#FixTheCountry: Court dismisses preliminary objection over AG’s application

Criminal High Court presided over by Justice Ruby Aryeetey, has dismissed the preliminary objection raised by lawyers of the #FixTheCountry campaigners challenging the capacity of the Attorney General to represent the Ghana Police Service in what the campaigners called a “civil matter”.

Lawyers of #FixTheCountry campaigners led by Julius Asinyo, on the 21 June challenged the constitutionality of the application filed by the Attorney General on behalf of the Ghana Police Service seeking the High Court to stop the campaigners from embarking on their planned demonstration.

The lawyers claim the Ghana Police Service is a separate and a legal entity and they should be applying to the court on their own and not through the Attorney General in a “civil matter”.

Objection by the Attorney General

However, the Attorney General, Godfred Yeboah Dame, opposed the preliminary objection raised by lawyers of the #FixTheCountry campaigners noting that the instant case is about the enforcement of the Public Order Act 1994, (Act 491), which makes it a pure criminal matter and not a civil one as claimed by lawyers of the plaintiff.

“These objections are completely misconceived. His whole point is on the fact that the instant application is a civil one. This is where he (lawyer for the #FixTheCountry campaigners) is totally wrong.

“The Public Order Act 194, (Act 491) falls within the criminal realm and not civil. That is why the Police is charged with the administration of the Public Order Act and they are the institution to which a person who is organizing a public even must notify,” the Attorney General said in open court.

“To hold on the lines my learned friend is thinking would lead to very dangerous consequences for the nation. It will imply that a police officer seeking to stop future protests would have to secure a private legal officer to represent him or her in court.

“I humbly submit that the application under Act 491 is not an action impesonam but rather an action on behalf of the Republic and the reliefs therefore are completely in-realm,” Godfrey Yeboah Dame added.

The ruling

Justice Ruby Aryeetey’s court in her ruling today the 25th of June 2021, indicated that the police cannot initiate any civil or criminal case without the approval of the Attorney General of the Republic based on article 88 (3,4,5) of the 1992 constitution which says; (3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.

(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.

The ruling of the court essentially paves way for the AG to move his substantive application seeking an order of the court to stop the proposed #FixTheCountry the demonstration.

Background

The state filed an application on notice based on the Public  Order Act 1994 (ACT 491) on the need for the notification and approval of the Police before any citizen can embark on a “special event” such as demonstrations.

Act 491 provides as follows: (1)Any person who desires to hold any special event within the meaning of this Act in any public place shall notify the police of his intention not less than 5 days before the date of the special event.

(2) The notification shall be in writing and signed by or on behalf of the organisers of the special event and shall specify— (a) the place and hour of the special event, (b) the nature of the  special event; (c) the time of  commencement; (d) the  proposed route and destination, if any; and (e) proposed time of closure of the event.

(3) The notification shall be submitted to a Police Officer not below the rank of Assistant Superintendent of Police or other Police Officer responsible for the nearest police station to the location of the proposed special event.

(4)  Where a Police Officer notified of a special event under subsection (1) has reasonable grounds to believe that the special event if held may lead to violence or endanger public defence, public order, public safety, public health or the running of essential services or violate the rights and freedoms of other persons, he may request the organisers to postpone the special event to any other date or to the relocate the special event.

(5)  An organiser requested under subsection (4) to postpone or relocate the holding of a special event shall within forty-eight hours of the request, notify the Police Officer in writing of his willingness to comply.

(6) Where the organisers refuse to comply with the request under subsection (4) or fail to notify the police officer in accordance with subsection (5), the Police Officer may apply to any judge or a chairman of a Tribunal for an order to prohibit the holding of the special event on the proposed date or at the proposed location.

(7) The judge or chairman may make such order as he considers to be reasonably required in the interest of defence, public order, public safety, public health, the running of essential services or to prevent violation of the rights and freedoms of other persons.

Based on these provisions, the state is seeking to stop the #FixTheCountry campaigners from embarking on any forms of demonstration.

Wilberforce Asare