Denial of A Citizen’s Right of Entry: When and How Can It Be Done?

If you closely follow activities on twitter, then you might have seen the recent plea by the BET award-winning rapper, Sarkodie, directed at the twitter handle of the president, pleading among other things, the need for the ban on travel to be lifted, so that he can return to Ghana. This raised a constitutional debate on twitter concerning whether a citizen of Ghana can be denied entry into Ghana and if yes, on what special grounds. There are 3 schools of thought to this debate. Part I of this essay shall state and assess the position of the first school of thought. Part II and Part III shall do same with the second and third Schools of thought respectively.

Part I: Omnibus Derogation Under Article 12(2) 

Persons belonging to this School of thought share the view that, Article 12(2) of the 1992 Constitution subjects the enjoyment of all rights under the constitution to Public interest and the enjoyment of rights of others and that, in every regard, all Rights under the constitution can be derogated from if either of these grounds is satisfied. For purposes of clarity, I shall restate Article 12(2) of the 1992 Constitution. 

It reads: 

Every person in Ghana, whatever his race, place of origin, political opinion, color, religion, creed or gender shall be entitled to the fundamental human’ rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.

A Rejection of the above position 

It is argued herein that, the omnibus grounds stated under Article 12(2) of the 1992 Constitution is only a general presumption showing that the enjoyment of rights are not absolute. But those omnibus grounds alone do not suffice as a ground to derogate from any fundamental Human Rights under the constitution. Where derogation is to be made, the general presumption under Article 12(2) of the 1992 Constitution must be conjoined with a specific form of exclusion of that right made under the constitution.  Illustratively, under Article 13 of the 1992 Constitution, the right to life is guaranteed. But under same Article 13, the exceptions to violating the right to life are provided. Aside these stated exceptions, a person’s life cannot be taken merely because one alleges public interest under Article 12(2) of the 1992 Constitution. 

Article 13 reads:

(1) No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the Laws of Ghana of which he has been convicted.

(2)  A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances,

(a)  for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purposes of suppressing a riot, insurrection or mutiny; or

(d) in order to prevent the commission of a crime by that person.

It is argued here that, where a person contracts a contagious disease where it is in the state interest that the person be killed otherwise such a person may pose uncontrollable threat to the life and safety of Ghanaians, the person’s life cannot be taken only because it is in public interest to do so.

Thus, Article 12(2) of the Constitution cannot be a ground to kill a COVID-19 patient basically because it is in public interest and safety. This is so because the omnibus ground of Article 12(2) of the 1992 Constitution does not apply in isolation. It can only apply if read conjunctively with another provision that expressly derogates from that right. For example, in making the Right to Information Act 2019, the Public interest omnibus ground was applied together with Article 21(1)(f) of the 1992 Constitution.

Article 21(1)(f) reads: 

All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.

 In the Right to Information Act 2019, section 7,8 & 9 of the Act provided that where information is necessary for law enforcement or is part of information meant for the president or contains information that is prejudicial to state defence, that information can be denied the citizen. This is justifiable because the enjoyment of the right to information is subjected to a specific exclusion; qualifications and laws necessary in a democratic society under Article 21(1)(f). Since state defense is a vital object in a democratic society, that can be a basis for the exclusion of the right to information.

Same analogy can be extended to Article 15 of the 1992 Constitution on the prohibition of Torture. Under Article 15, no person shall suffer torture on any ground. This employs the letter and object of the Convention Against Torture^[1]. It cannot be pleaded by a state official nor can a law be made by parliament conferring power on any person to torture on the basis that per Article 12(2) of the 1992 Constitution, all rights and freedoms are subjected to public interest, thus, persons can be tortured when it is in public interest. 

By way of illustration, where a person is deemed to have information that can combat terrorism yet unwilling to say so upon request,  yet it appears to be in the interest of the public and state security for the person to be tortured and that information obtained, merely being in the interest of the public or state security cannot be a basis for derogating from Article 15(2) of the 1992 Constitution since no derogation of any kind is allowed from the enjoyment of the right of not being tortured.

It is on these grounds that it is argued that Article 12(2) of the 1992 Constitution standing alone is not sufficient for a derogation to be made from a Human Rights provision under Chapter 5. 

Part 2: Claw back Clauses Under Article 21(4)

Pursuant to Article 21(4), Parliament of Ghana passed the Imposition of Restriction Act 2020^[2]. The Long title of the Act reads: An Act to provide for the imposition of restrictions in accordance with paragraphs (c), (d) and (e) of clause (4) of article 21 of the Constitution, and for related matters.

From this title, we can legitimately infer that, the power to confer the powers conferred on the president under Act 1012 was done pursuant to the Article 21(4)(a)(b)(c) & (d). The relevant question here is what is the extent and applicability of Article 21(4) of the 1992 Constitution.

 Article 21(4) reads: 

Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision for…

The operative phrase of significance here is ‘to be held…. inconsistent… of this article’. It means that, Article 21(4) of the 1992 constitution was made specially to limit freedoms created under Article 21. 

But one interesting thing which the framers of the constitution did was to not leave Article 21(4) of the 1992 Constitution as a general clawback clause. They stated special limitations which are applicable to the Freedoms created by Article 21 of the 1992 Constitution. 

The exception which is relevant for our discussion is paragraph (c) and paragraph (d) of clause 4 of Article 21. 

It reads:

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons; or

(d)  for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, of a person who is not a citizen of Ghana;

Per this school of thought, they argue that, Article 21(4)(c) provides power for government as granted under the Imposition of Restrictions Act, 2020 to prevent a citizen from entering Ghana.

A rejection of the above position 

It is argued here that, if paragraphs (c) and (d) of clause 4 of Article 21 are read conjunctively, it appears that whereas paragraph (c) deals strictly with freedom of movement and residence within Ghana, paragraph (d) deals with freedom of entry into Ghana. It is a trite position in our law as held in Edusei v. Attorney General[3] that the freedom of movement under Article 21(1)(g) of the 1992 Constitution includes two forms of movement. It entails the freedom to move within Ghana and the freedom to leave and return to Ghana.

Article 21(1)(g) reads: (g) All persons shall have the right to freedom of movement which means the right to move freely in Ghana, the right to leave, and to enter Ghana and immunity from expulsion from Ghana. 

From the above provision, a limitation on the freedom of movement can either be on the freedom of movement of persons within Ghana or the freedom of persons to leave Ghana or enter Ghana or both. It is contended here that, paragraph (c) of clause 4 of Article 21, applies only to freedom of movement within Ghana whereas paragraph (d) of the same provision applies to freedom to enter Ghana.

What this means is that paragraph (c) of clause 4 of Article 21 cannot be used as the basis of preventing a person from entering Ghana. If this meaning is placed on paragraph (c) then paragraph (c) would be so broad enough that there would not have been the need for paragraph (d) to specifically deal with freedom of entry. 

And per the letter of paragraph (c), the usage of the phrase ‘movement or residence within Ghana’ means that the limitation applies only to freedom of movement or freedom to move from place A in Ghana and reside at place B within the territory of Ghana. Such that per paragraph (c)(supra), a person can be prevented from moving from Accra to Kumasi or a person can be prevented from being a resident in Kumasi. Considering the COVID-19 situation in which we are, under Article 21(4)(c) of the 1992 Constitution, there is the power to convey all COVID-19 persons from one region to another against their will regardless of their freedom to reside in any one part of the Country. Also, there is the power to restrict the movement of persons from one place to the other within the territory of Ghana.  But this does not apply to limiting persons from entering Ghana. The only provision under paragraph 4 that deals with the right of entry is paragraph (d) of clause (4) of Article 21. And under paragraph (d), the freedom of entry can only be limited with respect to Non-citizens. Such that, a foreigner who is not a citizen of Ghana, can be prevented under clause d of paragraph 4 of Article 21 from entering Ghana. But this does not apply to Non-Citizens. So, it was intended by the framers that the freedom to enter Ghana by citizens cannot be limited under Article 21(4) of the 1992 Constitution.

The basis for the differential treatment between citizens and non-citizens is due to the doctrine of territorial ownership. Under international law^[4] a territory belongs to a people. And it is for those people to decide the fate of that territory. And the people who own the territory of a nation are its citizens. Thus, they owe it as an absolute right to be on their territory. Since every territory can deny a right of entry to its non-citizens, the absolute enjoyment of the right of entry on the part of nationals of a state is made purposely to prevent a situation where citizens are not left stranded without a nation to return to. Illustratively, imagine that the USA decides today to sack all Ghanaians from America, and no other country is willing to accommodate them, the only place they cannot be denied entry is their country of nationality, which is Ghana. So, had the right of return not being absolute where Ghana can easily prevent such persons from entering Ghana, where would those Ghanaians have lived? On the seas which is a common heritage of mankind? This is the reason behind the existence of the absolutist right of entry concept under Legal theory^[5]

Part III – Emergency Powers and The Denial of Freedom of Entry

Ordinarily, Rights, and Freedoms are enjoyable under civil society. John Locke stated in the two treatises on government[6] that one can only make a claim of right in a civil society as distinct from the state of nature. Nozick^[7]and John Hospers^[8] stated that a state of war is like a state of nature. No one reasonably can make claims to rights during a time of war. Because a war by itself threatens the existence of a civil society. It makes sense from this angle that the framers in making the 1992 constitution, allowed that in times of emergency, the president can through its emergency powers make orders and decisions that violate human rights under the 1992 Constitution and such violations cannot be held as wrongful pursuant to Article 31(10) of the 1992 Constitution. 

I must say here that even with Article 31(10), it is not an absolute clawback clause which can be used to justify just any form of violation of Human Rights under the1992 constitution. 

Article 31(10) reads: 

(10)  Nothing in, or done under the authority of an Act of Parliament shall be held to be inconsistent with, or in contravention of articles 12 to 30 of this Constitution to the extent that the Act in question authorizes the taking, during any period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that exists during that period.

What this means is that, even where Human Rights violations are made during a state of emergency, it must be reasonably justified depending on the state of emergency in force. 

Though I agree, that the freedom of entry can be denied under a state of emergency, I do argue further, that it is in the interest of the public that such denial is made with caution. Due to its absolutist character when it comes to citizens, it should only be denied on very rare grounds.

A Statement of Opinion on the Sarkodie Situation 

Conscience and Justice demand that governmental authority is exercised for the welfare of citizens and state interests. The ban on international travel into Ghana has displaced and left so many Ghanaians offshore at places where they lack the adequate and needed revenue to continue to sustain themselves. Some actually went on holiday and were caught in the ban. By way of policy, the Government should allow citizens who want to return to return but subject to mandatory quarantine and care whose cost they shall personally bear. A ban on international travel which is a means of accessing the right of entry by citizens of Ghana, to an extent is a limitation on the right of entry. Though I do not intend to pursue the debate on denial of the mode of accessing a right as a denial of that right under this paper, this direction should be seen solely as one of opinion.

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^[1] 1987

^[2] Act 1012

^[3] (1997- 1998) 2 GLR 1

^[4] Advisory Opinion of the International court of Justice 1975 on the status of Western Sahara

^[5] Michael Blake ‘Positive and Negative Rights of Migration: A reply to my Critics’. Read also, Gillian Brock ‘Debating Brain Drain’

^[6] John Locke ‘Two treatise of Government’, Cambridge Collection on History, Cambridge University Press, 1960

^[7] Robert Norzick ‘The entitlement of the theory of Justice’

^[8] John Hospers: Introduction to Political Philosophy, Oxford University press, Chapter 6: Rule utilitarianism