Two individuals have filed separate lawsuits at the Supreme Court against the government, challenging the legality of a United States of America defence co-operation agreement with Ghana, which has been ratified by Parliament.

Yaw Brogya Gyamfi, a member of the opposition National Democratic Congress (NDC), and Emmanuel Kotin, Executive Director for Africa Centre for Security and Counter Terrorism, filed the suits yesterday.

Yaw Brogya Gyamfi’s case

Yaw Brogya Gyamfi, who is the Ashanti Regional Youth Organiser of the NDC, is asking the Supreme Court to, among other things, set aside the agreement that was ratified by Parliament on Friday.

The writ has Attorney-General Gloria Akuffo and Defence Minister Dominic Nitiwul as the first and second defendants respectively.

According to Gyamfi, the two government appointees breached several laws in their bid to have the controversial Ghana-US military agreement ratified.

He is demanding nine reliefs from the court.

He is seeking a declaration that the Minister of Defence acted in contravention of articles 58 (1), 75 and 93 (2) of the 1992 Constitution when he laid or caused to be laid before Parliament an unexecutive draft of the supposed defence co-operation agreement for ratification under Article 75 of the 1992 Constitution.

Deal seeks to oust jurisdiction of Supreme Court

He argued that neither the executive nor the legislature has the power to enter or ratify a treaty that seeks to oust the jurisdiction of the Supreme Court in matters of interpretation of international agreements.

Even though the agreement was ratified on Friday amidst drama and chaos, Mr Gyamfi wants the Supreme Court to annul the agreement.



Emmanuel Kotin’s case

Emmanuel Kotin wants the Supreme Court to declare the agreement, which many Ghanaians, including some security experts have criticised, as null and void.

He is challenging the basis on which Ghana’s Parliament ratified the agreement, which, he argued, was not executed between Ghana government and the US government.

In his application, Kotin is praying the apex court to declare that “the agreement was not executed between the Government of Ghana and the United States of America upon which a liability will lie as at March 23, 2018 and as was laid before the Parliament of Ghana, there was nothing before Parliament to be ratified”.

He is seeking a declaration that to the extent that the Defence Co-operation, “the Status of United States Forces and Access to and Use of Agreed Facilities and Areas in the Republic of Ghana was not executed between the Government of the Republic of Ghana and the United States of America as of March 23, 2018 before same was laid before Parliament, any purported committee proceedings in Parliament approving and recommending same for subsequent ratification by the plenary of the Parliament of Ghana and any subsequent resolution passed by the Parliament of the Republic of Ghana is in contravention of Article 75 (2)(b) of the 1992 Constitution and the same is null and void and of no effect,” the application read in part.

Momentum has since last week gathered against the controversial documents, which government officials say is an enhancement of similar agreement signed by Ghana and the US in 1998 and 2015, which has since lapsed.

Critics have advised the government to proceed with caution in entering into such agreement as it will not be in the best interest of Ghanaians and the country.

The ratification process was characterised by drama as the minority, who vehemently opposed the agreement, walked out after making their disapproval known.

After a heated and chaotic debate that virtually reduced the august house to a marketplace, it became a one-side affair as there were only Members of Parliament on the Majority side who remained in the house to finish the last business of the day before Parliament went on recess.



Cabinet approval

Cabinet, at its 28th meeting on March 8, 2018, approved the agreement.

The ratified agreement grants US military personnel, defence contractors and agents, among other executive officials, unrestricted access to Ghanaian facilities for military and humanitarian purposes.

Ghana also grants the US military and civilian personnel a wide range of “privileges, tax exemptions and immunities” as those granted to administrative and technical staff of a diplomatic mission.

“United States Contractors shall not be liable to pay tax or similar charge assess within Ghana in connection with this agreement,” the document stated.
Personnel of the US military can also enter and exit Ghana using a wide range of travelling documents, including an identification card or individual travel orders.

Per the agreement, the US will use Ghana as a base to facilitate, among other things, training of its military, staging and deployment of US forces, aircraft refuelling and landing and recovery of aircraft.

Ghana is mandated to provide “unimpeded access to and use of agreed facilities and areas” to US forces, contractors and other staffs.

Again, Ghana, in the agreement, commits to provide access to and use of its runway that meets the requirements of United States forces.