The Re: Akoto and The Supreme Court Revisited - The Ruling

Details

Category: Law Commentaries

Published Date

Hits: 13386

The Ruling

1. The affidavits disclosed all the facts relevant for determining whether the writ should issue or not. Rule 14 of Order 59 does not oblige a judge to make a formal return in every case. He is entitled to dispose of the case on the affidavits. Dicta of Goddard, LJ. in R v. Home Secretary, ex parte Greene [1941] 3 All E.R. 104 at p. 123 applied;

2. Although the Habeas Corpus Act, 1816, is a statute of general application, it does not apply in this case because the Act under which the appellants were detained vests plenary discretion in the Governor-General (now the President) if satisfied that such an order is necessary. Upon production of the order the only question which has to be considered is its legality. If the order is lawful the detention is lawful: Liversidge v. Anderson [1942] A.C. 206, H.L. followed;

3. The court can only look into allegation of bad faith by high officers of the state if there is positive evidence, which is singularly absent in this case: Nakkuda Ali v. M.E. De S. Jayarakne [1951] A.C. 66 at p.77, P.C. cited;

4. The term “security of the state” is not limited to the defence of Ghana against a foreign power, and the powers of the Preventive Detention Act may be invoked where the basis of aw is sought to be undermined and attempts are being made to cause disruption in the normal functioning of government;

5. The Preventive Detention Act is to be distinguished from the Criminal Code, (Act 29), in that the code concerns itself with acts already committed whereas the Act is aimed at preventing the future commission of acts prejudicial to the safety of the state;

6. Article 13(1) of the Constitution imposes only a moral obligation upon the President of Ghana. Throughout the declaration, which is similar to the Coronation Oath of the Queen of England, the word “should” used is and not “shall”. The declaration does not constitute a bill of rights and does not create legal obligations enforceable in a court of law;

7. The effect of the Article 20 of the Constitution is that Parliament is sovereign and the legislative powers are qualified only with respect to the entrenched Articles therefore;

8. The Preventive Detention Act, 1958, is therefore, not contrary to the Constitution and Parliament is competent to pass such an act even in peace time.