Fixing the Culture of Unlawful Arrest and Detentions: A Look at the Rules of Engagement of the National Security Apparatus
1.Introduction
These days, the mention of National Security evokes fear and intimidation, to say the least. Media reports abound as to alleged unlawful arrests and detentions of persons and their alleged ordeals in the hands of persons claiming to be National Security Operatives.
After the security failure fiasco at Ayawaso West Wagoun Bye-Election, the President of Ghana set up the Emile Short Commission to investigate happenings of the day and make recommendations accordingly. The Report published by the Commission, amongst others, recommended the restructuring of the National Security Apparatus.
It is believed that the Securities and Intelligence Agencies Act, 2020, Act 1030 assented to by the President of Ghana in October 2020, was a direct result of the work of the Commission. In this article, the author seeks to throw light on the powers of arrest of the National Security as an entity and roles and functions ascribed to it under its enabling Act.
2.What Is the National Security?
The 1992 Constitution does not use the term National Security. The Constitution uses the term National Security Council but which term is not defined, save how it is constituted.
Article 83 (1) provides as follows:
There shall be a National Security Council which shall consist of-
(a) the President;
(b) the Vice-President;
(c) the Ministers for the time being holding the portfolios of foreign affairs, defence, interior, and finance and such other Ministers as the President may determine;
(d) the Chief of Defence Staff and two other members of the Armed Forces;
(e) the Inspector-General of Police and two other members of the Police Service, one of whom shall be the Commissioner of Police responsible for Criminal Investigations Department;
(f) the Director-General of the Prisons Service;
(g) the Director of External Intelligence;
(h) the Director of Internal Intelligence;
(i) the Director of Military Intelligence;
(j) the Commissioner of Customs, Excise and Preventive Service; and
(k) three persons appointed by the President.
Article 85 of the 1992 Constitution further provides that “No agency, establishment or other organization concerned with national security shall be established except as provided for under this Constitution.”
This provision is very clear. Except as provided in the Constitution and not any other statute, no other organization shall be established which shall be concerned with national security.
The organizations which are traditionally charged with the security of our country have been provided for in the 1992 Constitution. Articles 15, 16 and 17 mentions the Police Service, Prison Service and the Armed Forces of Ghana.
3.Mandate Of The National Security Council (NSC)
Act 1030, provides details on the scope of authority of the National Security Council. The long title of Act 1030 reads:
“An Act relating to the National Security Council, to provide for the establishment of regional and district security councils, to specify and coordinate the activities of the agencies responsible for the security of the State and to protect and preserve the unity and stability of the State and to provide for related matters.”
The functions of the National Security Council as provided for in Article 84 of the 1992 Constitution are as follows:
(a) considering and taking appropriate measures to safeguard the internal and external security of Ghana;
(b) ensuring the collection of information relating to the security of Ghana and the integration of the domestic, foreign and security policies relating to it so as to enable the security services and other departments and agencies of the Government to co-operate more effectively in matters relating to national security;
(c) assessing and appraising the objectives, commitments and risks of Ghana in relation to the actual and potential military power in the interest of national security; and
(d) taking appropriate measures regarding the consideration of policies on matters of common interest to the departments and agencies of the Government concerned with national security.
Section 4 of Act 1030 also affirms the functions of the NSC as set out in the Constitution as follows:
- considering and taking appropriate measures to safeguard the internal and external security of Ghana;
- ensuring the collection of information relating to the security of Ghana and the integration of the domestic and foreign policies relating to the security of Ghana so as to enable the security services and any other departments and agencies of the Government to co-operate more effectively in matters relating to national security;
- assessing and appraising the objectives, commitments and risks of Ghana in relation to the actual and potential military power in the interest of national security; and
- taking appropriate measures regarding the consideration of policies on matters of common interest to the departments and agencies of the Government concerned with national security.
The NSC has a Co-ordinator who is appointed by the President under section 20 of Act 1030. The functions of the Co-ordinator are basically to oversee the administrative workings of the NSC particularly in relation to the organs established under the Act and other stakeholders in the security sector.
Fellow Ghanaians, the sections reproduced above, grant the NSC the power to collect information and provide them to relevant security agencies for action. However, such information must relate to the security of Ghana and the integration of domestic and foreign policies relating to the security of Ghana. The NSC cannot be involved in actual grounds operations such as arrest, detention or search.
4.The Various Organs Established Under Act 1030
Article 85 of the 1992 Constitution further provides that “No agency, establishment or other organization concerned with national security shall be established except as provided for under this Constitution.”
This provision is very clear. Except as provided in the Constitution, no other organization shall be established which shall be concerned with national security.
The organizations which are traditionally charged with the security of our country have been provided for in the 1992 Constitution. Chapters 15, 16 and 17 mentions the Police Service, Prison Service and the Armed Forces of Ghana
What agencies have been established by Act 1030?
Act 1030 establishes the National Intelligence Bureau as an Internal Intelligence Agency and the Research Department as the External Intelligence Agency.
Section 12 of Act 1030 provides that “The Departments existing immediately before the coming into force of this Act and known as the Bureau of National Investigation now referred to as the National Intelligence Bureau and the Research Department respectively are continued in existence under this Act as the Internal and External Intelligence Agencies of the State.”
The Act proceeds to outline the functions of each agency established thereunder.
Section 14 (1) of Act 1030 provides for the functions of the Internal Intelligence Agency. Its functions are outlined as follows:
(a) brief the President, the National Security Council and any other relevant stakeholder on intelligence gathered internally, relevant to the national security interests of the country;
(b) monitor, collect, analyse, evaluate, retain and disseminate in an appropriate manner information and intelligence gathered internally and perform intelligence operations;
(c) be responsible for
(i) counter intelligence, and activities for the internal security and stability of the country; and
(ii) intelligence gathered internally in order to prevent and counter violent extremism, including terrorism in the country;
(d) provide intelligence to aid the formulation of Government policy and programmes;
(e) provide Government with feedback from the populace;
(f) gather intelligence to counter threats from organised crime and any other form of criminal activity;
(g) conduct investigations in collaboration with the relevant security agencies into serious offences and matters of national importance;
(h) support the provision of security protection for
(i) the Presidency;
(ii) visiting diplomats and other persons with diplomatic
immunity; and
(iii) designated public officials; and
perform any other function for intelligence purposes as directed by the Council or the Minister.
Section 14 (2) provides for the function of the the External Intelligence Agency as follows:
(a) brief the President, the National Security Council and any other relevant stakeholder on intelligence gathered externally relevant to the national security interests of the country;
(b) monitor, collect, analyse, evaluate, retain and disseminate in an appropriate manner information and intelligence gathered externally and perform intelligence operations;
(c) collect intelligence on economic issues and any other issue of strategic relevance to national development;
(d) provide intelligence from external sources in order to prevent and counter violent extremism, including terrorism in the country;
(e) engage in counter intelligence and activities to advance the national interest at the international level;
(f) conduct due diligence on foreign entities and high profile personalities including Ambassadors designate or High Commissioners designate and profile persons of interest;
(g) liaise with foreign intelligence services for the purpose of intelligence sharing and the provision of opportunities for technical assistance and training;
(h) provide external intelligence insights to aid in the formulation of foreign policy and assist the decision-making process of Government on foreign engagements;
(i) provide intelligence to aid in combatting all forms of criminal activity; and
(j) perform any other function for intelligence purposes as directed by the Council or the Minister.
From a reading of the functions of the two (2) agencies established under Act 1030, it is incontrovertible that the functions and powers of these agencies are quite peculiar and do not border on the day to day security matters of the state which will be reserved for either the Police Service or any other Agency established under the constitution.
5.Relationship Between the Organs and The NSC
Be that as it may, the National Security Council has the duty to supervise and coordinate the activities of these two agencies. Section 13 of the Act provides that “The supervising body of the intelligence agencies is the National Security Council.”
As a supervising body, the National Security Council can only direct these agencies as to how to carry out their respective functions but cannot proceed to carry out these functions as if it is for the National Security to undertake same.
6.Relationship Between the Organs and the Other Security Agencies
Fellow Ghanaians, the Internal Intelligence Agency is empowered to collaborate with other “relevant security agencies” to conduct investigation into serious offences. Section 14 (1) (g) of Act 1030 provides thus:
The Internal Intelligence Agencies shall
- g) conduct investigations in collaboration with the relevant security agencies into serious offences and matters of national importance.
Serious offences are defined in section 49 of Act 1030 to include:
- Participation in an organised criminal group, terrorism and terrorist financing, money laundering, human trafficking, people smuggling, sexual exploitation, illicit trafficking in narcotic drugs, illicit arms trafficking, trafficking in stolen and other goods, corruption and bribery, serious fraud, counterfeiting and piracy of products, smuggling, extortion, forgery, insider trading and market manipulation
- Murder, grievous bodily harm, robbery or stealing where these are predicate offences for a serious offence, and
- Any other similar offence or related prohibited activity punishable with imprisonment for a period of not less than five years and not more than twenty-five years.
From the wording of the above section, if the offence is not defined to be a serious offence under the Act 1030, the Internal Intelligence Agency cannot get involved with the investigations. The investigations into alleged “non-serious offence” such as taking pictures of security installations, can only be done by the other relevant Security Agency without the involvement of any of the organs of the National Security Council.
7.The Exercise of Powers of the Police by the National Security Council
We have read in the media, news of persons claiming to be working with the National Security Council arresting, detaining and seizing gadgets belonging to individuals. Their actions are justified on the basis that the National Security has all the powers of the Ghana Police Service. Section 47 of Act 1030 is often quoted in support of this.
Section 47 provides that “An employee of an external intelligence agency or an internal intelligence agency has, in the performance of functions under this Act, the same rights and powers conferred by law on a police officer in the performance of functions and has the same protections.”
The provision of this section is clear. The exercise of the powers of the police is conferred on employees of either the Internal Intelligence Agency or the External Intelligence Agency. That power is not conferred on the National Security Council or persons claiming to be operatives of the National Security Council. Hence, if any person, claiming to be a National Security Operative, attempts to arrest an individual, that individual has the right to challenge that arrest unless the operative provides evidence of being an employee of either the Internal Intelligence Agency or the External Intelligence Agency. In other words, an operative of the National Security Council cannot effect an arrest! The power to arrest is vested in employees of any of the organs that the NSC is empowered to supervise activities of.
8. The Power to Request for Documents
Fellow Ghanaians, the National Security Coordinator or the National Security Council, lacks the mandate to request for documents from individuals in the name of conducting investigations into an alleged offence.
Under Act 1030, it is only the Director-General for either the Internal Intelligence Bureau or the External Intelligence Bureau, who may request for such document. Even so, a warrant is required. Sections 34 and 35 of Act 1030 provides thus:
Application for warrant
- (1) Where a Director-General of an intelligence agency or an employee designated by the Director-General has reasonable grounds to believe that a warrant is required to enable the agency to perform a function under this Act, the Director-General or the designated employee may apply for the issue of a warrant.
(2) The application for the warrant shall be made in writing to a Justice, the chairperson of a tribunal or a senior police officer not below the rank of a superintendent or above.
Matters to be specified in an application for a warrant
- (1) An application for a warrant shall specify
(a) the facts relied on to justify the belief, or reasonable grounds, that a warrant is required to enable the intelligence agency to investigate a threat to security or to perform functions under this Act;
(b) that the urgency of the matter is of a nature that it would be impracticable to carry out the investigation using other investigative procedures or that without a warrant under this section, it is likely that information of importance relating to a threat to security or the performance of the functions under this Act would not be obtained.
From the sections above, what the NSC can do if it gathers information that a citizen is about to engage in an activity that is inimical to the interest of the State, is to inform the relevant organ established under the Act for that organ to take the next steps.
9.Conclusion
This article is not aimed at causing disaffection towards the work of the NSC. The work of the NSC and its organs are vital to our existence as a nation. However, the possibility of abuse of its powers to the detriment of the ordinary Ghanaian is something which should not be countenance. The NSC is not above the law. Its officers must operate within the ambit of its enabling Act. If private persons are educated on what the NSC can do and what it cannot do, we will be empowered to stand up against excesses, such as those that are frequently reported in the media. After all, we have been admonished to be citizens, not spectators.
The Writer is the Lead Consultant with Robert Smith Law Group, a boutique law firm based in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra. He is also Fellow of the Chartered Institute of Arbitrators.
Great information and education. Kudos Snr Bobby