, Nigeria, South Africa, Sierra Leone, Sudan, Tanzania, Uganda, Zambia and Zimbabwe.
- 11.
This is the essence of constitutionalism i.e. limited power—the idea that no one branch of government should be given unlimited power.
- 12.
The concept of separation of powers underpins most modern Constitutions and this ensures Legislative and/or Judicial oversight in respect of the exercise of executive power and/or authority.
- 13.
The path that the government of Ghana adopted will be explored in detail in this chapter.
- 14.
There has been a debate as to why the government seemed reluctant in exercising the powers under Article 31 of the Constitution that provides for the declaration of a state of emergency. For example, one school of thought is of the view that by not doing so and rather going the route of enacting “emergency” legislation pursuant to Article 21 rather, the government could act without necessarily having Parliamentary and Judicial oversight in the exercise of emergency powers.
- 15.
A cursory look at the written Constitutions of many of the States of the world will reveal the adoption of some variation of the rule of law or good governance.
- 16.
This translates as “the King can do no wrong.”
- 17.
See Plato, The Laws.
- 18.
Id.
- 19.
See AV Dicey, Introduction to the study of the law of the Constitution.
- 20.
See note 4, above.
- 21.
[1961] GLR 523.
- 22.
Id.
- 23.
In Re Akoto and 7 others [1961] GLR 523.
- 24.
Id. See also the case of In Re Dumoga & 12 Others [1961] GLR 44, which also dealt with the Preventive Detention Act.
- 25.
See Chapter 5 of the 1992 Constitution of Ghana.
- 26.
See Article 31(2) and Section 2(1) of Act 472.
- 27.
See article 31(6) and Section 4(1) of Act 472.
- 28.
Article 31(7) and Section 4(2) of Act 472.
- 29.
Emphasis ours.
- 30.
See Article 32 of the 1992 Constitution.
- 31.
See H. Kwasi Prempeh, What is the point of the Imposition of Restrictions Bill? Myjoyonline.com (21st March 2020) https://www.myjoyonline.com/opinion/what-is-the-point-of-the-imposition-of-restrictions-bill/, Accessed on 19th April 2020. See also Professor Kwadwo Appiagyei-Atua, Emergency without a State of Emergency: Effects of Imposition of Restrictions Act, 2020 on rights of Ghanaians. Myjoyonline.com (2nd April 2020) https://www.myjoyonline.com/opinion/emergency-without-a-state-of-emergency-effect-of-imposition-of-restrictions-act-2020-on-rights-of-ghanaians/, Accessed on 19th April 2020.
- 32.
The present authors in this part of the chapter rely extensively on the work of one of the authors (Dr. Kwaku Agyeman-Budu), with his permission, entitled “COVID-19, Constitutionalism and Emergencies in Ghana,” accepted for publication in the 2022 Edition of the Review of Ghana Law.
- 33.
See the Long Title of the Act.
- 34.
Article 21(1)(a)—the right to free speech and expression includes freedom of the press and other media.
- 35.
Article 21(1)(b)—freedom of thought, conscience and belief include academic freedom.
- 36.
Article 21(1)(c)—freedom of religion includes the right to manifest such religion.
- 37.
Article 21(1)(d)—freedom of assembly includes the freedom to take part in processions and demonstrations.
- 38.
Article 21(1)(e)—freedom of association includes the freedom to form or join trade unions or other associations, national and international, for the protection of one’s interest.
- 39.
Article 21(1)(f)—freedom of information is subject to such qualifications and laws as are necessary in a democratic society.
- 40.
Article 21(1)(g)—freedom of movement means the right to move freely in Ghana, the right to leave and enter Ghana and immunity from expulsion from Ghana.
- 41.
Section 1 of Act 1012.
- 42.
Section 2(1) of Act 1012.
- 43.
Section 4(1) of Act 1012.
- 44.
Section 4(3) defines “exigencies of the circumstances” to include “an increase or decrease of the intensity of the disaster, emergency or similar circumstance; or a significant change in the nature of the disaster, emergency or similar circumstance.”
- 45.
Section 4(2) of Act 1012.
- 46.
Section 5 of Act 1012.
- 47.
See ‘Pastor, two others jailed for defying ban on gatherings’ Myjoyonline.com (17th April 2020) https://www.myjoyonline.com/news/regional/pastor-2-others-jailed/, Accessed on 19th April 2020.
- 48.
Paragraph 1(1)(a), 1(2), 1(3), 1(4) and 1(5) of E.I. 64 has suspended all public gatherings including conferences, workshops, funerals (except private burials limited to 25 persons), festivals, political rallies, sporting events, private parties and other social gatherings, night clubs, drinking spots and event centres, religious activities in churches, mosques, shrines and at crusades, conventions, pilgrimages and other religious gatherings. Hence, the exercise of the following rights in Ghana have been restricted in varying degrees: the right to education; the right to cultural life; political rights; freedom of expression; freedom of association and assembly; right to leisure; and religious rights.
- 49.
Paragraph 1(1)(b) and 5 of E.I. 64 has restricted travel to Ghana. Hence, the right to free movement has also been curtailed.
- 50.
Paragraph 1(4) of E.I 64 provides that: “All universities and other tertiary institutions, training institutions, senior high schools, basic schools, public and private schools, nurseries, creches, and such other schools have been closed down.”
- 51.
See Paragraph 2 of E.I. 64. These restrictions were subsequently extended, and gradually eased in phases.
- 52.
As already noted, the Ghana Health Service had identified these cities in Ghana as the hotspots of the coronavirus infections.
- 53.
Paragraph 1(1) of E.I. 65. This was subsequently extended for one more week which lapsed on Sunday 19th April 2020, and was lifted on that date, contrary to the belief that it was likely to be extended incrementally for the foreseeable future.
- 54.
Paragraph 5 of E.I. 65.
- 55.
Paragraph 8 of E.I. 65. The restrictions on public gatherings and travel to Ghana have subsequently been eased.
- 56.
Paragraph 1(1) of E.I. 66.
- 57.
See GIMPA Law & Ethics Policy Paper (GLEPP), Volume 1|Issue 13, 3rd August 2020, Accessed on 5th September 2020. https://acle-gh.org/publications/.
- 58.
Ibid.
- 59.
See Article 21(4) of the 1992 Constitution of Ghana.
- 60.
See Article 21(1) of the 1992 Constitution of Ghana.
- 61.
See Article 21(4) (a) and (b) of the 1992 Constitution of Ghana.
- 62.
Compare Article 21(4) (a) and (b) to Article 21(4) (c) and (d).
- 63.
As a State Party to the International Covenant on Civil and Political Rights (ICCPR), which has similar provisions on public emergencies that threaten the life of a State, Ghana is obliged pursuant to Article 4 to formally notify other States through the Secretary-General of the United Nations of our derogations, and the reasons for so derogating and also notify them when the derogations terminate. That notwithstanding, no derogation is permitted in respect of some core human rights like the right to life.
- 64.
See GIMPA Law & Ethics Policy Paper (GLEPP), Volume 1|Issue 13, 3rd August 2020, Accessed on 5th September 2020. https://acle-gh.org/publications/
- 65.
See the long title of Act 775.
- 66.
Section 99(1) of Act 775. The President during states of emergency may even assume direct control of electronic communication services per Section 99(6) of Act 775.
- 67.
See the Preamble to the Establishment of Emergency Communications System Instrument, 2020 (E.I. 63) which provides in part that: “WHEREAS, there is an urgent need to establish an emergency communications system to trace all contacts of persons suspected of or actually affected by a public health emergency and identify the places visited by persons suspected of or actually affected by a public health emergency …”
- 68.
Paragraph 1(1)(a) of E.I. 63.
- 69.
Paragraphs 1(1)(b), 1(2) and 1(3) of E.I. 63.
- 70.
See Professor Kwadwo Appiagyei-Atua, Emergency without a State of Emergency: Effects of Imposition of Restrictions Act, 2020 on rights of Ghanaians. Myjoyonline.com (2nd April 2020) https://www.myjoyonline.com/opinion/emergency-without-a-state-of-emergency-effect-of-imposition-of-restrictions-act-2020-on-rights-of-ghanaians/, Accessed on 19th April 2020. There was also pending before the courts a lawsuit that sought to challenge the validity of E.I. 63. The outcome of this case is unknown to the present authors.
- 71.
See Professor Kwadwo Appiagyei-Atua, Emergency without a State of Emergency: Effects of Imposition of Restrictions Act, 2020 on rights of Ghanaians. Myjoyonline.com (2nd April 2020) https://www.myjoyonline.com/opinion/emergency-without-a-state-of-emergency-effect-of-imposition-of-restrictions-act-2020-on-rights-of-ghanaians/, Accessed on 19th April 2020.
- 72.
See Section 4 of Act 1012.
- 73.
See note 33, above.
- 74.
Ibid.
- 75.
See Ellen Dapaah, Courts to follow new measures to prevent spread of Coronavirus, Citinewsroom.com (16th March 2020) https://citinewsroom.com/2020/03/courts-to-follow-new-measures-to-prevent-spread-of-coronavirus/, Accessed on 19th April 2020.
- 76.
See Nii Larte Lartey, Courts ordered to adjourn cases to May, June over COVID-19 lockdown, Citinewsroom.com (30th March 2020) https://citinewsroom.com/2020/03/courts-ordered-to-adjourn-cases-to-may-june-over-covid-19-lockdown/, Accessed on 19th April 2020.
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GIMPA Law & Ethics Policy Paper (GLEPP), Volume 1|Issue 13, 3rd August 2020, Accessed on 5th September 2020. https://acle-gh.org/publications/.
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‘Pastor, two others jailed for defying ban on gatherings’ Myjoyonline.com (17th April 2020) https://www.myjoyonline.com/news/regional/pastor-2-others-jailed/, Accessed on 19th April 2020.
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Agyeman-Budu, K., Kwarteng, B. (2022). Rule of Law and Human Rights During the COVID-19 Pandemic in Africa: Reflections from Ghana. In: Addadzi-Koom, M.E., Addaney, M., Nkansah, L.A. (eds) Democratic Governance, Law, and Development in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-15397-6_19
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