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The two 'Gitmo' detainees
The two 'Gitmo' detainees

Supreme Court orders State, petitioners for further submissions on 'Gitmo 2' case

The Supreme Court yesterday ordered the state and two persons, who are challenging the transfer into Ghana of two former Guantanamo Bay detainees by the United States of America (USA), to file further submissions.

Judgement in the suit was expected to be given by the apex court yesterday but the seven-member panel, presided over by Mr Justice William Atuguba, was of the view that further submissions by the two parties were necessary to enable the court to bring finality to the matter.



According to the court, the case was monumental and could have far-reaching consequences for the country, hence the need for all aspects of the case to be considered in order to make its determination stand the test of time.

The applicants, Margaret Banful and Henry Nana Boakye, dragged the Attorney-General (A-G) and the Minister for the Interior to the Supreme Court for a declaration that the continued stay of Mahmud Umar Bin Atef and Muhammed Salih Al-Dhuby in Ghana is unlawful.

They also want an order directed at the Interior Minister to immediately return the two detainees to the US government.

Submissions

Per the directions given by the court, the two plaintiffs and the A-G must file their respective positions on whether or not Ghana could unilaterally abrogate any international agreement if that agreement contravenes the 1992 Constitution.

Since the presence of the two former detainees also bordered on the security of the country, the court wants the two parties to also state their positions on Articles 83, 84 and 75 of the 1992 Constitution.

Articles 83 and 84 make the National Security Council (NSC),  the body solely responsible for internal and external security of the country, while Article 75 mandates the President to execute international treaties subject to ratification by Parliament.

The court, therefore, wants the two parties to expose arguments as to whether or not the NSC could take decisions which relates to the security of the country, such as the transfer of the two detainees into the country, without parliamentary approval.

The state and the legal team of the two plaintiffs are supposed to file their submissions before or on May 24, 2017 while judgement of the case will be on June 22, 2017.

Reliefs

The two applicants are praying the Supreme Court for “a declaration that on a true and proper interpretation of Article 75 of the 1992 Constitution of Ghana, the President of the Republic of Ghana, by agreeing to the transfer of Bin Atef and Al-Dhuby (both former detainees of the Guantanamo Bay) to the Republic of Ghana, required ratification by an Act of Parliament or a resolution of Parliament, supported by the votes of more than one-half of all members of Parliament.”

According to them, the President acted unconstitutionally in his failure to obtain the requisite ratification by an Act of Parliament or a resolution of Parliament when he agreed with the government of the US to transfer the two former detainees to Ghana.

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