The Minority in Parliament has accused President John Mahama of constitutional lawlessness as far as the transfer of two former Guantanamo Bay detainees into Ghana for a two-year stay is concerned.

Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih al-Dhuby, both Yemeni, were transferred to Ghana on January 7, 2016 after a deal was reached between the governments of Ghana and the United States of America.

The transfer raised uproar among Ghanaians, with several Christian groups demanding their immediate return.

At a press conference in Accra on Tuesday February 16 over the matter, the Minority caucus said President Mahama breached the constitution by allowing the two detainees to be transferred to Ghana.

“It is the people of Ghana who have elected President Mahama to exercise the powers of the people on their behalf and in their best interest. When power is exercised capriciously without due process, it is a usurpation of the people’s right. Our president is willing to bend over backwards to violate the immigration laws of Ghana by receiving these deportees. Ladies and gentlemen, I bet to say that a President should not indulge in constitutional lawlessness,” Subin MP Isaac Osei told journalists.

The Minority spokesperson on foreign affairs said the lack of transparency regarding the transfer of the two detainees was “unacceptable”, “except where Ghana’s national interest will be jeopardised by a more transparent and open policy”.

“President Mahama tells us these Gitmo detainees are low-level prisoners who have never been convicted, who were not dangerous and who deserve our compassion. Provide the secret year-long talks on the transfer of these two harmless people,” Mr Osei demanded.

According to him, a 28 December 2007 report by the US Department of Defence said Bin Atef is “a one-time fighter for Osama Bin Laden and his al-Qaeda group, who served in the 56th Arab Brigade.

He admitted he was a member of the Taliban and received training at the Al Farouk training camp.

He threatened to cut the throats of US citizens upon his release. The joint task force at Guantanamo Bay determined that he was a high risk and was likely to pose a threat to the US and its interests. The other detainee, Al-Dhuby was classified as being of medium-risk even though he manned military positions in Tora Bora in Afghanistan. This information was widely available in the New York Times, on Wikipedia, and at the US Department of Defence. It appears from the [Foreign Affairs] Ministers brief that this information did not form part of the documents the US gave to the Ghana government”.

“…The Foreign Affairs Minister indicated to the press that she was seeking clarification on the matter. We are yet to hear from her. But we wonder if this information would have led the President to a different decision. Can this also not expose the poverty of the investigation, if any, conducted by President Mahama on these two deportees?

"The US government says it has clarified all security issues and was grateful to Ghana for its humanitarian gesture and its willingness to assist the US to close down the Guantanamo Bay prison. The metamorphosis of the Gitmo two to low-risk is remarkable to say the least, unless the initial assessment by the Department of Defence was completely wrong,” Mr Osei added.

He said the confession of Hanna Tetteh and Mr Mark Woyongo, outgoing Minister for the Interior, that they were not privy to every discussion that led to the decision to transfer the two ex-detainees to Ghana, underscored the undemocratic way the President went about taking the decision, and also showed that the President exercised his executive powers without recourse to the constitution.

“If we, as a people, want our democracy to work, then the institutions and structures with specific mandates under the constitution must be allowed to work. Article 84 (A) of the 1992 constitution mandates the National Security Council to safeguard the internal and external security of the republic of Ghana. Article 83 (1) (C) makes both the Foreign Affairs Minister and the Minister for the Interior members of the National Security Council, yet these ministers were excluded from some meetings.

It is obvious that on a matter considered as a national security issue, both by the president and the Foreign Affairs Minister, a National Security Council meeting was not convened. If such a meeting was convened, why was the Minister for the Interior, who is also in charge of national security, not invited? The opaque negotiations expose the mala-fide feeling of the President. We are yet to come to terms with the extra-legal considerations, which went into deciding this matter. There are some, including the Foreign Affairs Minister, who think that the President was exercising his executive authority, which he draws from the constitution. It is true that Article 58 (1) vests the executive authority of the state in the president, but executive authority can only be exercised in accordance with the provisions of the constitution,” Mr Osei said.