Law in Crisis Series Two




The second seminar of the Law in Crisis Series, which was themed EXECUTIVE POWERS AND COVID-19, THE NEW NORMAL?, took place on Thursday, 7th May 2020 at 01:00 PM (GMT) over the online platform ‘Zoom’.

The panellists for the discussion were Prof. Edward Kofi Quashigah, Immediate past Dean of the University of Ghana School of Law (UGSoL); Prof. Henry Kwasi Prempeh, Centre for Democratic Development Ghana; Ms. Maame Abena Mensa-Bonsu, PhD Candidate of Oxford University; Dr. Peter Atudiwe Atupare, Dean of the Faculty of Law, University of Cape Coast; and Prof. Patrick Loch Otieno Lumumba, Fmr. Director, Kenya School of Law. Diana Asonaba Dapaah of the GIMPA Faculty of Law moderated the second in the series of seminars.

The session explored relevant thematic areas, namely the nature of the emergency powers assumed by the Executive; the implications of the Executive Power on Fundamental Human Rights; how the Executive powers can be checked to prevent abuse during this pandemic; the legality of EI 64 in restricting citizens’ entry into Ghana; how the Executive powers can be rolled back after the pandemic; the possibility of the Public Health Act taking care of the situation; and finally, the role of Regional Organizations to party states.

In addressing the nature of COVID-19 as an emergency, both Prof. Quashigah and Ms. Mensa-Bonsu agreed that the pandemic was to be classified as a low level emergency. The former dean of UGSoL explained that high level emergencies have the potential to undermine the very existence of the 1992 Constitution of Ghana. However, as is the case with low level emergencies, COVID-19 did not have the capacity to undermine the stability of the nation so a resort to Article 31 was not necessary. The consequence of this distinction was that the State of Emergency provisions could be used to address high level emergencies, whereas ordinary legislation was to be used for low level emergencies.

Prof. Henry Kwasi Prempeh, on the other hand, disagreed with the position that C0VID-19 was such a low level emergency for which reason Article 31 could not be triggered. In explaining his stance, he mentioned that in Article 31(9), the circumstances under which a State of Emergency could be declared included a natural disaster, and mentioned that if the occurrence of a natural disaster was among the circumstances for which Article 31 could be triggered, he did not see why a pandemic of this nature and magnitude could not be such a situation as could fall under Article 31.

Regarding the implications of Executive Power on Fundamental Human Rights, Dr. Atupare began by stating that the drafting of law enforcement and national security issues into this pandemic was the most dangerous thing to contemplate. Continuing, he mentioned that the right to privacy did not fall under Article 21 for the purpose of the Emergency Communications System Instrument, 2020 (EI 63). The only rights that fell under Article 21 for purposes of EI 63 were the freedom of speech and expression and the right to information; the right to privacy was provided for in Article 18, which meant that provisions under Article 18 had been moved into Article 21 for the purpose of the EI. Explaining further, he hinted that such a situation could create the presumption of derogation. However, to derogate two elements have to be satisfied; departure from regular law and justification for the departure. In the present situation, he was unsure whether the departure from the right to privacy could be justified by relying on Article 21 alone.  In concluding, he was emphatic that in circumstances like these, a derogation did not mean abrogation or cancellation of a right. EI 63, which he described as defying the logic of legislation, was therefore a potential threat to the people’s right to privacy.

On the issue of the Imposition of Restrictions Act, 2020, Prof. Lumumba proposed that it was designed specifically to confer powers on the Executive to deal with the pandemic, hence the powers it conferred could not be said to be plenary in nature. By parity of reasoning, those powers are comparable to an extent to the powers in the emergency provisions. He suggested that this route was taken because the Executive did not intend for its actions to be delayed or under the constant scrutiny of the legislature. The test prescribed by the Constitution was, in his opinion, still alive and well.

The second seminar generated engagements on UGSoL’s social media platforms. 856 people joined on Zoom, 1307 streamed on YouTube and Facebook had a total of 12,502 posts centred on the conversation.