9TH APRIL 2018
OCCUPYGHANA® PRESS STATEMENT
THE DEFENCE COOPERATION AGREEMENT BETWEEN GHANA AND THE USA – MATTERS ARISING
OccupyGhana® has followed the debate over Parliament’s ratification of the Agreement Between the Government of the United States and the Government of Ghana on Defence Cooperation, the Status of United States Forces and Access to and Use of Agreed Facilities and Areas in the Republic of Ghana (“Agreement.”)
We have noted three primary reactions to the Agreement, namely those who (i) object to the Agreement in its entirety, (ii) think that we could have obtained better terms from the United States, and (iii) do not object to the Agreement at all. OccupyGhana respects all of these views.
We would however wish to raise three key issues:
First, we appreciate the fact that this Agreement was properly sent to Parliament for ratification. This is probably only the third time in the history of the Fourth Republic that such an agreement has been sent for parliamentary ratification. The first was the 2003 Bilateral Agreement between the Ghana Government and the Government of the United States Regarding the Surrender of Offenders to the International Criminal Court. The second was the GITMO-2 Agreement, which was only sent to Parliament for ratification after litigation and an order to do so by the Supreme Court.
OccupyGhana® believes that no such agreement, if required to be ratified by Parliament, should be assumed to be confidential. While deliberations over matters of defence and national security may require confidentiality, the starting point for agreements between states, which are of the utmost public interest, should be that where such agreements are to be ratified by Parliament, they would be made available to the public. Where confidentiality is genuinely required, we should ensure that firstly, such documents are formally given the requisite status under the State Secrets Act, 1962 (Act 101), and secondly, the security classification of such agreements is specifically agreed upon in negotiations so that the state-parties to them would have a uniform and reciprocal treatment of such documents in their respective jurisdictions.
Second, with the terms of the Agreement having been made public, there was no need for Parliament to have rushed its ratification. The speed to ratify the agreement on the last day of sitting and at a time when the vast majority of Ghanaians were realizing probably for the first time that we have such agreements, was not right. Ghanaians deserved more time to debate and assimilate its terms, which would have better informed our support of or opposition to it. The night time, acrimonious ratification proceedings was unfortunate. In addition, we cannot help but express our disappointment that the Right to Information Bill has not attracted this sense of urgency from this or any Parliament.
Third, we note that the Agreement, although ratified by Parliament, will not immediately come into force. According to article 19 of the Agreement, it will only come into force when the parties to it have exchanged the required diplomatic ‘Notes.’
This third issue raises the question whether the portion(s) of the Agreement that purport to grant diplomatic status, privileges and immunities to the members of the US Military, can come into force simply with parliamentary ratification or whether a Legislative Instrument is required to be laid in and passed by Parliament before the status, privileges and immunities may be applied to members of the US military covered by the Agreement.
Ghana passed the DIPLOMATIC IMMUNITIES ACT, 1962 (ACT 148), according to section 1 of the Act, to give “the force of law” to the receiving state obligations under “[a]rticles 22, 23, 24, and 27 to 40 of the Vienna Convention (which regulate the immunities and privileges, including exemption from taxation, freedom of communication, inviolability of premises and immunity from civil and criminal jurisdiction, to be conferred upon diplomatic agents.)”
These privileges and immunities apply automatically to “diplomatic agents” (which would include military attaches) and not to any other persons or organizations, including members of visiting military forces, who are ordinarily covered by the Visiting Forces Act, 1962 (Act 117). For all such other persons or organizations, section 2 of the Diplomatic Immunities Act demands that “[t]he President may, by legislative instrument, make Regulations extending any or all of the immunities and privileges conferred on diplomatic agents by virtue of this Act to prescribed organisations and prescribed representatives and officials, subject to such conditions and limitations as may be prescribed.” This provision empowers the President to extend the status, privileges and immunities to persons other than diplomats properly so-called. However, once the President elects to exercise this power, he is bound to act by or under a Legislative Instrument, which must be placed before and passed by Parliament under Article 11 of the Constitution.
Consequently, although other portions of the Agreement may come into force in accordance with the terms of the Agreement and after parliamentary ratification, the portions of the Agreement that purport to confer diplomatic status, privileges and immunities on the US Military and its agents would require a formal Legislative Instrument prepared by the President, and which Article 11 of the Constitution requires to be laid before Parliament for passage. That instrument would specifically prescribe the US Military as an organization to which Ghana is extending these rights and may contain conditions and limitations.
Indeed, in 1957 when Ghana passed the International Bank, Fund and Finance Corporation Act, 1957 (No. 17), it provided in section 3 that a Legislative Instrument was required before the officers of the World Bank, International Monetary Fund and International Finance Corporation would have the status, privileges and immunities that were agreed upon. Similar provisions exist in section 3 of the International Development Association Act, 1960 (Act 11) and the West African Examinations Council Act, 2006 (Act 719). We would also want to draw attention to the Diplomatic Immunities Instrument, 1978 (LI 1180) which extended certain immunities and privileges to the Science Education Programme for Africa (SEPA).
We do not think that Parliament’s ratification of the Agreement under Article 75 is a substitute for the requirement to pass a Legislative Instrument under Article 11(7) of the Constitution.
It is in the light of these that we call for a draft Legislative Instrument on the status, privileges and immunities provided for under the Agreement to be prepared and then we comply with Article 11 of the Constitution to bring those into force. At the very least it will give Parliament yet another opportunity to consider the relevant and affected portions of the Agreement, and hopefully this time with more soberness and less acrimony.
In service for God and Country.