NEW PATRIOTIC PARTY vs . INSPECTOR-GENERAL OF POLICE AND OTHERS [1993]DLSC4385

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NEW PATRIOTIC PARTY vs . INSPECTOR-GENERAL OF POLICE AND OTHERS [1993]DLSC4385

Date	1993-11-30
Suit No.
DL Citation No.	[1993]DLSC4385

• ARCHER CJ

• FRANCOIS JSC

• AMUA-SEKYI JSC

• AIKINS JSC

• WIREDU JSC

• BAMFORD-ADDO JSC

• HAYFRON-BENJAMIN JSC

[1993]DLSC4385
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 <main id="main" class="content" style="min-height: 60rem" >NEW PATRIOTIC PARTY<o:p></o:p>vs .<o:p></o:p>INSPECTOR-GENERAL OF POLICE AND OTHERS<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992-93]
2 G B R&nbsp; 586 - 628&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30 NOVEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MARTIN AMIDU, DEPUTY ATTORNEY-GENERAL,
WITH HIM, MRS POBEE-ORLEANS AND MRS ADUSA-AMANKWA, FOR THE DEFENDANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

P
A ADJETEY, WITH HIM, SAM OKUDZETO, NANA AKUFO-ADDO, AFRAM ASIEDU AND MISS
GLORIA AKUFFO, FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ARCHER
CJ, FRANCOIS JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC, BAMFORD-ADDO JSC,
HAYFRON-BENJAMIN JSC<o:p></o:p>

</div>ARCHER CJ. I have had a
preview of the reasons written by my brother Hayfron-Benjamin and I agree with
them but I wish to add a few words to demonstrate that police permits are
colonial relics and have no place in Ghana in the last decade of the twentieth
century.<o:p></o:p>My brother has mentioned
the Criminal Code 1892 but I want to mention one particular Ordinance also
enacted in the same year. It is the Native Customs (Colony) Ordinance (Cap 127)
passed on 15 July 1892. This ordinance restricted the celebration of native
customs without the permission in writing of the District Commissioner in
certain towns in the Colony namely Accra, Ada, Axim, Cape Coast, Discove,
Elimina, Keta, Prampram, Saltpond, Sekondi, Shama, Winneba, Anomabu, Apam,
Christianborg, Kormantin, Labadi, Moree and Manford. Krobo customs like Dipo
were also prohibited. Penalties were imposed for violations of these
restrictions and prohibitions. A District Commissioner was also empowered to make
an order prohibiting the holding of company meetings in a public place of ten
or more members of a native company under the direction of a supi or headman.
Company flags or tribal emblems could not be exhibited without the permission
in writing of a District Commissioner. The police were given powers to seize
such items.<o:p></o:p>Then on 1 July 1922 when
the Police Force Ordinance (Cap 37), section 54 was enacted, the police were
given powers to regulate traffic by stopping or diverting the course of
traffic. The Governor-in-Council was also empowered to make regulations with
respect to the assembling and movements of meetings and processions in public
ways and public places. It is interesting to note that section 54, sub-section
3 of the Police Force Ordinance (Cap 37) and the Native Custom Ordinance 1892
prevailed until they were repealed by the Public Order Act 1961 (Act 58), which
introduced police permits for meetings and processions in public places.<o:p></o:p>It seems incongruous that
legislation that was originally meant to control Asafo companies, yam festivals
and fetishes a century ago should be allowed to develop into hideous and ugly
tumours on the near immaculate face of our present constitution. Those who
introduced police permits in this country do not require police permits in
their own country to hold public meetings and processions. Why should we
require them?<o:p></o:p>Article 21 of our
constitution guarantees freedom of assembly including freedom to take part in
processions and demonstrations. This provision is in consonance with similar
provisions in the United Nations Charter on Human Rights, although Ghana was
not a signatory in 1948 because it was a British Colony at the time. The
Organisation of African Unity has produced an African Charter on Human and
Peoples’ Rights, article 11 of which reads:<o:p></o:p>“Every individual shall have the right
to assemble freely with others. The exercise of this right shall be subject
only to necessary restrictions provided for by law in particular those enacted
in the interest of national security, the safety, health, ethics and rights and
freedoms of others.”<o:p></o:p>Ghana is a signatory to
this African charter and member states of the Organisation of African Unity and
parties to the charter are expected to recognise the rights, duties and freedom
enshrined in the charter and to undertake to adopt legislative or other
measures to give effect to the rights and duties. I do not accept that the fact
that Ghana has not passed specific legislation to give effect to the charter,
the charter cannot be relied upon. On the contrary, article 21 of our
constitution has recognised the right of assembly mentioned in article 11 of
the African charter.<o:p></o:p>It follows that section 7
of the Public Order Decree 1972 (NRCD 68) is not only inconsistent with article
21(1)(d) of our constitution but is also in contravention of article 11 of the
African Charter on Human and Peoples’ Rights adopted by the Assembly of African
Heads of State and Government in June 1981 in Nairobi, Kenya.<o:p></o:p>Finally, I would urge that
the whole Public Order Decree 1972 (NRCD 68) should be reviewed and modernised
in its entirety to enable the Police Service to carry out its duties
effectively without contravening any provisions in our current constitution.<o:p></o:p>FRANCOIS JSC. I have been
privileged to read in advance the reasons given by my learned colleagues for
the unanimous decision we gave on 22 July 1993. They are full, comprehensive,
and with a main thrust that accords with my perception of the matter. I see no
reason therefore to reduplicate the efforts of my learned brethren by writing
reasons of my own. I am content to endorse the reasons given.<o:p></o:p>AMUA-SEKYI JSC. It is an
axiom of British parliamentary democracy that parliament is supreme. This means
that parliament may pass any laws that it considers ought to be made. If it
takes a mistaken view of the public interest and passes laws that are inimical
to the welfare of the community or a section thereof, its error must be
corrected by itself, and not by any outside body such as the courts. In this system
of government, much faith is placed in the good sense of those who, for the
time being, wield power. It works best in a society where tolerance of
divergent views is regarded as necessary for the well being of the community.
But where those who hold differing views are looked upon as subversive, it
breaks down completely and becomes tyrannical.<o:p></o:p>In the immediate
post-independence period, our courts took the view that in the Ghana
(Constitution) Order-in-Council 1957, our former rulers had left us the kind of
democratic government that they knew; that is, one in which parliament had
unlimited power to make law. On this basis, our courts upheld the validity of
the Deportation Act 1957 under which aliens who were believed to be sympathetic
to the political parties opposed to the Government were deported from the
country; the Deportation (Othman Lardan &amp; Amadu Baba) Act, 1957 which
brought court proceedings challenging deportation orders to an abrupt end: see
Lardan v Attorney-General (No 2) (1957) 3 WALR 114; the Deportation (Indemnity)
Act 1958, which barred the courts from punishing the Minister of the Interior
and the Acting Commissioner of Police for their contempt in carrying out a</main>