THE DECLARATION OF STATE OF EMERGENCY AND ITS IMPLICATIONS ON CITIZENS AND SECURITY AGENCIES IN GHANA

11 June 2021

by Colonel Frederick Aboagye-Kasapa, Esq.

INTRODUCTION

An emergency is a situation that poses an immediate risk to health, life, property, or the environment. Most emergencies require urgent intervention to prevent a worsening of the situation, although in some situations, mitigation may not be possible and agencies may only be able to offer palliative and not curative care for the aftermath.

While some emergencies are self-evident (such as a natural disaster that threatens many lives), many smaller incidents require that an observer (or affected party) decide whether it qualifies as an emergency. The precise definition of an emergency, the agencies involved and the procedures used, vary by jurisdiction, and this is usually set by the government, whose agencies (emergency services) are responsible for emergency planning and management.

A state of emergency is a governmental declaration which usually suspends a few normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or man-made disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict. ________________________________________________________                                                                                                                                                           

In some countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-derogable rights. In many countries, it is illegal to modify the emergency law or the constitution during an emergency. This article seeks to examine the circumstances necessitating the declaration of a State of Emergency in Ghana, its enforcement, and its implications on the citizens/residents and security agencies with the view to facilitating a better understanding of the area of law and governance.

SITUATIONS NECESSITATING THE DECLARATION OF STATE OF EMERGENCY

While the laws in Ghana do not expressly define ‘state of emergency’ they provide for the circumstances which may give rise to one. The circumstances that could necessitate the declaration of a state of emergency which, include a natural disaster and any situation in which any action is taken or is immediately threatened to be taken by any person or body of persons which is calculated or likely to deprive the community of the essentials of life; or renders necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order and of supplies and services essential to the life of the community.

Several examples may be cited to illustrate some of the circumstances that have warranted the declaration of State of Emergency in Ghana, Africa, and elsewhere:

In Ghana – on Feb 2, 1994 Fighting broke out in the north near the border with Togo between Konkomba and Dagomba ethnic groups. The incident began with a dispute over prices in a market but quickly accelerated to large-scale violence. The government issued a state of emergency in the northern region in the districts of Yendi, Nanumba, Gushiegu/Karaga, Saboba/Chereponi, East Gonja, Zabzugu/Tatale, and the town of Tamale. About 6000 Konkombas fled to Togo as a result. The government also closed four of its border posts to prevent the conflict from spreading.

Also in Ghana, a State of emergency was declared by the government in April of 2002 following a chieftaincy dispute between two ruling families that led to the killing of the Dagbon King, Ya Na Yakubu Andani II, and 29 other people on 27 March 2002. The Declaration affected four main districts of Tolon-Kumbungu, Savelugu-Nanton, Gushegu-Karaga, and Zabzugu-Tatale. Upon recommendations of security agencies, the President maintained the state of emergency for close to two years in the northern regional capital, Tamale, and the Yendi district, which was the scene of the clashes that led to the Dagbon King's death. The King's palace was razed during the clashes while he was beheaded.

In Nigeria - On 14 May 2013, a state of emergency was declared for the entire north-eastern states of Borno, Yobe, and Adamawa. The State of Emergency was specifically implemented in reaction to terrorist attacks on Nigerians by Boko Haram.

In Egypt - The Egyptian presidency declared a state of emergency across the country on 14 Aug 13 and ordered the armed forces to help the Interior Ministry enforce security. This followed deadly countrywide clashes between supporters of deposed President Mohammed Morsi and the security forces.

Liberia declared a state of emergency for 90 days in 2014 due to an outbreak of the fatal disease Ebola.

Israel has been in a state of emergency since the 1948 Arab–Israeli War. Israel's parliament, the Knesset, re-extends the validity of the state of emergency annually

In the Palestinian Occupied Territories, Palestinian President Mahmoud Abbas declared a state of emergency in the Gaza Strip and West Bank following Hamas's takeover of power in the Gaza Strip.

Somalia has been in a state of emergency (Martial Law) since 2009.

Japan declared a state of emergency on March 11, 2011, due to a massive earthquake and tsunami near the Japanese island Honshu. 

THE APPLICABLE LAWS ON STATE OF EMERGENCY IN GHANA

The laws relating to the state of emergency in Ghana are contained in the 1992 Constitution and other statutes. The constitutional provisions on the state of emergency are found in Articles 31 and 32 of the 1992 Constitution. The Emergency Powers Act 1994 (Act 472) is the statute that regulates the declaration of a state of emergency in Ghana. As a member of the international community, Ghana is subject to international conventions which have been ratified such as the International Conventions of Civil and Political Rights (ICCPR). Under international law, rights and freedoms may be suspended during a state of emergency; for example, a government can detain persons and hold them without trial. All rights that can be derogated from are listed in the International Covenant for Civil and Political Rights. Non-derogable rights cannot be suspended. Non-derogable rights are listed in Article 4 of the ICCPR, they include the rights to freedom from arbitrary deprivation of liberty and to freedom from torture and/or ill-treatment.   

THE NATURE FORM AND PROCEDURE FOR DECLARATION OF STATE OF EMERGENCY

In accordance with the provisions of Article 31 of the 1992 Constitution, the President acting in consultation with the Council of State may declare a state of emergency covering a part of Ghana or the whole of Ghana by publishing a Proclamation to that effect in the gazette. After the declaration, the President is required to immediately present the facts and circumstances leading to the declaration of emergency to Parliament for approval or otherwise.  The emergency proclamation has a seven-day life span pending parliamentary approval. Parliament has seventy-two (72) hours within which to approve or revoke the emergency Proclamation by a resolution passed by a majority of all members of Parliament for that purpose. If the emergency proclamation is approved, the state of emergency will remain in force for three (3) months or such earlier date that may be specified in the Parliamentary resolution. If the proclamation is revoked, Parliament could specify in the revoking resolution that the emergency proclamation is revoked immediately, or that the proclamation may expire automatically after its seventh day of existence whichever is earlier. An approved emergency proclamation may be further extended by Parliament for a period of not more than one (1) month at a time. Parliament may also revoke an emergency proclamation at any time. 

A state of emergency confers consequential powers on the President. The President is empowered to take measures that the President may consider as ‘reasonably justifiable' for dealing with the emergency situation within the period that the state of emergency is in force.  

IMPLICATIONS OF THE DECLARATION OF STATE OF EMERGENCY ON CITIZENS

Chapter 5 (particularly art 12-30) of the 1992 Constitution guarantees human rights and freedoms including the right to life, personal liberty, respect for human dignity, equality as well as social, cultural, and economic rights, freedom from discrimination, protection from deprivation of property, freedom of movement, freedom to practice any religion and to manifest such practice, freedom of assembly eg; taking part in processions and demonstrations, freedom of association, freedom of speech and expression.

However, The Emergency Powers Act 1994 (Act 472) provides that on the declaration of a state of emergency, the President may take such measures as he considers are reasonably justifiable for the purpose of dealing with the situation that exists during the period that the state of emergency is in force. This provision in the Act is given legitimacy by Article 31(10) of the Constitution which provides that: “Nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent with, or in contravention of, articles 12 to 30 of this Constitution to the extent that the Act in question authorizes the taking, during any period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that exists during that period”

From the reading of the provisions of Act 472, the President during a state of emergency may cause the: detention of persons or the restriction of their movement; deportation and expulsion from Ghana of persons who are not Ghanaians; taking possession or control on behalf of the state of any property; compulsory acquisition of any property; searching without warrant of any premises.

The President may also cause the payment of compensation to any person affected by any action taken under the state of emergency; the arrest, trial, and punishment of persons for breach of any instruments, orders, or declaration related to the state of emergency; the suspension of operation of any law; and the removal of any person from the emergency area where the emergency relates only to a part of the country. During the Dagbon conflict in 2002, A dawn to dusk curfew was imposed on the inhabitants of the areas affected by the declaration of State of Emergency. This immensely impacted the livelihood of the people in the area. Additionally, the Ministry of Information imposed a news censorship on the events in the Dagbon Traditional Area. The Minister for Information at the time Mr. Jake Obetsebi Lamptey on the authority of the President indicated that unless a person was reporting an official release from his office any other news item on the Dagbon affair was to be cleared with his Ministry before publication.

IMPLICATIONS OF STATE OF EMERGENCY ON SECURITY SERVICES

Upon the declaration of State of Emergency, the President will normally issue an executive instrument in which instructions and directives are given for the compliance of all within the geographical area impacted by the emergency. Most importantly, in order to ensure that the directives issued are complied with by all, Specific orders are issued to the hierarchy of certain security services such as the Police, Military, Immigration Service, etc. Section 6(4) of Act 472 empowers other persons or authorities specified in the President’s executive instrument, orders, or declaration to take such steps or such actions as may be specified therein. Actions (usually enhanced powers) are dictated by the nature of the emergency situation.

The actions may include: Apprehending violators and suspected violators of the law; Preventing the escalation of violence; Evacuation operations; Cordon and search operations (sealing off a village to search for offenders, weapons, or equipment); Manning observation posts, in urban or rural settings; Guard duties at key points or for VIPs; Identity checks; Roadblocks or vehicle checkpoints (VCPs);  Controlling peaceful demonstrations;  Controlling or dispersing unlawful assemblies or demonstrations  (riot situations);  Enforcing curfews;  Making arrests; Detaining persons; Keeping sides apart (manning a “peace line” or “green line”);  Escort duties for the police, the fire brigade;  Hostage rescue;  Ambush, securing or picketing routes, for example, to ensure safe passage of supplies through sensitive areas.

During the Enforcement state of the declaration of State of Emergency, it is important that the Directives, orders, and instructions contained in the Executive Instrument are translated into digestible orders and rules of engagement to enable a good understanding of what is expected of the on-ground commander and his/her subordinates. This is to avoid as much as possible a high incidence of violations that will jeopardize the operational activities to enforce the declaration of the state of emergency. Any violation of the orders and instructions of the President by any single individual or unit may lead to serious consequences.

Individuals are criminally responsible for crimes they commit. Various forms of individual criminal responsibility exist, and as a consequence, individuals are not only criminally responsible for committing a crime, but also for attempting to commit a crime, as well as for assisting in, facilitating, aiding, or abetting the commission of a crime. They are also responsible for planning or instigating the commission of a crime.

A military superior will incur criminal responsibility if he knew or had reason to know that his subordinates were about to commit crimes or had done so and he failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The doctrine of Command responsibility is rooted in the time-honored notion of military command.

Additionally, there may be possible proceedings in civilian courts to claim damages in cases where individual or unit excesses result in the destruction of property or serious bodily harm. Needless actions may also embarrass and present the government as failing to observe its obligations under national and international law.

ENFORCEMENT OF THE DECLARATION OF STATE OF EMERGENCY

In order for the orders given by the president upon the declaration of emergency to be effectively implemented - there is the need for the establishment of a well laid out structure or mechanism such as the following:

Structure, Direction, and Control of Security Operations.   An appropriate structure and proper coordination of efforts of all security services from the top to the lowest level are necessary for the successful conduct of operations. A centralized direction and decision-making are also very essential for mission success.

A National Decision-Making Council. – There is the need for a national decision-making council at the highest level (strategic). This is essential to ensure that the aims of the government (President) are clearly interpreted in operational terms. Within the National Security Structure of Ghana as enshrined in the Security and Intelligence Agencies Act 1996 Act 526 this is depicted in the National Security Council (NSC). The NSC is composed of the President, the Vice President, the Ministers of Foreign Affairs, Defence, Interior, Finance, the Chief of Defence Staff and two others, the Inspector General of Police and two others, the heads of the Prisons Service, Customs Excise and Preventive Service, Internal and External Intelligence, Military Intelligence and three persons appointed by the President.

A National Operational Committee. - This is to operationalize the decisions taken at the National Decision-Making Council. The Operational Committees within the context of Ghana is represented in the Regional Security Councils (REGSECs) chaired by the Regional Ministers and the District Security Councils (DISECs) chaired by the District Chief Executives.

Designation of Operations Headquarters. – Apart from the designation of a National Operations Headquarters, a joint operations room at each level of command is very important. This provides a central point for feeding in information on the local situation. This also designates a meeting place for the various commanders and a place for disseminating critical and sensitive information and orders.

Appointment of a Director of Operations. – As part of the establishment of a structure for the implementation of the President’s orders, a person is appointed as Director of Operations. The person may be the head of the armed forces or the police depending on the anticipated security situation. He/She may have integrated coordination committees at each subordinate level chaired preferably by the senior officer of the local civil administration in whose support the operations are taking place.

Rules of Engagement (ROE). – Rules of engagement in the context of Internal Security Operations such as Declaration of State of Emergency, refers to the internal rules or directives that define the circumstances, conditions, degree, and manner in which the use of force, or actions which might be construed as provocative, may be applied. They provide authorization for and/or limits on, among other things, the use of force and the employment of certain specific lethal or non-lethal capabilities. A short description of the ROE should be issued to all personnel involved in the operation. Commonly referred to as an "ROE card", this document provides the security person military/police with a summary of the ROE regulating the use of force for a particular mission for which he/she has been deployed.

Use of Force. - Force must not be used at all unless necessary. Force is never justifiable unless its immediate object to be achieved is within ones’ powers. Security forces can only use force if it’s absolutely necessary & reasonable, and the degree of force used is never reasonable if it is more than what is required to achieve an immediate aim. Force is not to be used for punitive and or deterrent purposes. The use of firearms is to be limited to when there is an immediate threat to life through attacks on persons or property or if an attack has caused death/serious injury in the sight of troops & there is no other way of dealing with the situation. Even in this situation, the use of armed force must be reasonable in order to avoid collateral damage. Whenever force is to be used due warning of intent to open fire must be given when possible (unless hostile fire already commenced or when a delay could rapidly lead to the death/serious injury of those whom troops are to protect)

Regular Briefing, Orders, and Orientation of Troops. - Briefings are a commonly used method of communication in military/police settings. Briefings allow military and other professionals to convey information in very clear, concise, and efficient ways. The regular use of Briefings will ensure that every member of the team is adequately informed and has the same level of understanding. Orders are what allow members of a participating unit to operate in an organized and effective manner which is clearly very important during difficult operations. Mission success requires good internal functioning and hierarchical coordination. It is important to ensure compliance with orders and standard operating procedures which will produce the right attitude towards an impending operation. Orders may also be the means by which sub-unit Commanders break their units into subgroupings and give them specific instructions regarding their objectives, tasks, and resources available to them.

Legal Protection for Security Forces. There is legal protection available for law enforcers in an emergency situation such that permitted/legitimate actions may not be held to be in contravention of the Constitution or any other law. For example, legislation governing police use of force is contained in a series of longstanding laws and regulations, in particular the 1960 Criminal Code, the 1960 Criminal Procedure Code, and the 2012 Criminal Offences Act. Ghana also has separate regulations for police use of force: Police Force Regulations 1922 (No. 7). These regulations may by extension protect entities operating in aid of Police duties such as the military. Where authorized persons operate within the Executive Instrument promulgated by the President pursuant to the declaration of State of Emergency, such persons are afforded adequate protection under the law.

Safeguards against violation of Human Rights. It is recognized that during the conduct of operations in an emergency situation, there may be some level of violations of human rights & freedoms, to this end deliberate provisions are made to ensure protection against any possible excesses. Security operations during this period are always regulated with checks and safeguards aimed at protecting the liberty of the citizenry and at preventing unreasonable interference with the daily life of the population. Possible safeguards may mean that searches and arrests would be confined to defined areas. No trial or enactment for the trial of non-military persons by a military court is to be permitted (section 12 of Act 472). 

CONCLUSION

An emergency is either a determinable or undeterminable situation that poses an immediate risk to health, life, property, or the environment. Most emergencies require urgent intervention to prevent a worsening of the situation. A state of emergency is a governmental declaration which usually suspends a few normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order government agencies to implement emergency preparedness plans.

In Ghana the declaration of a state of emergency is by operation of law – specifically Article 31 of the 1992 Constitution and The Emergency Powers Act 1994 Act 472. The effect of the declaration is to limit the rights of citizens and expand the powers of the executive. The executive through the head of state or President establishes a structure to implement his directives and assigns various tasks to the security and other services and bodies to ensure the protection of life, property, and the survival of the state. This is however done within the limit of national and international laws.

Security Agencies are the primary tools used by the President to enforce the declaration of a state of emergency. It is important that all participating agencies are apprised of the nature form and procedure of the declaration and also know their scope of authority and limitations to ensure that lawful actions are taken to protect the citizens/inhabitants of the affected area(s).

References

The 1992 Constitution of Ghana

The Emergency Powers Act 1994 (Act 472)

The Security and Intelligence Agencies Act 1996 Act 526

The Criminal Code, 1960 Act 29

The Criminal Procedure Code 1960 Act 30,

The Criminal Offences (Amendment) Act, 2012 Act 849

The Police Force Regulations 1922 (No. 7).

Cole, Drew, McLaughlin, Mandsager, San Remo Rules of Engagement Handbook (San Remo: International Institute for Humanitarian Law, 2009)

https://www.thenewhumanitarian.org/report/46869/ghana-dagbon-state-emergency-and-curfew-relaxed

https://www.thenewhumanitarian.org/news/2002/04/01/news-censorship-troubled-north

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7, 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990)