2 Petition Supreme Court to nullify Ghana-US military defence pact

BY: Emmanuel Ebo Hawkson

Two individuals have initiated separate legal actions at the Supreme Court to nullify the Ghana-United States of America (USA) military defence co-operation pact which was ratified by Parliament on March 24, 2018.

The legal actions were initiated by Yaw Brogya Genfi, the Ashanti Regional Youth Organiser of the National Democratic Congress (NDC), and Emmanuel Kotin, a security expert, against the Attorney-General (A-G) and the Minister of Defence.

The defence agreement allows the US military and civilian personnel access to certain facilities in Ghana and provide them privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961.

Ghana is also expected to benefit from aid package in excess of $20 million from the USA in the areas of training and grant.

“No execution”

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But, in their separate suits, Genfi and Kotin say the agreement is invalid because the ratification by Parliament was unconstitutional

According to them, the President of Ghana failed to execute the agreement as prescribed by Article 75 of the 1992 Constitution before sending it to Parliament for ratification.

Article 75 (1) of the 1992 Constitution states: “The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.”

Clause (2) of Article 75 adds: “A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by: (a) Act of Parliament; or (b) a resolution of Parliament supported by more than one-half of all the members of Parliament.’’

It is the case of Genfi and Kotin that the President’s failure to execute the pact before sending it to Parliament makes the agreement null and void.

They, therefore, want a declaration from the Supreme Court that the Minister of Defence violated the 1992 Constitution when he laid an unexecuted draft of the agreement before Parliament for ratification.

More reliefs

With regard to his legal action, Kotin wants a declaration from the court that since the pact was not executed between the government of Ghana and the USA, “there was nothing before Parliament to be ratified’’.

Genfi, in his suit, further wants a declaration from the court that the agreement is not in the interest of Ghana because it excludes Ghanaian courts from adjudicating over its terms and conditions, while it also grants the USA unfettered access to Ghana’s borders and telecommunications infrastructure.

According to him, the agreement is also not in the interest of Ghana because “it waives the right to the enforcement of judicial rights of Ghanaians who may be adversely affected by the operation of the agreement’’.

The NDC stalwart is also seeking an order from the apex court to set aside the defence pact.

Brouhaha over agreement

Before and after its ratification by Parliament, the defence pact was criticised by opposition political parties such as the NDC and the People’s National Convention (PNC).

On the day of its ratification, hundreds of demonstrators marched to Parliament to protest against the endorsement of the agreement.

Some top opposition party officials stormed Parliament, wearing red armbands, to express their displeasure with the pact.

Despite assurances from the government that the pact will deepen defence cooperation between Ghana and the US and further enhance the security of the country, critics say it means that Ghana has sold its sovereignty to the US.

 Some political parties and civil society groups have indicated that they will soon hit the streets to demonstrate against the pact.

Portions of the agreement

Article Three of the agreement accords the US military and civilian personnel the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961.

Article Four makes provision for the entry into and exit from Ghana of US military and civilian personnel using a US government-furnished identification.

Under Article Five, the government of Ghana agrees to provide access to and use of agreed facilities and areas in Ghana for US forces, contractors and other mutually agreed persons.

Article Six provides that "all existing buildings, non-relocatable structures and assemblies affixed to the land in agreed facilities and areas, including ones altered or improved by United States forces, remain the property of Ghana".

It indicates that buildings constructed by the US forces "shall become the property of Ghana once constructed, but shall be used by the United States forces until no longer needed by United States forces".

Articles seven and eight are on prepositioning and storage of equipment, supplies and material and the responsibilities for the protection, safety and security of US forces and contractors.

Under Article Nine, the US forces are empowered to conclude contracts for the acquisition of goods and services in accordance with the laws of the US, and such contracts are to be tax free.

Article 10 exempts the US forces from the payment of any tax or similar charge assessed within Ghana, while Article 12 provides for the freedom of movement in Ghana of vehicles, vessels and aircraft operated exclusively for the US forces.