AG ordered to make in-camera presentation on Ghana, US agreement over Gitmo detainees
The Supreme Court has ordered the state to produce the documents, which allowed the transfer and subsequent resettlement of two Yemenis from the Guantanamo detention camp in Cuba into the country, before it on July 6, 2016.
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According to the five member panel, presided over by Mr Justice William Atuguba, the state must make the documents or what is known as the notes verbale available in camera for it to determine whether it qualifies to be termed as confidential.
“Produce in camera the notes verbale, the subject matter of this application for a determination thereon pursuant to article 135 clauses 1and 3 of the constitution,’’ the court held.
Other members of the panel were Messers Justices Anin Yeboah, Jones Dotse, Paul Baffoe- Bonnie and Ms Justice Sophia Akuffo.
The order follows an interlocutory application by two individuals, Margaret Banful and Henry Nana Boakye praying the court to order the government to produce the diplomatic agreement between it and the United States government that gave the green light for the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhubyto from Guantanamo Bay to Ghana.
Substantive case
Prior to filling the interlocutory application, the applicants had filed a writ asking the highest court to declare the transfer of the two Yemenis into the country as unconstitutional.
They are seeking “A declaration that upon a true and proper interpretation of Article 75 of the 1992 constitution, the President of the Republic of Ghana acted unconstitutionally in his failure to obtain the requisite ratification by an Act of Parliament or a resolution of Parliament supported by votes of more than one-half of all the members of Parliament when he agreed to the transfer of Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhubyto.’’
They also want “ An order directed at the President and his assigns, for the immediate removal and return Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhubyto from the Republic of Ghana to Guantanamo Bay.’’
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Confidential
At today’s hearing of the application, the state represented by the acting Solicitor –General, Mrs Helen Ziwu, opposed the application, stating that the said document was confidential and, therefore, its disclosure would violate the laws of the country
“The disclosure is against article 135 (1) of the 1992 constitution and the section 1 of the State Secrets Act (1960).
“We are, therefore, inviting the court to exercise its jurisdiction under the constitution to determine whether the diplomatic notes exchanged between the government of Ghana and the United States is of confidential nature,’’ she said.
Agreement
One issue which attracted lots of views from the panel was whether the notes verbale that necessitated the transfer of the two ex-Guantanamo detainee could be described as an agreement or not.
While the applicant described it as an agreement, the Solicitor-General argued that it was not a formal agreement and therefore did not require parliamentary ratification as stipulated by Article 75 of the 1992 constitution.
At that point, Mr Justice Atuguba asked her if the said document led to any execution of any act between Ghana and the US.
Mrs Ziwu answered that it was an exchange of diplomatic notes between the Ghana and the US and not a formal agreement.
“It is not an agreement and therefore does not fall under Article 75 (2) of the 1992 constitution. These were administrative or diplomatic notes that established some form of agreement for the detainees to be brought to Ghana but not an agreement that ought to be brought before Parliament,’’ she said.
Ms Justice Sophia Akuffo also asked whether it was not an agreement or not.
“You said it is a note verbale intended to achieve a purpose which is the hosting of the detainees in Ghana for two years under certain terms and conditions stated in the note. Now if that is not an agreement, then what is it?’’ she queried.
Mrs Ziwu repeated his previous answer stating that it was not a written agreement that requires ratification from Parliament.