Lawyer Kweku Y. Paintsil examines matters arising from Ghana’s “Imposition of Restrictions Act, 2020 (Act 1012)”
1.0 The Genesis:
1.1 On Friday 20th March, 2020, our elected representatives in Parliament unanimously passed the “Imposition of Restrictions Bill, 2020” under a Certificate of Urgency. It received Presidential Assent and was published in the Government Gazette on Saturday 21st March, 2020 as “The Imposition of Restrictions Act, 2020 (Act 1012)”.
1.2 The object of the law was to provide powers to the President to impose restrictions on persons to give effect to article 21 (4) of the 1992 Constitution “in the event or imminence of an emergency, disaster or similar circumstance to ensure public safety, public health and protection”.
1.3 The chronology of events leading to the making of the law shows that on Sunday night 15th March, 2020, the President made a televised address to the nation in which he stated, “in the interest of public safety and protection of our population”, to issue “public gathering advisories” and directed the suspension of “church services, weddings, funerals, other social gatherings” in Ghana. He also ordered the closure of universities, senior high schools and basic schools (excepting examination candidates) with effect from Monday March 16, 2020 until further notice.
1.4 Consequently, notwithstanding the wording of Act 1012 and/or its intended object, Ghanaians were in no doubt that the law was passed to deal with the possible ramifications of the novel Coronavirus pandemic (also known as “COVID-19) in Ghana. As to whether any of the President’s directives contained in the previous televised address(es) before Act 1012 became law had any effect or consequences in law would be left for a future discussion.
1.5 For now, however, our focus is on three relevant sections of Act 1012.
2.0 Relevant sections 5, 6 and 7 of Act 1012
2.1 “First, section 5 gave discretion” to the President “Where the circumstances make it expedient not to impose a restriction on certain persons or geographic areas under subsection (1) of section 2, the President may, by an Executive Instrument under that subsection, provide for an exemption”
2.2 Section 6 deals with the imposition of sanctions under the law. Simply put, “a person who fails to comply with a restriction imposed under the Executive Instrument issued under subsection (1) of section 2 commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units (GH¢12,000.00) and not more than five thousand penalty units (GH¢60,000.00) or to a term of imprisonment of not less than four years and not more than ten years or to both.”
2.3 Under section 7, being the Interpretation section, eleven (11) essential services (excluding legal services) were stated as the objects of exemptions from any restrictions that the President may impose. This was without prejudice to other “persons” that the President may by Executive Instrument exempt from restrictions pursuant to section 5.
3.0 E.I.64 and E.I. 65: The President’s use of his powers under Act 1012.
3.1 The first two uses to which the President put Act 1012 was to give assent to two Executive Instruments, namely, the “Imposition of Restrictions Coronavirus Disease (COVID-19) Pandemic Instrument, 2020 (E.I.64) and “Imposition of Restrictions Coronavirus Disease (COVID-19) Pandemic (No. 2) Instrument, 2020 (E.I 65). They received gazette notification on 23rd March, 2020 and 30th March, 2020 respectively.
4.0 Object of imposition and exemptions under E.I.64.
4.1 The object of E.I.64 was to impose within the whole of Ghana restrictions for a three week period on (a) all public gatherings; and (b) close down all educational institutions of whatever hue or colour. Thirdly, all borders of Ghana, by air, land and sea, were closed to human traffic for a period of two weeks.
4.2 Five (5) facilities or establishments, including markets, shopping malls, restaurants, were specifically exempted from the restrictions imposed by the Executive Instrument.
4.3 In addition all the eleven (11) “essential services” previously stated under Act 1012 were set down as also being exempted from the restrictions. In addition to that, seven (7) “security services” were added to the list as also being exempted from the restrictions.
4.4 For the avoidance of any doubt, lawyers or legal services did not form part of the three groups of exempted category.
5.0 Object of imposition and exemptions under E.I.65
5.1 The object of E.I.65 was very clear and explicit. It was intended to restrict the movement outside the place of abode of persons resident in Greater Accra and Greater Kumasi for a two week period.
5.2 The clear exception was where the movement outside the place of abode was :
a. to obtain food, medicine and water;
b. to undertake banking transactions;
c. to use public toilet facilities; or
d. to pay for utility services.
5.3 In addition to the “essential services” and “security services”, a comprehensive list of fourteen (14) persons or group of persons was also expressly exempted from the restrictions. A sample view of seven (7) persons or group of persons included
“3. Members of Judiciary numbers
a. Chief Justice;
b. Justices of the Superior Courts;
c. Judges of the Circuit Courts;
d. Magistrates of the District Courts; and
e. Members of the Judicial Service.
5. Staff of VALCO, Tema Oil Refinery. Petroleum Commission and Ghana Cocoa Board (COCOBOD and its affiliate bodies;
6. Road and railway construction workers
7. Mining workers
8. Fisherfolk and farmers;
9. Staff of fuel stations
10. Members of the Media.
5.4 Six (6) services, including food delivery services, hotel services and environmental and sanitation services were also exempted from the restrictions. Also included were all persons involved in the production, processing, distribution and sale of food and food related items as well as restaurants and chop bars (save only that “they may serve take-outs only”. However, there was not the remotest reference to lawyers or legal services anywhere in E.I.65.
6.0 The debate sparked by the omission of lawyers in Act 1012 and E.I 64 and E.I 65
6.1 Whatever views that members of the learned profession may have had about themselves and, in spite of the back-patting lawyers regularly give themselves, the fact that neither Act 1012 nor any of the two Executive Instruments expressly mentioned lawyers by name as a group exempted from the restrictions imposed by the President may have come as a rude shock. It was therefore not surprising that it sparked a very agitated and vibrant debate on most lawyers’ social media platforms.
6.2 The debate, of course, arose in part from the fact that between Act 1012 and E.I 65 there appeared to be a conscious effort to give exemption to all manner of persons and services that were deemed essential to the running of a democracy during a period of emergency. Added to this, and given our chequered political and constitutional history, was the uneasiness and anxiety that anyone, even a lawyer, may have in exercising a right to move around in an emergency on the basis of assumptions, suppositions or speculations only. For sure, everyone desires clarity beyond a shadow of doubt. It was therefore beyond belief that possibly the noisiest profession in the country had its name and role consigned to doubts and speculations under all three pieces of law.
6.3 At the height of the debate the argument divided into a simple question as to whether lawyers were part of the exempted group under E.I. 64 and E.I. 65 in the absence of a clear statement in the Instruments. Is it possible for the Executive arm of Government to have in mind all the persons and services without having in mind lawyers or the services they delivered? In any case, is legal service an “essential service” during a period of lockdown? An answer to this debate, either way, had and continues to have very deep and significant implications for lawyers and their practice.
6.4 For the cons, the record spoke for itself and did not require any argument. For the pros, however, the argument was very simple and appeared to be founded on deductive reasoning, being that, in so far as there could be no proper functioning of the courts/judiciary without the active role of lawyers, lawyers ought to be subsumed under the judiciary upon a purposive interpretation of Act 1012 and E.I. 64 and E.I.65. Further, or in the alternative, there was no way that lawyers could be reduced to a footnote and /or left out in any functioning democracy under any dispensation.
6.5 Notwithstanding that this argument appeared romancing, yet there was serious doubt as to whether that could form a sufficient reason for the clear omission of lawyers in the law and the two Executive Instruments. This is simply because, the argument itself contains in it the germ for sustaining the contrary view that if it were really so, that should have been the very good reason for lawyers to have been specifically mentioned in Act 1012 and/or the Executive Instruments as a group of persons whose services were most invaluable in a time of emergency, especially in a period where the human rights of citizens were likely to be impaired.
6.6 After all, and with all due respects, the inclusion of “staff of Valco, Tema Oil Refinery, mining workers, fisherfolk and farmers, staff of fuel stations, members of the media, chop bars” etc was or is sufficient testimony or evidence that their services were considered to be essential in a period of lockdown and, therefore, ought to be exempted from the restrictions imposed by the President. By an extension of that logic, if lawyers or their services were considered that essential, they would have received a mention.
7.0 The heightened irony introduced by the CJ’s pronouncement.
7.1 In the midst of this confusion the Honourable Chief Justice issued a Press Release on 30th March, 2020, under his hand and signature. It was on the “impact on the judiciary” of the “restrictions of movement of persons (imposed) …by the President”. His first observation and pronouncement was that “the restrictions imposed on the citizenry of Greater Accra and Greater Kumasi affect all lawyers and litigants and/or other Court users since these categories were not exempted”.
7.2 Relying on the first reason, he directed the “Registrars… to adjourn all cases listed during this period to dates in May and June 2020”. Finally, His Lordship gave notice of his setting up of 28 special courts “to deal with critical cases which may arise ie. Breaches arising from the restriction orders and other criminal matters”
8.0 My original and continuing beef with His Lordship the Chief Justice.
8.1 First, my agreement with His Lordship. I perfectly agree with His Lordship’s interpretation of Act 1012 as well as E.I.64 and E.I. 65 even though, admittedly, he was at the time of issuing the Press Statement exercising his purely administrative duty as Chief Justice, and not as a Justice of the Supreme Court. His Lordship was right because by a combined reading of Act 1012 and the two Executive Instruments, there was no mention of lawyers or the services they rendered at all. In the event, an attempt to interpret any of the three or all of them to include lawyers as a category of persons or service providers not affected by the lockdown is to engage in sophistry, and not law. I therefore wish to submit to His Lordship that I agree with him, and to borrow the expression that their Lordships are wont to use when they sit in judgment, “I have nothing useful to add” to his correct statement of the law.
8.2 However, my concern and continuing worry has to do with the inherent inconsistency or incoherence introduced by His Lordship by his own decision to set up special courts “to deal with critical issues which may arise” due to the imposition of restrictions, against the background of his verdict that “the restrictions (imposed by the President) affect all lawyers”. This was both a riddle as well as a sphinx. It raised the question as to how a lawyer under restrictions could still rise up to duty to deal with critical issues before the special courts. Leaving matters to stand in the manner His Lordship did against the background of all the uncertainty was, to my little mind, most unhelpful, his previous directives notwithstanding.
8.3 In the cacophony of noises that erupted after that initial observation, lawyers appear to have resolved that they could go about discharging their responsibilities based on their own sense of appreciation and duty. Indeed, following the protests I personally raised about the closure of the Court Complex on 1st April, 2020, I am advised that it was opened the very next day and it appears from credible reports that some lawyers are still going about business as if nothing happened. I am therefore careful to set out my views clearly so that it does not appear that I have given encouragement to anything that I am not personally convinced of in my mind to be right.
9.0 The way forward out of this conundrum.
9.1 As already stated, the Honourable Chief Justice was right when he opined that lawyers are not part of the exempted group of people who could defy the restrictions. The Chief Justice also acted right when he directed Registrars (and not Judges) to adjourn all cases for the period of the restrictions. Similarly, His Lordship acted with a sense of propriety when he set up special courts to deal with “critical issues” during this critical period.
9.2 However, we require admitting that the failure by Act 1012 and the Executive Instruments to mention lawyers as a specific group of persons who could perform their services despite the imposition of restrictions was a human error, what we call lacunae in law.
9.3 Besides, and for the avoidance of any doubt, the services lawyers are called upon or required to deliver during this critical period are those that are or can reasonably be connected to” critical cases which may arise i.e. Breaches arising from restrictions orders and other criminal matters” during the period of lockdown.
9.4 In my respectful view, this covers civil cases (as, for example, filing applications for bail, habeas corpus, etc) as well as criminal cases (as, for example, in defending those arrested for breach of the Executive Instruments as well as other criminal elements going about their usual business). Even then, it is not true that lawyers have an all-clear to proceed.
9.5 Save only as to the foregoing, it appears certain that the President has effectively shut down all other court business until such time that he, and not the Chief Justice, may by further directives under an Executive Instrument review. The Chief Justice accordingly acted right by giving the directions that the Registrars should adjourn all cases to May and June 2020.
10.0 The full legal implications of everything the President and the Chief Justice have said and done to date in relation to lawyers and the courts.
10.1 There are a few conceivable points that we may wish to note, as follows:
a. From the time of the lockdown until the President otherwise directs by an Executive Instrument, all normal court business is deemed to be suspended;
b. From the time of the lockdown until the President otherwise directs by an Executive Instrument all the statutory rules (on limitation of actions, etc )as well as rules of court dealing with time within which specific acts must be performed by a party in court is deemed to be suspended;
c. Even though lawyers are still defying the lockdown to come out to deliver legal services, it must be clearly registered that this has no legal backing whatsoever. Consequently, until such time that the loophole is fixed, all such services are being offered in clear breach of clear legislation;
d. All lawyers who are feverishly filing all sorts of processes in court (except such as can properly and reasonably be said to relate to the CJ’s directions) must know that they have in their hands the evidence of their breach of E.I.64 and E.I.65 and the same may be used in evidence against them as and when appropriate; and, finally,
e. We must all appreciate that lawyers are in a lockdown of their own. The confusion can and needs to be resolved by an amendment of a sort, possibly by the President executing a fresh Executive Instrument to include lawyers or the services that lawyers render as an essential service during a lockdown. Of course, since lawyers are functional with a complement of staff, there must be a clear dispensation to allow any lawyer who rises up to the present challenge to be able to do so with as few hindrances as possible.
 See section 5 of E.I 64