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Counter-Terrorism Framework and Individual Liberties in Ghana

Document Cited in Related
Vincent
Published date01 February 2020
Pages50-65
Date01 February 2020
DOI10.3366/ajicl.2020.0301
INTRODUCTION

After the terrorist events of 11 September 2001, the United Nations Security Council (UNSC), acting under Chapter VII of the United Nations Charter, unanimously passed UNSC Resolution 1373.1 The Resolution directed that the UN Member States introduce a separate crime of terrorism into their national laws, work together to suppress terrorist financing, share intelligence on terrorism, monitor geographic borders and implement the relevant international conventions and protocols to combat terrorism.2 The Resolution effectively set up a framework within which the UN Member States should act to suppress modern-day terrorism.3 Given that the UNSC acted under Chapter VII of the UN Charter, the compliance of Member States was required and non-compliance could theoretically lead to sanctions. Resolution 1373, however, did not encounter the usual enforcement problems that many international instruments face. This is because, unlike human rights instruments or other international instruments requiring governments to do a specified act, this framework gave governments certain powers over internal or domestic arrangements.4 Scheppele notes that:

From once-again-powerful Russia to tiny Vanuatu, from constitutionalist Britain to anti-constitutionalist Vietnam, countries around the world have been changing their laws and practices since September 11 to fight terrorism, using a template that has been internationally forged, transnationally transmitted through international and regional associations, and locally adjusted to produce results that challenge basic constitutionalist principles at home.5

Flowing from the UNSC Resolution 1373 framework, Member States created new counter-terror laws and sophisticated secret surveillance programmes. These laws and secret surveillance programmes have generated criticisms and many judicial challenges. The criticisms and challenges have not deterred governments from creating new laws any time terror strikes. In fact, any time terrorism occurs, new laws, executive orders and new counter-terror tactics are initiated. The government insists that these actions are necessary for protecting the national security of the state.6 Civil society and some scholars, on the other hand, contend that these laws are wide in scope, vague and cast an undue burden on individual rights.7 Understanding the tension between the two perspectives is important especially for reform because, while government agencies believe their actions to be legal, the issues of secrecy, the lack of oversight and accountability make them appear illegal and for that matter susceptible to rule of law challenges in court.8

Ghana, a Member State of the United Nations, has enacted some drastic counter-terrorism legislation after UNSC Resolution 1373 came into force. It is currently considering introducing strict electronic surveillance legislation as part of its counter-terrorism measures. The country, however, has no recent or past history of any major terror attack. This article, therefore, asks whether the flow of legislation arising from the UNSC Resolution 1373 framework creates rule-of-law and other issues of liberty for individuals in Ghana? The article will examine the surveillance and other laws passed by Ghana in response to its international law obligation to combat terrorism and its impact on the rule of law and individual liberties in the country.

 UNSC RESOLUTION 1373 IN THE REPUBLIC OF GHANA

The Republic of Ghana is a sub-Saharan West African country with a population of over 25 million people.9 It joined the United Nations immediately after independence in 1957.10 While the country had periods of military takeover, it has practised uninterrupted parliamentary democracy for over 25 years under the 1992 Constitution. Even though the country has enviable democratic credentials in the area, it's democracy can be termed emerging compared to other long-standing democracies in the world.11

Ghana occasionally receives crime alerts and other information about potential terrorist attacks from its international partners.12 The country, however, have not been attacked compared to its neighbours Côte D'Ivoire and Burkina Faso where terror attacks have occurred in recent times.13 In 2015, reports surfaced about two university graduates who travelled to Syria to join the Islamic State group.14 In January 2016, by an agreement between the government of the United States and the government of Ghana two persons, namely Mahmud Umar Muhammed Bin Atef and Khalid Muhammad Salih Al-Dhuby, formerly detained by the USA at the Guantanamo Bay facility, were transferred to settle and to be integrated into Ghanaian society.15 The transfer of two detainees dubbed the ‘Gitmo 2’ raised public furore and awareness about the counter-terror framework in the country. In Banful v. Attorney-General, the Supreme Court held 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 the two detainees to 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 was unconstitutional.16 Prior to this incident, counter-terror laws were hardly discussed at any level in the society.

<bold>The Framework for Combatting Terrorism Prior to UNSC Resolution 1373</bold>

Article 83 of the 1992 Constitution of Ghana creates the National Security Council as the highest establishment tasked with the responsibility, inter alia, to consider and take appropriate measures to safeguard the internal and external security of Ghana. The Security and Intelligence Agencies Act 1996 (Act 526) (hereinafter referred to as SIAA) is another piece of comprehensive legislation which deals with intelligence-gathering for safeguarding the national security against terror threats. The SIAA creates the Bureau of National Investigation (BNI) and the Research Department (RD) as the main intelligence agencies (IAs) in Ghana. Their primary function is to collect, analyse, retain and disseminate information and intelligence relating to activities that constitute threats to the security of the state and the government of Ghana.17 The IAs have the duty to protect the country against terrorism, espionage, piracy and related offences.18

The National Security Council is the governing body of all the IAs under the SIAA. The National Security Coordinator is tasked with the day-to-day coordination of the IAs and the National, Regional and District Security Councils. The function of the National Security Council under this law is the same as provided for under Article 84 of the 1992 Constitution which is, inter alia, to consider and take appropriate measures to safeguard the internal and external security of Ghana and ensure the collection of information relating to the security of the country and the integration of the domestic, foreign and security policies...

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