In the face of the Covid-19 pandemic, some of our personal liberties have been curtailed and traded off for the greater good of our country Ghana.

The introduction of the Imposition of Restrictions Act, 2020 (Act 1012) and its associated Executive Instruments (EIs) legitimised the curtailment of these rights and freedoms.

While it has become obvious that citizens cannot enjoy some of their rights and freedoms, it has not been made obvious for many that the law now criminalises some of our liberties.

In addition, Act 1012 introduced new offences and criminalised acts that we were once at liberty to undertake. E.I 64 has imposed restrictions on our freedom of religion, freedom of assembly, freedom of movement, some economic rights, educational rights and cultural rights and practices which have all been guaranteed under the 1992 Constitution of Ghana.

A breach of any of these restrictions is a criminal offence by virtue of Act 1012 and I dare say it is very easy to become a criminal in these times.

However, the criminal law affords every person the necessary procedural safeguards to ensure that certain rights are not curtailed even in these times. Indeed ‘we are not in ordinary times.’ Section 6 of Act 1012 introduces a new offence and consequent penalties. The section provides that,

‘A person who fails to comply with the restrictions imposed under the Executive Instrument issued under subsection (1) of section 2 commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than five thousand penalty units or to a term of imprisonment of not less than four years and not more than ten years or both.’

The legitimacy of the substantive criminal law quoted above has been put in issue by some commentators questioning Government’s decision to introduce Act 1012, instead of declaring a state of emergency under the 1992 constitution of Ghana and applying already existing laws such as the Emergency Powers Act, 1994 (Act 472) and the Public Health Act (Act 851). The severity of the punishment prescribed has also been a matter of concern for many.

Without downplaying the importance of these discussions, it would be worth examining the state’s machinery that is in place to ensure that procedures through which this substantive criminal law is enforced is done legally and in accordance with the rule of law and due process.

Disputes about what constitutes a criminal wrong is determined by a distinct procedure established in law which ensures that the state’s agenda of controlling certain criminal actions does not detract from the need to respect the fundamental human rights of people, from which no derogation can be permitted.

Whether a state of emergency is declared under the 1992 Constitution or restrictions are imposed on persons under an Act of Parliament and EIs, it must be understood that some rights, privileges and freedoms cannot be curtailed in a liberal democratic state on the basis of some consequentialist claims about societal good.

The International Covenant for Civil and Political right to which Ghana is a party, in Article 4 prohibits the derogation of certain rights in a state of emergency. These rights include the right to life and prohibition against torture, inhuman and degrading treatment or punishment. Article 31(10) of the 1992 Constitution however provides that, in a state of emergency,

‘Nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent with, or in contravention of articles 12 to 30 of this Constitution to the extent that the Act in question authorises the taking, during any period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that exists during that period.’

Article 12 to 30 of the 1992 Constitution makes provision on the fundamental human rights of the people. A reading of Article 31(10) appears to suggest that in a state of emergency the fundamental human rights of persons can be curtailed in dealing with the situation that exists during the period.

It is worth noting that, a state of emergency has not been declared by the President in accordance with the provisions of Article 31 of the 1992 Constitution putting into contention whether Article 31(10) is even applicable in these times.

Aside it being questionable whether a state of emergency properly so called currently exists, there appears to be a caveat in Article 31(10). The law appears to authorise only measures that are reasonably justifiable for dealing with situations that exist during the period of an emergency.

The question to be answered is whether it is ever reasonably justifiable to deprive a person of his or her life arbitrarily or to subject a person to torture and inhuman treatment in taking measures to enforce a state of emergency. In my opinion the criminal process has been designed to do justice and determine what is reasonably justifiable by putting in place certain procedural safeguards that are antithetical to the curtailment of certain fundamental human rights. For instance, the following rights which are cardinal to the criminal process cannot be curtailed:

1. The right to be presumed innocent until proven guilty- This right can be found in Article 19(2)(c) of the 1992 constitution and constitutes a core principle of the criminal process and should not be abused.

2. Privilege against self-incrimination - This can be found in Article 19(10) of the 1992 Constitution which gives a person the right to remain silent once the criminal process is triggered.

3. Pre-charge detention limits- By Article 14(3) of the 1992 Constitution a person who is arrested, restricted or detained and not brought before a court of competent jurisdiction within forty-hours (48) should be released.

4. Right to legal representation- By Article 14(2) of the 1992 Constitution, any person who has been arrested, detained or restricted has the right to access legal representation.

5. Right to be treated with dignity - The law in Article 15(2) of the 1992 Constitution is that ‘no person whether or not he is arrested, restricted, detained shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment and any other condition that detracts or is likely to detract from his dignity and worth as a human being.

In addition to these rights, it must also be pointed out that once the criminal process is triggered, evidentiary rules such as proof beyond reasonable doubt cannot be detracted from. These are all procedural safeguards that are an intrinsic part of the criminal law which cannot be curtailed under any law.

Yet in practice, most often, the requirement for due process competes with the State’s pursuit to control the actions of people in such times as we find ourselves in because established procedural safeguards are seen as ‘costly barriers to the efficient pursuit of crime control.’

It is true that the law allows law enforcement agencies to use reasonable force in maintaining order and safety and carrying out an arrest. However, the question as to what constitutes reasonable force can be open-textured. Does the killing of a person that is alleged to have defied the president’s directives amount to the use of reasonable force? Does subjecting a person to torture amount to use of reasonable force? In the face of threat to public health and safety, actions of state officials that amount to inhuman and degrading treatment, detention of persons beyond the statutory forty-eight hours and presuming persons as guilty of crimes before giving them the necessary opportunity and facilities to defend themselves are justified as a necessary evil to ensure the greater security of the State.

The real question our law enforcement officials should be asking themselves in dealing with persons who breach the president’s directives is whether the force they are using is necessary in the circumstance to prevent a suspect from escaping arrest and being brought before the courts. If the police can effect an arrest of a suspect that breaches the presidential directives with minimal restraints, then it would be against the law to justify any abuse or killing of such a suspect under the guise of use of reasonable force.

It must also be noted that the interest to control the actions of people by criminalising such actions and the interest to insist on established criminal procedure rules are not competing interests.

Due process requirements operate in such a way that they are functional to crime control and ensure that justice is not only done to the State but also to a suspect or a person accused of a criminal wrong.

The exertion of radical measures such as beating and detention of persons that are suspected to have breached the president’s directives under the EIs should not be undertaken by state officials outside the constraints of firmly established procedural safeguards of our criminal law.

It must also be pointed out that a tested viable way to hold the Executive and public officials accountable and to avoid the abuse of powers given to them by Act 1012 and the EIs is to refuse to trade off or erode due process requirements under the criminal law.

Citizens must be educated to know that there are certain rights that cannot be curtailed in these times. This is the constitutional mandate of the National Commission for Civic Education and the institution must rise to the occasion to educate citizens and create an awareness on these rights that the law enforcement authorities must adhere to.

These are rights that are safeguarded by the criminal law itself which was introduced to deal with violations of the president’s directives. In times like these, judges are better positioned to determine whether the use of force by the law enforcement agencies and the abrogation of certain fundamental human rights is proportional to the risk to public health and safety that we face.

In conclusion, it has often been said that we are in unusual times but what will also be unusual will be the diminishing of the procedural safeguards that our criminal law affords.

History has taught us that our intolerance for the abuse of due process stems from the fact that our cherished doctrine of the rule of law cannot tolerate it. If we condone abuse, what we will be having is no longer the rule of law but the rule of the Executive arm of Government and its officials.