SC to determine fate of "unexecuted" but "ratified" US-Ghana agreement

Barely three days after its ratification under controversial circumstances, the Defense Cooperation agreement between the Governments of the United States and Ghana is facing its first constitutional test.

The agreement is the subject is a suit filed by Ashanti Regional Youth organizer of the National Democratic Congress Yaw Brogya Gyamfi.

The government led by the Minister of Defence Dominic Nittiwul successfully pushed the agreement through parliament with the overwhelming support of all New patriotic Party MPs despite concerns over its constitutionality.

The Minority led by its leader Haruna Iddrisu had questioned the suitability of the agreement for a parliamentary approval because it has not been duly signed and therefore does not meet the constitutional requirement of execution in order for it to be ratified.

Article 75(2) which gives Parliament the authority to ratify agreements entered into by the executive 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 on-half of all the members of Parliament.  

The Minority was of the opinion that the agreement was not signed and therefore should not have been brought to Parliament in the first place but the Defence minister was convinced he was doing the right thing.

The decision by Parliament to ratify the agreement is the subject of the suit filed by Yaw Brogya Gyamfi.

In suit filed on his behalf by lawyer Elikplim Agbemava of Fidelity Law Group, Yaw Brogya Gyamfi argues that the ratification of the agreement is null and void.

The second relief the suit is seeking reads

"A declaration that the Minister of Defence acted in contravention of Articles 58(1), 75 and 93(2) of the 1992 Constitution when he laid or caused to be laid before Parliament an unexecuted draft of the supposed Defence Co-operation Agreement for ratification under Article 75 of the 1992 Constitution."

Lawyers for the plaintiff are arguing that the second defendant should have first executed the agreement before taking it into Parliament and that the house had no power to rectify such an agreement as sought by the Defence minister through the memo submitted to the house.

Yaw Brogya Gyamfi also has issues with the portion of the agreement which according to him ousts the jurisdiction of Ghana's courts.

Under the agreement, any loss or misunderstanding occasioned either of the parties or an ordinary Ghanaian as a result cannot be taken to a Ghanaian court.

Lawyer for Brogya Gyamfi, Elikplim Agbemava however argues that the said provision contravenes Articles 2, 58(1), 33, 93(2), 125, 130(1)(b), 135 and 140 of the 1992 Constitution.

"A declaration that neither the executive nor legislative branch of government has the power to enter into or ratify a treaty that ousts the jurisdiction of the superior courts of Ghana in matters concerning the interpretation, application or enforcement of any international agreement and further provide that such international agreement cannot be subject to any other court in the world," the suit stated.

Beyond that Yaw Brogya Gyamfi also claims that the agreement is not in the national interest and should be declared as such because it is inconsistent with Articles 2, 1(2), 33, 125, 130,135, 140, and 73 of the 1992 constitution.

"...... on the grounds that it (i) excludes the jurisdiction of Ghanaian Courts over its terms and conditions (ii) waives or precludes the right to the enforcement of judicial rights of Ghanaian individuals who may be adversely affected by the operation or implementation of the said Agreement; and (iii) grants unfettered entry, rights and access to the United States of America over our custom borders and Ghana's telecommunications infrastructure," the suit clarified.

Yaw Brogya Gyamfi is therefore asking the Supreme Court to set aside the agreement which has attracted massive public furore.

The suit filed by the plaintiff would be the first time the interpretation of portions of Article 75 would be going to court with the matter against the GITMO agreement focusing on the same provision in the 1992 constitution.