HUMAN RIGHTS AND TERRORISM
substantive and procedural legal requirements, policy considerations and policy implementation. A few areas which stand out clearly are the following: Respect for the right to life Absolute prohibition of torture, inhuman and degrading treatment and punishment
Right to liberty Right to fair trial Right to privacy Ghana’s Anti-terrorism legislation seeks to address a number of terrorist concerns as contained in its long title: ‘An Act to combat terrorism, suppress and detect acts of terrorism, to prevent the territory, resources and financial services of this country from being used to commit terrorist acts, to protect the right of the people in this country to live in peace, freedom and security and to provide for connected purposes.”8
Ghana’s legislation contains most of the salient features of the draft UN Comprehensive Convention on Counter- terrorism. It also addresses a number of the sticky points of definition which has bedeviled the UN draft convention. For instance, while it does not seek to diminish the other rights, obligations and responsibilities of citizens and the Republic under international law in its human rights and humanitarian aspects, it excludes terrorist acts in situations of armed conflict if the conflict is in accordance with the rules of international law. It also excludes from terrorist acts activities of the armed forces during armed conflict and exercise of their official duties in accordance with international law.9
An important human rights attribute of Ghana’s legislation is that it does not make a terrorist act a capital offence in which case the death penalty will apply. It provides for a term of imprisonment of not less than seven years and not more than
twenty-five years.10 However, a
person accused of a terrorist act will not be admitted to bail since the legislation has amended section 96 (7) of the Criminal Procedure Code of 1960 by adding terrorist offences to offences to which an accused is not entitled to bail.11
To that
extent, the sanctity and right to life are preserved while the non- admissibility to bail invades the right to liberty albeit temporary. The legislation also invades the right to privacy in as much as it gives power for a Senior Police Officer to apply to the court ex parte with prior approval of the minister (in this case the Attorney-General) to intercept communications for purposes of obtaining evidence of commission of an offence under the Act. This power extends to a situation in which the said Senior Officer can enter a premises and install devices for the interception and retention of specified communication where there is reasonable suspicion that an offence has been committed under the Act.12 A related legislation as part of Ghana’s counter-terrorism measures is the Anti-Money Laundering Act of 2007.13 This legislation establishes a Financial Intelligence Centre which aims, among a range of objectives, to:
(a) Assist in the identification of proceeds of unlawful activity and the combat of money laundering activities
(b) Make information available to investigating authorities, the intelligence agencies and the revenue agencies to facilitate the administration an enforcement of the laws of the Republic
(c) Exchange information with similar bodies in other countries as regards money laundering. Money laundering is defined in the legislation to include situations where a person knows or ought to know that property forms part of proceeds of unlawful activity;
88 | The Parliamentarian | 2015: Issue Two
and converts, conceals, disguises or transfers the property or conceals and disguises its origin and in addition, acquires, uses or takes possession of the property. Unlawful activity is defined to include financing of a terrorist act.14 Ghana missed an opportunity to address and operationalize the anti- terrorism legislation in the famous Kennedy Adjepong’s Case.15 The accused who was a Member of Parliament of the leading opposition party in Ghana, was involved in a heated debate on a local radio station with other panel members some of whom belonged to the ruling party. In the heat of the debate passions went high. The accused was alleged to have called on persons from one ethnic group to attack persons from other ethnic groups wherever they meet or find them.
There was a public outcry over the MP’s statement as it had the potential to ignite ethnic violence. He was subsequently arrested by the police and a docket prepared and submitted to the Attorney-General’s office for prosecution. One of the charges preferred in this case was terrorism under Ghana’s Anti-terrorism Act. The charge of terrorism was made within the backdrop that similar statements made on local radio stations in Rwanda and Kenya led to the genocides in both countries and were the subject of prosecution in the International Criminal Court. However, the charge of terrorism was subsequently dropped after a review and the circumstances of that case. Important considerations which led to a review of the charge was that the charge was novel and that it might have wider implications for the elaborate human rights provisions in Ghana’s 1992 Constitution; which included the right to freedom of expression. Our decision was further informed by the seminal
statement made by a former Supreme Court Judge, Justice Hayfron Benjamin in the Edusei Case16
that the framers of
the1992 Constitution intended that Ghanaians should enjoy its human rights provisions bountifully. This consideration was further informed by the fact that the offending statements were made during a political debate where rules of free speech are encouraged.
Parliamentary Oversight in Ghana
Civilian oversight of the police and security forces in the context of counter-terrorism will ensure greater transparency of its policies and enhance public trust. OSCE participating countries have recognized civilian control of the military and police as: […] 25.1 among those elements of justice which are essential to the full expression of the inherent dignity and of equal and inalienable rights of all human beings.
They have agreed that states will: Ensure that their military and paramilitary forces, internal security and intelligence services, and the police are subject to the effective direction and control of the appropriate civil authorities. 25.3 Take appropriate steps to create, wherever they do not exist, and maintain effective
“An important human rights
attribute of Ghana’s legislation is that it does not make a terrorist act a capital offence in which case the death penalty will apply. It provides for a term of imprisonment.”
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