A Comparative Study of s.9 of Criminal and Other Offences (Procedure) Act, 1960 (Act 30); the Security and Intelligence Agencies Act 1996, no.526,); and the true code of practice and the ethics of the Ghana’s Bureau of National Investigation (BNI) in relation to its powers of Arrest and Detention
BRIEFS & MEMOS
The preamble to the 1992 Republican Constitution proclaims: IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessing of liberty, equality of opportunity and prosperity; IN A SPIRIT of friendship and peace with all peoples of the world: AND IN SOLEMN declaration and affirmation of our commitment to; Freedom, Justice, probity and accountability; The principle that all powers of Government spring from the sovereign Will of the people; The Principle of Universal Adult Suffrage; The Rule of Law; The protection and preservation of fundamental Human Rights and Freedoms, Unity and Stability for our Nation DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
COMMENTARY: WHAT ARE THE CODES OF ETHICS & PRACTICE OF THE GHANA’S BNI?
Article 85 of the 1992 Constitution states: ‘No agency, establishment or other organization concerned with national security shall be established except as provided for under this Constitution. It is against this backdrop that the Security and Intelligence Agencies Act 1996; no.526, codified and accordingly, given constitutional authority under which the BNI- an offshoot of the Special Investigations Branch of the (SIB) Police Service, and the [foreign] military intelligence, have to operate? It is submitted that the preamble to the Constitution proclaims the people as the source of authority; and that they derive that authority from God who grant them their natural and alienable rights. It is construed that the people in the exercise of that God-given authority, have given to themselves present Constitution which has among its prime commitments ‘protection and preservation of Fundamental Human Rights and Protections’.
The context is Article 33(5) which states: the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man. [the dignity here includes the woman]. In keeping faith with this commitments and to rebury the omens of the Re Akoto and Others (1961), in relation to its consistency with the interpretation of the Art 13(1) of the 1960 Republican Constitution as against the Preventive Detention Act (PDA) of 1958 (No.17), the 1992 Constitution makes a glaring trenches of laws that guarantee fundamental human rights and freedoms, not forgetting constitutional provisions that are protected and preserved by the courts and a national human rights institution, the Commission on Human Rights and Administration Justice (see Chapter 5, the 1992 Constitution) [see Re: Akoto and The Supreme Court Revisited].
Yet the repeated questions of the ordinary Ghanaian are: what are the standard codes of practice of the BNI personnel in forecasting for example, the outcome of a political party internal presidential or national presidential election contest? Are they to operate in the same way as the police? Or is the Bureau immune to constitutional provisions designed to guarantee civil liberties in relations to its powers of arrest and detention? If not, how are they [supposed] to be regulated?
This brings us to the Security and Intelligence Agencies Act 1996 [which has been in force since 30 December 1996. It makes provisions in respect of National Security Council, and provides for the institution of Regional and District Security Councils; and specifies for example, other State agencies responsible for the implementation of government policies regarding State security.
Part 1 of the Act 526 establishes Regional and District Security Councils operating as committees of the National Security Council. By virtue of the current arrangements, District Security Councils are answerable to the National Security Council. For example, whereas a regional security comprises among others the regional minister and his/her deputy as chairman and deputy chairman of the regional security council respectively, at the district security council, the District Chief Executive serves as a chairman with such security officer as the District Police Commander; the District Crime Officer, not forgetting the representatives of the other traditional security services serving on the council. The 1996 Security Act makes room for the BNI and the research department (the Ministry of Foreign Affairs) as ‘the Internal and External Intelligence Agencies of the State’ (Kumi Ansah-Koi; Kwame Boafo-Arthur(ed), Ghana: One decade of the liberal state (2007). The intelligence agencies have the following functions under the 1996 Act:
(a) Collect, analyze, retain and disseminate as appropriate information and intelligence respecting activities that may constitute threats to the security of the State and the government of Ghana;
(b) Safeguard the economic well-being of the State against threats posed by the acts or omissions of persons or organizations both inside and outside the country;
(c) Protect the State against threats of espionage, sabotage, terrorism, hijacking, piracy, drug trafficking and similar offences;
(d) Protect the State against the activities of persons, both nationals and non-nationals, intended to overthrow the government of Ghana or undermine the constitutional order through illegal political, military, industrial or other means or through any other unconstitutional method; and
(e) Perform such other functions as may be directed by the President or the Council.
By virtue of Section 40 of the Act; we could hear the murmurs that “Subject to the Constitution, a personnel of any of the Internal Intelligence Agencies [which yes, includes the BNI] shall in the performance of his/her duties under this Act have the same rights, powers and protection as are conferred by law on a police officer in the performance of his/her duties.” The Ghana Police Service is established under Article 200 of the 1992 Constitution and is to perform its traditional roles among others, of maintaining law and order. The functions of the Service are set out under Article 203 of the 1992 Constitution. These include among others; control and administration of the Police Service and the delegation to other persons of powers to discipline persons and the conditions subject to which delegation may be made. The s.40 of the Act accordingly, confers on the BNI powers to intrude into matters of national security concerns.
The following questions however, beg for answers: thus, if the police arrest us which process must it follow? And from the cited similar powers shared by both the police and the BNI and of course similar security agencies, what must the Bureau do if for example, it intends to arrest someone from a coffee shop or a radio station, for insulting a high profile authority within the State or in extreme scenario; if the suspect is said to have caused market fires? “Security personnel were not only at the centre of coups d’etat and of ruling juntas established prior to Ghana’s fourth effort at republican rule, they were also heavily involved in extra-judicial executions and punishment, human rights violations, and in the widespread and prolonged infringement of a wide range of basic civil rights.” (Oquaye 1980; Jackson 1999; Westwood n.d.) Thus, legally, when we talk of conflicting roles of the Ghana Police, the BNI and the Power of Arrest, then we are concerned with its constitutional process of arrest and detention.
For most Ghanaians, they find the powers of arrest and detention being often executed by the BNI more conflicting and robotic as compared to that of the police and require some ethical clarification. Ashley Crossman (About.com, Sociology) writes that role conflict occurs when people are confronted with incompatible role expectations in the various social statuses they occupy and role conflict can take several different forms. “When the roles are associated with two different statuses, the result is known as status strain. When the conflicting roles are both associated with the same status, the result is known as role strain. Conflict may also occur when people disagree about what the expectations are for a particular role or when someone simply has difficulty satisfying expectations because their duties are unclear, too difficult, or disagreeable.”
Yes, even an ordinary citizen like ourselves, can “arrest” a suspected criminal if we happen to witness the commission of his/her crime. But traditionally, we are strongly advised not use deadly or excessive force when detaining a criminal because if this arrest is made improperly, the alleged criminal may have a legal right to sue us although we were exercising the power of the citizen arrest. Reading the statute as a whole and in conjunction with related legislations we are tempted to argue that it cannot be the case that the BNI has special arrest and detention powers outside that of what the Constitution confers on the police and other security agencies in withholding its ailing suspects beyond their graves and without recourse to the international human rights standards and ethics. Our laws state that a person arrested without a warrant and taken to custody shall be released on bail within 48 hours or unless the person is earlier brought before a court of competent jurisdiction (See S.15 of Act 30 and Art 14(3) of the Constitution).
In the Kingdom of Great Britain the Police and Criminal Evidence Act 1984 (PACE) was introduced precisely to tackle police abuses; especially the practice of verballing officers saying that the suspect made some kind of admission to him/her when in fact no such conversation took place. For example, [Code] C11.7 (a) provides that an accurate record [of the arresting police officer] must be made of each interview. In practice, it is said to mean that interviews are now tape recorded (see, PACE 1984, UK, particularly- on admissibility of confessions, ss. 76 & 78). Article 12(1) of the Constitution of the Republic of Ghana, 1992 enjoins all the arms of the government and all other governmental agencies to respect the rights of all legal and natural persons in Ghana and shall be enforceable by the courts as provided for in this Constitution.
Justice D. Adjei (Human Rights Application in Criminal Proceeding) writes that the rights which are not provided by the constitution but have been ratified or accented to by the Government of Ghana are also enforceable by the Court. “Such rights include the International Rights of the Refugees, International Rights of the Child and Beijing Rules. Other rights which are enjoyed by people in other parts of the globe but neither mentioned in the 1992 Constitution, nor the other international convention may also be enforced by the Courts.” Section 9 of Act 30, Criminal and other offences (Procedure) Act, 1960 mandates an arresting officer who arrests a person with or without warrant to take the arrested person with reasonable dispatch to police station or other place for the reception of arrested persons and shall inform him in the language he understands of the nature of the charge that initiated the arrest. Art 19(c) of the Constitution states that a person charged shall be presumed innocent until s/he is proved or has pleaded guilty. No arresting officer- the Police or BNI can deny you of this. (See Art 14(2) of the Constitution)
In his article: “Why the BNI is impudent and lawless”; I. K. Gyasi, quoting Lord Acton’s maxim: “Power tends to corrupt, and absolute power corrupts absolutely” (The Chronicle, January 31, 2012), argued that “of all the security establishments of the State, the most impudent, lawless, and the one proving to be the most dreaded, is the Bureau of National Investigations (BNI)”. Worried not only about the mysterious nature of the Bureau’s code of practice and ethics, Gyasi expressed his dismay about the unprovoked and totally needless assault of the BNI personnel on Miss Gifty Lawson- a photo-journalist of the DAILY GUIDE. Another disturbing fact is the political-divide nature of how the State Agency appears to be showcasing its bidding.
“Back in 1999, Nana Addo Dankwa Akufo Addo, then a Member of Parliament, was arrested by the Police, NOT by the BNI. When Nana Akufo Addo wondered whether a sitting Member of Parliament could be arrested, the then Majority NDC saw nothing wrong with the arrest. The then Minister for the Interior, Nii Okaija Adamafio, “accused Nana Akufo Addo of trying to hide behind the Republican Constitution again.” (See PALAVER, Friday, November 8, 1999).The PALAVER‘s own deduction from Nii Adamafio’s reference to Article 117 of the 1992 Constitution was as follows, “From the above, therefore, if an MP is picked up for questioning on Wednesday or Monday, days that Parliament does not sit, the issue of immunity does not arise.” When the NPP was in power, honourable E.T Mensah was arrested by the BNI over the Ohene Gyan Sports Stadium tragedy, in which over one hundred persons lost their lives.” The luxury here is that the BNI can get away with murder, illegality or excesses because they can always enjoy sympathy from those of the political divide, mainly the NPP and the NDC.
As had been in the past, in this Constitutional era, too, the BNI is still being accused of murderous forms of interrogation, torture and brutalities and unwarranted arrest and harassment against citizens. The arrest and detention of Hon Asamoah-Boateng over complicity over a contract amounting to GH¢86,000 for renovation works at the Ministry of Information and the death of one Maikankan- a 34-year-old NPP activist from Kotobabi at the BNI offices amid police deployed teargas fire; not forgetting the death of a ‘5-months pregnant’ woman- a 29-year-old Celestina Tsekuma- the wife of one Godson Atitsogbui of Maamobi, over purported debts she owed which many say was purely police matter, as well as countless unreported episodes, as well as that of Hon Kennedy Agyapong and FONKAR Owusu-Bempa, the question being asked is: how long must the BNI continue to impose itself on us with their code of ethics shrouded in secrecy? The answer probably lies with Kumi Ansah-Koi:
“Act 526, discussed above, states at Article 17(1) that ‘the President shall assign ministerial responsibility for the Intelligence Agencies to such Minister as the President shall deem fit’. At 17(ii), ‘the Minister assigned responsibility under subsection (i) of the section shall in respect of each year, submit a report to Parliament on the Intelligence Agencies’. None of that has been done, so far, and the government has offered no explanation; one is hard put to fathom the reasons or justification for such a failure.” The MI5- the UK’s Intelligence Oganization- responsible for protecting the UK, its citizens and interests, at home and overseas, against threats to national security writes at its website (FAQs): “In a democratic society, it is vital that a security intelligence agency should be well regulated by law and subjected to rigorous oversight. There should be as much transparency as is possible to achieve without compromising our operations.” JusticeGhana advocates that such openness is long overdue in Ghana.