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Mahama Administration: GITMO 2 Unconstitutional because of lack of Parliamentary approval.


A seven-member Supreme Court panel presided over by Chief Justice Sophia Akuffo, has by 6 -1 majority decision, maintained as unconstitutional the decision by former President John Mahama to admit two Guantanamo Bay detainees into the country during his term in office. This was by reason of an arrangement between the then Mahama government and the United States without a prior approval by Parliament. The court, therefore, ordered that the government must send the agreement to Parliament for ratification within the next three months or have the two detainees sent back to the United States.

The majority judgment read by Chief Justice Sophia Akuffo posited that, the then President, John Mahama, required the approval of Parliament before entering into any international agreement, just as in the case of the two detainees.

While six justices approved the decision, it is reported that only Justice William Atuguba dissented. There was a massive controversy in January, 2016, when the then President decided to admit to Ghana two terror suspects- Muhammed Al-Dhuby and Muhammed Bin-Atef- into the country. The two detainees, Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhuby, who were in detention for 14 years after being linked with terrorist group Al-Qaeda, were brought to Ghana, for a period, after which they were expected to be reintegrated in their home countries.

The two were picked up in Yemen in 2002, sent to Guantanamo Bay where they were held for more than a decade until ex-president John Mahama decided to accept the two into Ghana’s jurisdiction as part of President Barack Obama's efforts to close down the Guantanamo Bay detention center.


Background

Two Ghanaian citizens, Margaret Bamful and Henry Nana Boakye, sued the Attorney General and Minister of Justice, together with the Minister of Interior, accusing then-President, John Dramani Mahama of unlawfully bringing in the two former Gitmo detainees. They argued the agreement was an international treaty which required ratification by Parliament and therefore proceeded to the Supreme Court for a true and proper interpretation of Article 75 of the 1992 Constitution.

The Article (75) (2) reads: "A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by- (a) Act of Parliament; or (b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament."

They further sought a “declaration that on a true and proper interpretation of Article 58(2) of the 1992 Constitution of Ghana, the President of the Republic of Ghana, who is under an obligation to execute and maintain the laws of Ghana breached the Anti-terrorism Act of 2008 (Act 762) and the Immigration Act of 2000 (Act 573), both being laws passed under the 1992 Constitution of Ghana.
The plaintiffs also sought a declaration that President Mahama breached Article 58(2) of the 1992 Constitution by agreeing with the United States government to have the former Gitmo detainees transferred into the country.


Ghanaians said government’s decision to host the two was a threat to national security, but Government insisted the two men posed no threat.

In January 2016, the United States Embassy in Ghana, assured Ghanaians that the presence of the two former detainees, posed no threat to the security of the country.

“The two detainees that were transferred to Ghana have already arrived…we don’t have access to the specifics of their whereabouts, you have to go to the government of Ghana for that,” Public Affairs Counselor at the US Embassy in Ghana, Daniel Fennell said.

The reason for accepting the suspects was not explained but the decision triggered widespread criticisms from the then opposition NPP, civil society organizations and religious groups.

The former president in defense of the action said the two suspects were innocent young boys who were picked up in their countries, jailed for years without trial and deserved some compassion.

He appealed to Ghanaians to host the two suspects at least for two years.

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