The Supreme Court has declared as unconstitutional the agreement between the Governments of Ghana and the United States of America to admit the two GITMO detainees into Ghana.
The court said the then president by agreeing for the transfer of the two required ratification by an Act of Parliament.
Madam Margaret Bamful and Henry Nana Boakye in 2016 sued the Attorney General and Minister of Justice as well as the Minister of Interior, accusing government of illegally bringing in the two former Gitmo detainees, without recourse to the laws of the land.
The plaintiffs were therefore seeking a true and proper interpretation of Article 75 of the 1992 Constitution of Ghana, which states that “(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana. “(2) A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by-“(a) Act of Parliament; or “(b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.”
The applicants claimed that the President of the Republic of Ghana acted unconstitutionally by agreeing to the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhuby to Ghana.
The seven-member Supreme Court panel presided over by the Chief Justice, Sophia Akuffo, in a six to one majority decision said the two are illegally in the country since the then government allowed them into the country without prior approval by Parliament.
It said the agreement reached by the Government of Ghana and the United States was one that falls directly under the purview of the provisions of Article 75 of the 1992 constitution and the then government ought to have sought parliamentary approval before the two detainees were admitted into the country.
The court consequently ordered that the Government of Ghana, should within three months submit the agreement to parliament for ratification, or the two shall be returned to the government of the United States of America.
The two Guantanamo bay detainees, Atef and Al-Dhuby were in detention under the auspices of the United States government for 14 years after being linked with the terrorist group Al-Qaeda.