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Opinions of Monday, 23 March 2020

Columnist: Smart Brown

Guure Brown Guure writes: The Imposition of Restrictions Act is of no use


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Last Friday [20th March 2020], Parliament passed the Imposition of Restrictions Bill into law, and I believe it's on its way to the president's desk for his assent. Once the president does this, voola: we have a new law in place, ostensibly to deal with the Coronavirus. Right? You couldn't be more mistaken! The IRA is of no use, and would certainly not do a hoot to curtail the risk of COVID-19.

But you are not alone in this malaise. Many are of the mistaken belief that this law gives legal effect to the announcement by the president suspending public gatherings, including church services, schools, mosques etc. In fact, it appears the president believes so too, as could be inferred from his statement that he had tasked the AG to regularise his ban by placing a bill before parliament to that effect.

But the IRA does not! In fact, the IRA is but a useless law. There's nothing new in it that the president can rely on that he could not do before its enactment, of course, subject to the procedural guidelines spelt out in the constitution.

All the president needed to do was to declare a state of emergency in line with Art.31 of the constitution, and have same sent to parliament for ratification. The IRA is not an emergency declaration and as things stand there is no such declaration to invoke the IRA.

It must be stated for the avoidance of doubt that the IRA is inoperative until a state of emergency is declared by the president and ratified by parliament. At the moment it is a dormant law.

Besides, the powers sought by the Executive in the IRA are already available in a number of other Acts; the Emergency Powers Act, the Public Order Act, the Public Health Act, the Immigration Act etc.

The framers of the IRA simply confused the suspension of our civil liberties in times of an emergency with the limitation of rights in normal times. The former is regulated by Art.31 of the constitution whereas the latter is not.

The reason is simple: suspension of our liberties in times of emergencies may include almost any conceivable activity short of taking our breath away- which is why it is heavily regulated by Art.31, beginning with how it is to be declared, it's the initial validity period of 7 days- renewal for another 90 days and dropped down to every four weeks where and when necessary.

What the IRA seeks to do rather bizarrely is to attempt to suspend our civil liberties through the back door (under Art. 21) surreptitiously avoiding the constraining provisions in Art.31, including parliamentary oversight- designed to put the president in check. This amounts to a futile attempt to usurp the mandate of parliament. But it's our lame-duck parliament itself that surrendered for partisan reasons.

I say futile because anytime the president declares a state of emergency in order to operationalise the IRA, he will be caught by Art. 31 with all its claws and would have to navigate through them as was intended by the framers.

In other words, any attempt to operationalise IRA cannot avoid the Emergency Powers provisions. The president, in any such event shall have to explain (in an accompanying narrative) to parliament and to Ghanaians why he is declaring a state of emergency- stating same in certain, unambiguous and specific terms- not the broad, speculative and whimsical terms presented in the IRA.

In sum,

1. Ghana is not in a state of emergency because the president has not declared so.

2. Therefore the Imposition of Restrictions Act is impotent, inoperative and of no effect.

3. No one or group of persons can be restrained, arrested or prosecuted based on the IRA until a state of emergency is declared under Art. 31, whereupon the Executive shall also have to abide by the safeguards to persons who may be caught on the wrong end of any such proclamation.

4. The framers of the IRA wasted everybody's time, including the president's.

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