On Wednesday, March 11, 2020, the Director-General of the World Health Organisation declared the Coronavirus disease (COVID-19) a pandemic. The Minister responsible for Health pursuant to Section 169 of the Public Health Act, 2012 declared COVID-19 a public health emergency in Ghana. On Friday, March 13, 2020, the first two cases of COVID-19 were reported and confirmed in Ghana.
In containing the novel ravaging virus various measures had been taken by the Government including the enactment of the Imposition of Restrictions Act, 2020 (Act 1012) which came into full force on March 21, 2020. The objective of Act 1012 is to provide for powers to impose restrictions on persons to give effect to paragraph (c), (d) and (e) of clause 4 of Article 21 of the Constitution, 1992.
Section 2(1) of Act 1012 empowers the President of the Republic acting in accordance with the advice of the relevant person or body by Executive Instrument, imposing restrictions specified in paragraph (c), (d) and (e) of clause (4) of Article 21 of the Constitution, 1992. The instrument made shall include provisions in respect of:
a. The specific restriction to be imposed
b. The declaration of the restriction
c. The person to whom the restriction applies
d. The geographic area to which the restriction applies
e. The facts and circumstances for the provision in paragraph (a) to (d) and
f. Any other matter incidental to the attainment of the object of the Act.
Section 6 of Act 1012 makes it an offence for non-compliance with restrictions imposed under the Executive Instrument issued. The said section provides that:
“a person who fails to comply with a restriction imposed under the Executive Instrument issued under the Executive Instrument issued under subsection (1) of section 2 commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than five thousand penalty units or to a term of imprisonment of not less than four years and not more than ten years or to both”.
Pursuant to Act 1012 Executive Instrument (E.I. 164) (No.10) provides for the wearing of face mask, face shield or any other face covering that covers a person’s nose and mouth completely, when that person is in a public place; or leaving or returning to his or her place of abode. A person who fails to comply with the wearing of the face covering commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than five thousand penalty units or to a term of imprisonment of not less than four years and not more than ten years or to both. The E.I.164 came into force on 14th June, 2020 for a period of not more than three months.
In this article, the writer seeks to explore whether or not an Executive Instrument can impose a criminal offence under our present constitutional dispensation.
The organs of Government, the Executive, the Legislative and the Judiciary functions on the basis of separation of powers. The separation is maintained through a constitutionally delineated system of checks and balances exercised by each of the three organs in relations. The executive authority of Ghana is vested in the President. Article 58(1) & (2) of the Constitution, 1992 provides that:
“the executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution. The executive authority of Ghana shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by this Constitution”(Emphasis is mine).
However, the legislative power of Ghana is vested in Parliament subject to the provisions of the Constitution and is to be exercised in accordance with the Constitution. While the judicial power is only vested in the Judiciary.
For the purpose of the fair trial provision of the Constitution, 1992, criminal offence means a criminal offence under the laws of Ghana. The laws of Ghana as stipulated under Article 11 of the Constitution, 1992 are; the Constitution, enactments made by or under the authority of the Parliament, any Orders, Rules, and Regulations made by any person or authority under a power conferred by the Constitution; the existing law and the common law.
The principle of legality states that no person should be punished for an act which at the time he/she was engaging in was not prescribed as a crime with a spelt-out punishment. Thus, the criminal law should be written to afford the citizen adequate notice of what is expected of him/her so as to conform to them.
Whereas, Article 19(5) of the Constitution, 1992 provides that a person shall not be charged with or held to be guilty of a criminal offence, which is founded on an act or omission that did not at the time it took place constitute an offence.
Article 19(11) of the Constitution, 1992 provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.
The combined effect of Article 19(5) and 19(11) is that a person shall not be charged with or held to be guilty of a criminal offence unless
a. The act or omission is a criminal offence.
b. The offence is defined in a written law and
c. penalty for the criminal offence is prescribed in a written law.
The Interpretation Act, 2009(Act 792), in Section 1, defines an executive instrument as:
a) “an instrument specified by an Act of Parliament as an executive instrument; or
b) a statutory instrument which is of an administrative character or of an executive character and is not an instrument
i. of a judicial character, or
ii. of a legislative character;”
The Supreme Court in Osei-Akoto v The Attorney General held that executive instruments are not of a legislative character. The Supreme Court reasoned that a statutory instrument is defined in Section 1 of the Interpretation Act, 2009 as an instrument made, whether directly or indirectly under a power conferred by an Act of Parliament. The Court reasoned further that although a statutory instrument, an executive instrument is neither legislative nor an instrument of a judicial nature. Section 5 of the Statutory Instruments Act, 1959 (No 52 of 1959) defines executive instruments as “Statutory Instruments other than legislative instruments or instruments of a judicial character.” Again, the Supreme Court held that executive instruments are the means of implementing executive authority and there is no justification for requiring such instruments to be laid before Parliament as they do not have a legislative character.
The distinguished author His Lordship Professor Sir Dennis Dominic Adjei in his book at page 444; Modern Approach to The Law of Interpretation in Ghana is of the view that Executive Instrument could be struck out if they are made in excess of the powers conferred on the executive even though they are not legislative in nature. The Supreme Court in Mensima and Others v Attorney-General and Others struct out Regulation 3(1) of the Manufacture and Sale of Spirits Regulation, 1962(L.I.239) made under the parent Act, the Liquor Licensing Act, 1970(Act 331) as unconstitutional on the grounds that the regulation sought to make it mandatory for a person to obtain a licence to distill akpeteshie, a local liquor, to first become a member of a co-operative society, Acquah JSC expressed himself in the following words:
“In my view therefore, article 1 (2) of the Constitution, 1992 is the bulwark which not only fortifies the supremacy of the Constitution, but also makes it impossible for any law or provision inconsistent with the Constitution, 1992 to be given effect to. And once the Constitution, 1992 does not contain a schedule of laws repealed by virtue of article 1 (2), whenever the constitutionality of any law vis-a-vis a provision of the Constitution, 1992 is challenged, the duty of this court is to examine the relevant law and the Constitution, 1992 as a whole to determine the authenticity of the challenge. And in this regard, the fact that the alleged law had not specifically been repealed is totally immaterial, and affords no validity to that law. For article 1 (2) of the Constitution, 1992 contains an in-built repealing mechanism which automatically comes into play whenever it is found that a law is inconsistent with the Constitution, 1992. It, therefore, follows that the submission based on the fact that regulations 3(1) and 21 of LI 239 had not specifically been repealed, and therefore valid, misconceives the effect and potency of article 1 (2) of the Constitution, 1992 ….” (emphasis is mine)
Executive Instruments such as E.I. 164 is not part of the laws of Ghana envisaged under Article 11 of the Constitution, 1992, but are the means of implementing executive authority and they do not have a legislative character. From the above formulation, an Executive Instrument does not qualify as an instrument imposing criminal offence in Ghana. The imposition of a criminal offence by an executive authority is contrary to the principle of separation of powers since Article 58(2) envisages the execution and maintenance of the Constitution and all laws enacted by Parliament or under a power conferred by the Constitution.
Section 2(2)(h) of the Imposition of Restrictions Act, 2020 providing that imposition shall include provisions in respect of any other matter incidental to the attainment of the object of Act 1012 cannot justify imposing criminal offence by an Executive Instrument
I am of the view that the drafter of Executive Instrument (E.I. 164) criminalizing the non-wearing of face covering did not avert their minds to the combined effect of Articles 11, 19(5), 19(11), 19(21) and the Supreme Court binding decision in Osei-Akoto v Attorney-General.
In conclusion, I am of the considered view that an Executive Instrument cannot impose a criminal offence under our present constitutional dispensation. Therefore, the non-wearing of face masks is not an offence under the laws of Ghana in its present form.