A late September demonstration in Accra against illegal mining activities in Ghana, led by the Democratic Hub group, has triggered a raft of constitutional issues related to the arrests of protestors.
Following the detention of protesters, a new three-day vigil was organized by activists under the banner of #FreeTheCitizens and #SayNoToGalamsey (the local word for illegal mining) from October 3 to 5 in Accra. They demanded the release of the 54 protestors who were held in police custody. After being kept in police custody for more than 14 days, 53 of the protestors except Oliver Baker Vormawor, the leader of the protest, were finally granted bail despite delay in the bailing process after a formal order from the court. Oliver Baker Vormawor himself finally succeeded in securing bail after three failed attempts and reported cases of health deterioration while under police custody.
Shortly after the release of the protesters, a lawsuit was filed against the Attorney General and the Inspector General of Police jointly over alleged breaches of their rights. The Ghana Federation of Labour, a trade union center, also threatened a nationwide strike if adequate measures against illegal mining were not implemented. In an effort to address this issue, the Attorney General directed the Environmental Protection Agency to present Legislative Instrument (LI) 2462 (allowing mining in forest reserves) to Parliament for revocation. This action by the Attorney General has sparked significant debate about the role of Parliament in the process of revoking an LI, if any exists. Among the prominent opinions is that of Clement Kojo Akapame, Esq., who argued that merely presenting the notice would be sufficient to complete the revocation process. He supports his argument with reference to the case of Opremreh v. Electoral Commission, which clearly stated that Parliament cannot amend an LI, as well as Article 11(7) of the 1992 Constitution, which grants Parliament the power only to pass or annul regulations, not to revoke them. He concluded by stating that the authority to revoke the LI lies with the Environmental Protection Agency.
In my opinion, the protest led by the Democratic Hub is one of the most significant events of Ghana’s Fourth Republic, if not the most significant. From its beginning, it has questioned our alignment and commitment to the principles of constitutionalism, the rule of law, and the doctrines of freedom and justice as our core constitutional values. It has illuminated the question of Parliament’s role in the process of revoking an LI, contrasting with the traditional practice where sections of legislative instruments are struck down by the courts as unconstitutional. This situation presents an opportunity to clearly define the procedure and functions of Parliament in the revocation process, a process that surprisingly lacks a clear precedent throughout our constitutional history.
I concur with Clement Kojo Akapame’s assertion that, by virtue of Section 10(4)(d) of the Interpretation Act, 2009 (Act 792), legislation should be interpreted in a manner that fulfills its purpose. In this context, granting the power to revoke an LI to the relevant authorities—who are more familiar with its intent and the issues it was designed to address—serves as a check on Parliament’s powers to revoke and amend legislation at will. Undoubtedly, this demonstration has the potential to leave an indelible mark on the fields of human rights law and power devolution, which are crucial aspects of Ghana’s constitutional framework.
