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Opinions of Saturday, 2 February 2019

Columnist: Nii Adokwei Cudjoe

When National Security commits a constitutional crime

I was thinking about the question of "who are these 'NSC' Armed men" last night. I am excited to read the article below, which takes part of the burden I had; to wit, the general understanding of the legality or otherwise of the "NSC" Armed men. But my concern was focused on one key question; to wit: whether or not the National Security Council can raise Armed men.

I am satisfied, from my reading and understanding of the relevant laws of Ghana, that the National Security Council (and/or any person acting on its authority/instructions/delegation) has committed an illegality when it purports to have the power to raise Armed men by itself.

It is instructive to note the principle of public law is that a public Official cannot do anything except that which the law allows or permit. This principle allows/enjoins a citizen to proceed to the High Court to ask the public Official "quo warranto", (where is your warrant/the source of your authority)?! The limit placed on the public Official goes further to require that the office in question give the public, by way of Regulation, notice of how it will exercise its discretion. Article 296 of the 1992 Constitution.

I am therefore of the opinion that Sections 15 and 20 of the Security and Intelligence Agencies Act 1996 (Act 526) does NOT (and should NOT be interpreted to) mean "power to employ or make appointment of persons to perform functions of armed law enforcement officers".

Section 15 deals with employment in the Bureau of National Investigation and the Research Department (of the Ministry of Foreign Affairs). See Section 10 of the Act.

Section 20 of the Act deals with the employment of (supporting) staff required to assist the National Security Coordinator in the performance of his functions (which functions are clearly defined in Section 19 of the Act and same in no way include performing functions requiring the use of arms, and therefore no cause to have armed employee, except someone who is seconded from one of the security agencies established by law)

To see therefore that the armed-masked men who paraded the Ayawaso West Wuogono as "NSC" Armed men means a constitutional crime has been committed, one has to do four things. First, reference must be made to Section 42 of the Act where ""employee" means a person who is appointed as an employee of the intelligence agencies or has become an employee of an agency under this Act whether by transfer, secondment or otherwise;" ""intelligence agencies" means the internal or external agencies referred to in Section 10;" ""security services" means the services connected with national security as determined by the Council;" and ""threats to security" includes (c) activities within or relating to the Republic directed towards or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a POLITICAL objective within the Republic or a foreign state."

How does the National Security Council recruit the said Armed men, if same are not seconded personnel of the security agencies established by law?

Second, reference must be made to Article 3(2) of the 1992 Constitution which states "Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or any class of persons, or persons generally is unlawful.

It should be noted that the Police Service (Private Security Organization) Regulations 1992 (LI 1571) makes it mandatory to register to operate private security and to obtain license for each person employee in private security. Part 2 of LI 1571 gives the IGP duty to approve uniforms used by private security and firearms. Here, this point must be made that the Police National Operations Director denied on national radio that the Police knows those masked Armed men. Very interesting and instructive.

Third, reference must be made to Article 85 of the 1992 Constitution, which states "No agency, establishment or other organization concerned with national security shall be established except as provided for under this Constitution."

Fourth, in the 1992 Constitution, under Articles 83 and 84, read together with Articles 190(1), and Chapters 15, 16, and 17, the meaning of Article 85 of 1992 Constitution is properly defined (to wit, security services established by the 1992 Constitution).

It is instructive to point out the provision of Section 1 of the Armed Forces Act 1962 (Act 105). It reads "Raising of Armed Forces
There shall be maintained, pursuant to article 210 of the Constitution, and in accordance with this Act and with the Regulations the Armed Forces consisting of the Army, the Navy and the Air Force and any other services for which provision is made by Parliament."

It is therefore my submission that the Security and Intelligence agencies Act only provide that the power of National Security is defined and limited to gathering intelligence. The Act exclude the raising of armed men (which can only be done by an Act of Parliament). Accordingly, the misconception that National Security is at liberty to raise Armed men is foreign to the laws of Ghana. Section 41 of the Security and Intelligence agencies Act required that the National Security Council, by legislative instrument, make Regulation for the effective implementation of the Security and Intelligence agencies Act (in the same manner as there is a Regulation for the implementation of the Police Service Act, the Armed Forces Act, the Immigration Service Act, the National Fire Service Act, the Customs, Exercise and Preventive Service Act, the Maritime Security Act etc).

Where there is no such amendment to the Security and Intelligence agencies Act permitting the raising of armed men and where there is no Regulation giving effect to provisions of the same Act, I humbly submit that the National Security Coordinator, to the extent this Public Office purports to set up a security agency distinct and separate from the Bureau of National Investigation and Research Department, has committed a constitutional crime contrary Article 85 of the 1992 Constitution.

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