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Opinions of Monday, 3 December 2018

Columnist: Daniel Korang Esq.

Curfew: Legal effect and punishment for its violation

Introduction

Since time immemorial the imposition of curfew has been an effective tool in the armoury of governments or state authorities to control crime, violence, disturbances and other occurrences that disturb public peace. A curfew is an official order - usually given under an Executive Instrument – directing persons within a specified area to remain indoors within a stated time. A curfew is not supposed to be imposed as a punishment.

It is often imposed by a government to maintain public order, security or peace. Curfews have proved to be effective in restoring peace in areas that are plagued by ethnic wars, chieftaincy conflicts, political violence and other forms of civil unrests.

Regrettably, security officers who are legally mandated to enforce curfews often commit heinous crimes and engage in atrocious abuses of human rights in areas affected by the curfews. The author’s primary focus in this article is to explore the legal effect of a curfew, the penalty for violation of curfew and the scope of the mandate of law enforcement personnel during curfew hours.

B. Legal Effect Of A Curfew Curfews in Ghana are governed by the Public Order Act, 1994 (Act 491). Section 4 of Act 491 vests the power to impose curfew in the Minister for the Interior. Legally, a curfew is imposed when the Minister “considers that it is reasonably required in the interest of defence, public safety, public health, the running of essential services or the protection of the rights and freedoms of other persons”. Under the law, a curfew can be imposed to affect a part only of the country; no curfew can lawfully be imposed in the whole of Ghana. On imposing a curfew, the Minister is enjoined to notify Parliament as soon as practicable thereafter. A curfew cannot be imposed for a period exceeding seven days at a given time, but it may be extended.

A curfew is restrictive in nature. It places enormous limitations on the rights of persons within the affected area, including their freedom of movement. Section 4(5) of Act 491 relevantly states that where a curfew is imposed, “no person shall be out of doors between such hours as may be specified in the instrument except under the authority of a written permit granted by such person as may be specified in the instrument”.

What this means is that it is unlawful for a person to be out of doors during the period specified in the instrument to be the period of the curfew. However, the instrument may exempt certain persons or class of persons from the effect of the curfew. Thus section 4(6) of Act 491 states that “[a]n instrument imposing a curfew may exempt from its operation such persons or classes of persons as may be specified in it”. In practice, personnel of security services are usually exempted from the operation of a curfew. And this is explicable: they enforce or implement the curfew, by ensuring that people comply with it. It must be emphasized that a curfew has the force of law, even though it is an executive order. Every curfew is imposed under the authority of law. A curfew is a law that must be obeyed by the persons within the affected area. As to its scope, anyone within the affected area is bound by the curfew; it affects everyone who is found within the geographical boundaries of the affected area.

C. Penalty for violation of a curfew

The question as to the penalty for violation of a curfew is a vexed one, particularly in Ghana. Traditionally, where a curfew is imposed in an area, military and police personnel are deployed to the area to ensure compliance with the curfew. What are the powers of these personnel? What are they legally mandated to do to ensure compliance? Are they permitted by law to beat or brutalise persons who violate the curfew?

Often, persons who are seen out of doors during the period of the curfew are subject to crass physical brutalities by the enforcing security personnel. Violators are sometimes beaten up, manhandled, or even killed. But what is the penalty for violation of a curfew?

Section 9(d) of Act 491 provides in relevant part that a person who acts contrary to a curfew commits a criminal offence and is liable on conviction to a fine or imprisonment for a term not exceeding one year or to both. It is clear from this section that it is a criminal offence for a person to act contrary to a curfew. And the penalty for such violation is a fine or imprisonment or both. Under our law, it is only a court exercising criminal jurisdiction that can impose punishment for a criminal offence.

Beatings or brutalities are unknown to the law. Military and police officers enforcing a curfew are legally required to arrest offenders and prosecute them. It is only a court of competent jurisdiction that can punish a person who violate a curfew. Any other punishment is extra-judicial and therefore unlawful.

The law does not give military or police officers power to beat up persons who act contrary to a curfew. Indeed, it is unlawful for a military or police officer to beat up or physically abuse or manhandle an offender during curfew hours. A person may lawfully resist any such illegality by fighting back or using any reasonable means to defend himself.

D. Conclusion

Indeed, situations that necessitate the imposition of curfews often involve highly emotional sentiments and deep-seated opposing “claims of right” characterized by partisan cultural, religious or customary dissensions. Violence does not break without reasons. But the law is supposed to be a neutral and final arbiter of our differences. Indeed, the brightest ideas and plans to solidify our incipient democracy will remain mere pipe dreams if law enforcers resort to lawlessness in enforcing the law.

A curfew is law, and it must be enforced lawfully. It is a criminal offence for a person to violate a curfew, and punishments must be imposed by a court. It is unlawful for military and police officers tasked to enforce curfew to resort to extra-judicial measures such as beatings, brutalities or killing of offenders. In a democracy, law is best enforced when due process is observed.

Daniel Korang Esq.

Adom Legal Consult

4th Floor, Cocoa House

Sunyani