The Supreme Court has described as unconstitutional the decision by ex-president John Mahama to accept into Ghana two terror suspects from the Guantanamo Bay in Cuba.
The court in a 6-1 majority decision ruled the action by the then president was in breach of Article 181 of the constitution which required that all international agreements be brought before Parliament for ratification.
Justice William Atuguba was the only dissenting judge, Joy News’ Joseph Ackah Blay reported.
The court has subsequently ordered the executive to, within the next three months, either bring the agreement to Parliament for ratification or send the two suspects back to where they came from.
There was a huge controversy in January 2016 when the president decided to admit to Ghana two terror suspects- Muhammed Al-Dhuby and Muhammed Bin-Atef- into the country.
The two had been held in Guantanamo Bay by the US for over 14 years on suspicion of being part of the September 11 terrorist attack in the US that claimed dozens of lives in the US.
The two were picked up in Yemen in 2002, sent to Guantanamo Bay where they were held for more than a decade until ex-president John Mahama decided to accept the two into Ghana’s jurisdiction as part of President Barack Obama’s efforts to close down the Guantanamo Bay detention center.
The reason for accepting the suspects was not explained but the decision triggered widespread criticisms from the then opposition NPP, civil society organisations and religious groups.
The ex-president in defence of the action said the two suspects were innocent young boys who were picked up in their countries, jailed for years without trial and deserved some compassion.
He appealed to Ghanaians to host the two suspects at least for two years.
But some two individuals were not impressed with the president’s appeal for compassion
The two- 86 year old retired conference officer at the Ministry of Foreign Affairs, Margaret Bamfo and a student at the Ghana School of Law, Henry Nana Boakye- decided to challenge the decision in court.
They argued the agreement was an international treaty which required ratification by Parliament and therefore proceeded to the Supreme Court for a true and proper interpretation of Article 75 of the 1992 Constitution.
The Article (75) (2) reads: “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 the votes of more than one-half of all the members of Parliament.”
They further sought a “declaration that on a true and proper interpretation of Article 58(2) of the 1992 Constitution of Ghana, the President of the Republic of Ghana, who is under an obligation to execute and maintain the laws of Ghana breached the Anti-terrorism Act of 2008 (Act 762) and the Immigration Act of 2000 (Act 573), both being laws passed under the 1992 Constitution of Ghana.
The plaintiffs also sought a declaration that President Mahama breached Article 58(2) of the 1992 Constitution by agreeing with the United States government to have the former Gitmo detainees transferred into the country.
The court after several months of hearing ruled Thursday in favour of the plaintiffs, Joseph Ackah Blay reported.
The NPP, whose officials challenged the decision whilst in opposition, now as a government, has at least three months to rectify the anomaly or send the two suspects to the US.