PANDEMIC BLUES: HOW GHANAIANS GOT CRUCIFIED IN “THE IMPOSITION OF RESTRICTIONS ACT, 2020 (ACT 1012)” By Kweku Y. Paintsil, Esq.
1.1 It is normally said that “the law is an ass”. I do not wholly agree with this assertion. On the contrary, I am always at pains to point out that the law is what the law says it is. The claim that the law is an ass could therefore only represent someone’s perception of the state of the law at any one point in time. After all, “one man’s meat is another man’s poison”. Besides, “ignorance of the law is no excuse”.
1.2 Consequently, as long as any particular piece of legislation exists on the statute books it has consequences for all purposes, including enforcement of the punishment for sanctions prescribed thereunder. The good news, however, is that the law is not static. It is subject to change. However, in the same way that the law does not come into being by itself, so it is subject to change from outside. Sometimes the change has to be wrestled from or forced on the law maker.
1.3 Looking at issues from this perspective, it would appear that citizens must always have themselves to blame if they have issues with a law and they fail for any reason to do something about it. There can be no better way of expressing this thought than to borrow from William Shakespeare’s “ Julius Caesar” in Act 1, Scene 3 where Cassius says of Caesar thus, “I know he would not be a wolf / but that he sees the Romans are but sheep.” . The lesson is deep: for a (Roman) leader to become a wolf and devour his citizens, the citizens must first make themselves lambs!!
2.0 The Imposition of Restrictions Act, 2020 (Act 1012).
2.1 On Friday 20th March, 2020, 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)”. The noble objective of the law was to give powers to our elected President to use his discretion to impose restrictions on Ghanaians “in the event or imminence of an emergency, disaster or similar circumstance to ensure public safety, public health and protection”.
2.2 For purposes of the exercise of his powers under the law, section 5 of Act 1012 mandated the President where he deemed expedient not impose “a restriction on certain persons … (and where he so decides not to do so ) “provide for an exemption” through the enactment of an Executive Instrument.
3.0 The Legislative assessment of how to deal with violations under Act 1012:
3.1 Beside the powers given to the President to be exercised through the publication of Executive Instruments under section 5 of Act 1012, our elected representatives had to consider and deal with the issue of how to deal with those who will fall foul of the law or breach the restrictions imposed by the President.
3.2 On this issue also, our own elected representatives in parliament were ad idem that anyone who breached the restrictions must not only be punished, but must be punished severely. Their collective wisdom was captured by section 6 of Act 1012 in these harrowing terms:
“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.
3.3 It bears emphasis to state that by the determined will of our elected representatives in parliament, once anyone was convicted for violating any of the restrictions imposed by the President and, however, trivial it may seem, the hands of any judge before whom the prosecution was done were tied. He would have no option, but to sentence the offender to a fine of a minimum of GH¢12,000.00 or a jail term of four (4) years or to both.
4.0 Presidential Assent to Parliamentary consensus to condemn Ghanaians to the gallows.
4.1 It is true that at the time that our elected representatives passed the law in the evening of Friday 20th March, 2020, they were determined that the sanctions they prescribed were not to be subjected to any further discussion, negotiations or debate by or with the Executive arm of Government, not to talk about the ordinary Ghanaian.
4.2 But that is to put it mildly. Under our Constitution, our President is not bound to accept everything that parliament does or passes “hook, line and sinker”. On the contrary, he has the power to disagree and refuse to consent to it through the exercise of his power of veto. He can do so by raising concern with the whole or any part of the law. That our President did not do so, but wholly agreed with our parliamentarians regarding every part of Act 1012 speaks volumes about how all our elected representatives think of us when they claim they are considering how to protect us during a period of emergency.
4.3 To be able to fairly assess what value our elected representatives’ place on the life of a Ghanaian already reeling from the frightening prospects of the novel Coronavirus, we may wish to take a look at how citizens elsewhere have been treated by their elected representatives under the same or similar circumstances such as ours.
5.0 The punishment regimes from elsewhere under lockdown regulations.
5.1 Let us first look at our colonial master Great Britain. In Britain police officers can give offenders an on-the-spot fine of £60 (GH¢429.00), reduced to £30 (GH¢214.50) if paid within 14 days. If they keep breaking the law, more fines can be given – up to a maximum of £960 (GH¢6,864.68). Severe or repeated breaches could lead to a conviction in a magistrate’s court and an unlimited fine.
5.2 In France fines for non-compliance start at €135 (GH¢853.00) and rise to €200 (GH¢1,263.00) for anyone who repeats the violation within two weeks. Four violations within 30 days are punishable by a six-month prison term and €3,750 fine.
5.3 In Italy, the penalties for people caught flouting the law was increased last week from €206 (GH¢1,299.00) to a maximum of €3,000 (GH¢18,934.00).
5.4 In Spain, however, fines vary from €100 (GH¢629.00) for entering restricted areas to €600 (GH¢3,775.01) and prison terms for serious abuse of emergency restrictions, such as protesting near infrastructure including power stations or transit hubs.
5.5 The United States, and, in particular, New York has the possible worst case scenario. Notwithstanding, New York City residents who break social distancing rules are now subject to fines up to $500 (GH¢2,894.00). Mayor Bill de Blasio said fines of $250 to $500 would begin for people found congregating in public spaces who fail to disperse when ordered.
6.0 The stark realities of Ghanaian life unseen by our elected representatives.
6.1 Since they live among us, our elected representatives know or ought to know that the person most likely to commit the offences under Act 1012 is the average civil servant, who lives at the subsistence level, earns an average income of about USD300 a month, in an economy where the cost of living per capita is USD295 per month. In other words, the average Ghanaian civil servant is unable to save, even for contingencies. Meanwhile the minimum fine of ¢12,000.00 is equivalent to this average person’s five years’ salary. He can hardly afford the services of a lawyer even on a pro bono basis. It follows that if such a person were to be arrested, he cannot afford the services of a lawyer. If he were successfully prosecuted and convicted, he cannot possibly pay the fine; consequently, he would have to serve a jail term of at least 4 years, in lieu of the fine.
6.2 In sharp contrast, his counterpart in Europe or USA earns an average monthly income far above that of the Ghanaian, in an economy where the cost of living is far better and manageable by any measure. He may not even require the services of a lawyer. And were he to be prosecuted and convicted, he would certainly not require more than a week’s salary to settle the fine. Besides, a judge in those jurisdictions would have more flexibility in ensuring that he does not go to jail for breaching any restrictions guidelines.
6.3 What is therefore abundantly clear is the fact that, not only were the fines imposed on offenders in other jurisdictions far less by comparison to ours, but there is a conscious effort by their elected representatives to avoid putting their citizens in prison. However, the Easter gift packaged by our honourables, many of them lawyers, for us appears to be a designer suit purposely made to fit the hapless and most vulnerable in our society, who are most often at the butt of our justice system, to go to prison with.
7.0 Where do we go from here?
7.1 I personally do not find justification for the shoddy and shameful way that our elected representatives continue to disconnect from the ordinary Ghanaian on the street. Undoubtedly, the whole world is going through what no one has witnessed before in a life time. The daunting prospects of the effect of the disease (COVID-19) have unleashed enough psychological trauma on people everywhere in a manner that most governments are presently unable to deal with.
7.2 Undoubtedly, laws would always be broken. Indeed, some opine that laws are made to be broken. It is also true that Governments cannot sit down unconcerned for laws to be broken or broken with impunity. However, what constitutes the fine line between deterrence and retribution is what I think our elected representatives have sorely missed.
7.3 In other words, I find it totally unbelievable that instead of calming the nation’s nerve at this crucial time, a group of honourables anywhere on earth would think that the best away of ensuring their citizens do not breach restriction regulations is to impose a sanction regime that is guaranteed to send them to prison upon the least breach or infraction.
7.4 This is strange because at all material times before Act 1012 came into being our elected representatives had the benefit and the opportunity to look at best practices elsewhere, including the prescription of punishments under lockdown rules and regulations. I am prepared to believe that in the mighty rush to pass Act 1012 they may have glossed over this aspect of the matter.
7.5 In other words I will find it difficult to believe that our parliamentarians actually considered the punishment regimes elsewhere and, somehow, came to a conclusion that they were too lenient for Ghanaians. The thought itself is objectionable to my conscience.
7.6 It has been remarked elsewhere that the mandate to rule in a modern democracy by a government of the people for the people by the people does not include a pretended claim by the rulers that they are infallible. On the contrary, it comes with a keen sense of acknowledgement that a government of people is likely to err and it is accordingly a government’s responsibility rather to aim at reducing the number of mistakes they make.
7.7 It is accordingly my submission that we are not condemned to have section 6 of Act 1012 in its present form on our statute books. On the contrary, parliament should consider recalling the law under a similar Certificate of Urgency to amend it forthwith to substitute the present penalty regime, which I consider unreasonable, with penalties that reflect the exigencies of the times and the circumstances of the ordinary Ghana. Taking out custodial sentence altogether and replacing the non-custodial sentence with a minimum fine of GHc500.00 and a maximum fine of GHc5000.00 should be the way to go in my humble view.
7.8 I have every confidence that we have a listening government who has ears to hear and eyes to see December 2020 and beyond and, accordingly, rise up to the occasion to do the needful. However, should my confidence be misplaced, my verdict would be one of reciprocity and equity. Since, ceteris paribus, we have general elections lurking in the shadows, we will pray to be patient and hope that this too shall pass, but reserve to ourselves the power to ask our elected representatives very simple question when they come knocking our doors for our mandate. Someone should also remember that even prisoners have votes in Ghana today.
From Kweku Y. Paintsil, Esq.