r I 993-94] 2.

G LR 459

NI~ W PATRIOTI C PARTY" lNSPECTOR·GEN lmA L

OF PO LICE
~lI I'IU, M" COU RT. ACe " A

30 Novembe r 1993

AI<e I IER U. FR ANl'O I ~, Mvll JA - SU~Y I.

AIKI NS, EDWARD WlllEDU, BMvIFOIW-AJ)J)()
AN D CIIA RLES J-\A YFRON-IJENJi\MIN JJSC

('oIiSfifltfiOIl(l/ /ml'-- /-"IfI/{/mIH'llu,f r ig/lis lind ji'eedol1ls- FrC'£,dol1l (~r (ls,H·IJI.h~v-'"

Ues/ric tioll fill tJ.\"crcise o/- Restrictiolls ill illleresl o/"Imblic st!/i.J(Y" 11erJllissih/e
Ilm/(,r (lrlie/t' 21 (-I)(c}- IJrercqlfi.\'i/cs.lor imposiliml o/rcxlricliol1- I'o/ic(' illljJ(I,\'illg
r('slriclioll ()fl Ji"eedoJII of(/s,\'clllhly nfp/ointiff"lI1der N I?( 'f) 68 ill in/eresl (?l"pllblic
(wdel" "- IVlle/hcr jllsl!/iab/e lInder article 21 (.I)(c) - Pllhlic Urder /)('(; 1"('(', !O i 2
(NllelJ (,N) - Crll/.\·Iilll tioll. 1992. art 21 (-/) (,y alld (c).
( '(lns/ilu/iomd low- Fum/omellial rights olld,/i"eedol1ls- Frcedofl1 ofa.\·scmhly- Prior
l'C'straint- Constitlltionality oJpriOI' "collsent" or "penllit" (~lmil1ister.lnr t!xercisC!
(!l./i'c"dollls- Sco/Je oJFcedoJJ/ (?/' {/,\'sembly IlI1der article 2/ (I )(d)--.)'l'~"ioll :-- ({
NUrlJ oS reqlfirillg prior permit or (:011,\'(,111 a/Minister/or tl/(' Inferior or /llId{'/" his
1IIIIhorify fiJI' excrcise (!/I'ight o/as,\'cmb(v-- IVhdher di.\'crefion{/l~v pm 11('1' (!/millis/cr
clo,!.! 011 exercise (?/FC'cdolll ({assembly-- Whet/wr r eq uirement (?/perJllil or coI/sc/1/
hllt:/id- N IU 'f) (1), S 7- ( 'ol/sfilll liol/, 1992, (/1'/ 21 (/ )(d),
( '(lm'tillilioIlO/ 1(l1II--FulU/oll1(,lIIal right,\, and ji'eedo/lls- Fi'eedolll (?f lIs,\'eJllh~v - I-I(I/ding
(!{ lIIeelillgs, IJI'ocessiolls or celebralioll of custollls- EYerei,\'e (!f./i·ccr!o/l1s II1m/c
,\'II/~ieclt() I,rior I,ermit (?fpolic(' IIl1der sectiOiI N ofNNCD 68- I'olicc' required 10
cOllsidel' (lJ1Jllica tior/.\' fhir~\' (lml illll){/I'{io/~)~)'ig,,{/;c(lIIC£' (!f police IJt'l'IlIil --No
provisioll oll/orlll or COllIN/II/or Oil s/(Indard/ol' assessing lI/Jplicatioll - 1JC'cisioJ/
o/l)o/ic<'Jilllll- lI'helher r('ol likelihood (llmisll,\'e oIdiscrctirm hy policc 10 slfppre,\'s
lumlol1lell/o/ Ji'(~C'dol1ls oml c.'ivi/ rights oj citizens- Whether prior Imlic(' permil
reqlliremelllluu{ul- N RClJ 60, s fi(/) lind (2) - Collxtilll ticm, 1992, arl21,
('oJistit lfliO/wl ICIlII--Flllld(llllel1la/ rights (lnd .!;'eec!ollls-·- FI'('ec!ol/J qf ossembly--
Lilllitmioll on exercise q/ll'('{,dom--( 'il/=cm,\' e.n-reisill!! r(cht q/asst'lI1h(IJslIi?iecl ol1ly
to pl'ovi,\'iolls (~/Al'f 29 - Cifi:::ell.\' 101llJIII(v excl'ci.\'illg right olassemhly I/ot guilty q/
lIIl)' (dlcllel'--Sedio" 12(0) ({NRC/) 68 elllpow(,l'il1!; po/icC' or pllhiic (dlieer to SfOp
(llId dispel'S£' li lly (/ss(,lIIh/y in Imhiic p/oce- /)o/ic(' 1'101 reql/ired 10 (lxxigll r(,(f,'itJ/'l
,Fw (felioll -Whelher 1lI!/i.·/1(!l'ed discre/ioll of police OJ' puhlic (?Uict'1' {,(Ulsti-
tllficJIIII/--Crilllillo/ Cod!', 196() (ACf 29)- NRCD 68. ss 12(a) amI
13(o) - CoI'IstilllliOl/, 1')92, lII'121 ( I)(cI).

Ii is provided by arlicJe 2 1( I )(d) and (4)(,,) and (c) of the Constitution, 1992 Ihal:
"2 1,( I ) A11 persons shall have the right to -
(d) freedom of assembl y in cludi ng Ii'eedom to lake pari in
process ions and demo nstrati ons,
(4) Nothing in, or done under Ihe authority of, a law sha ll be he ld to
460 Ghana Law Reports [1993-9412 GLR

be inconsistent with, or in contravention ot: this atticle to the extent that the
law in question makes provision - .
(a) for the imposition of restrictions by order of a court. that are
required in the interest of defence, public safety or public
order. on the movement or residence within Ghana of any
person~ or ...

(c) for the imposition of restrictions that are reasonably required

in the interest of defence, public safety, public health or the
running of essential services, on the movement or residence
within Ghana of any persoll or persons generally, or any class
of persons."

Section 7 of the Public Order Decree, 1972 (NRCD 68) gave the Minister for the
Interior the power to prohibit the holding of public meetings or processions for
a period in a specified area~ section 8 ofNRCD 68 provided that the holding of
all public processions and meetings and the public celebration of any traditional
custom should be suq,ject to the obtention of prior police permission~ section 12
ofNRCD 68 gave to a superior police officer the power to stop or disperse such
a procession or meeting~ and section 13 ofNRCD 68 made it an offence to hold
such processions, meetings and public celebrations without such permission. The
plaintiff, a registered political party, sought and was granted a police permit on
3 February 1993 to hold a rally at Sekondi on 6 February 1993. The permit was,
however, subsequently withdrawn by the police. On 16 February 1993, the
plaintiff in conjunction with other political parties embarked on a peaceful
demonstration in Accra to protest against the 1993 budget of the government but
the demonstration was broken up by the police and some of the demonstrators
were arrested and arraigned before the circuit court on charges of demonstrating
without a permit and failing to disperse c,ontrary to sections 8, 12(c) and 13 of
NRCD 68. On 17 February the plaintiff was granted a permit by the police to
hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J
B Danquah but the permit was withdrawn and the rally prohibited by the police
on the day of the rally. Aggrieved by those decisions and actions of the police,
the plaintiff brought an action before the Supreme Court for a declaration that (i)
sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a
contravention of the Constitution, 1992, especially article 21 (I )(d) thereof. and
were therefore nUll, void and unenforceable~ and (ii) under the Constitution, 1992
no permission was required of the police or any other authority for the holding
of a rally or demonstration or procession or the public celebration of any
traditional custom by any person, group or organisation. In SUppOlt of tile claims,
counsel for the plaintiff submitted that (a) sections 7 and 8 of NRCD 68
derogated fr0111 the fundamental human rights and freedoms, especially the right
of citizens to fi·eedom of assembly, including freedom to take part in processions
and demonstrations as provided under a11ic1e 21 (I )(d) of the Constitution. 1992~
and (b) any provision of a statute that sought to give power to a person to refuse
a rally being held in derogation of the right of the individual granted by the
r 1993-94] 2 GLR NPP v IGP 461

Constitution, 1992 was unconstitutional since any restriction contained in article

11 (4)( c) of the Constitution, t 992 should not be taken as giving a right to any
authority or person to refuse sllch a rally. In the circumstances, the police should
never be given the right to issue a perm it authorising a meeting, procession or
celebration. Although the defendant admitted the facts of the plaintiff's case, it
was contended in his defence that the right of freedom of assembly contained in
article 21 ( 1)(d) of the Constitution, 1992 was not absolute but was subject to the
restrictions contained in article 2 t (4) of the Constitution, 1992 and therefore
since sections 7, 8, 12(c) and 13 of NRCD 68 were reasonable restrictions
required by article 21 (4)(c) of the Constitution, t 992, those restrictions were in
confol'mity with the letter and spil'it of the Constitution, 1992.
Held: (I) article 21 (4(c) of the Constitution, 1992 could not be invoked
in aid of a valid exel'cise of authority under the Public Order Decree. 1972
(NRCD 68) because the imposition of restrictions under that provision on
the exercise of the fundamental fi'eedoms had to be'granted by a law which
imposed reasonable restrictions on the fundamental freedoms but did not
ueny the citizen the fundamental freedoms to which he wa~ entitled.
Besides, the restrictions under article '21 (4)( d) of the Constitution, 1992 had
to be for purposes of ·~p.ublic safety" and not "public order" and those
expressions referred to two different situations. In any case. whoever was
to impose the restrictions under article 21 (4)(~) of the Constitution, 1992
was required to exercise his discretion only when they were reasonably
required. Thus unlike the power under article 21 (4)(a) of the Constitution,
1992 which provided for the imposition of prior restraint by the COUlt on the
exercise of the fundamental freedoms, the power under article 21 (4{ c) of the
Constitution, t 992 was akin to the emergency powers which, ShOlt of a
presidential declaration of a state of emergency, might be exercised under
the authority of any law made to cover the situations and the persons
mentioned in article 21 (4)(c) of the Constitution, 1992. On the evidence,
however, no sllch situation had arisen in the instant case to justify the
invocation of article 2 I(4)(c) of the Constitution. 1992.
(2) Sections 7, 8, 12(a) and 13(a) of the Public Order Decree, 1972
(N RCD 68) were inconsistent with mticle 21 (1)(d) ofthe Constitution, 1992
and were therefore unconstitutional, void and unenforceable because:
(a) the freedom of assembly granted the citizen under mticle
21 ( 1)(d) of the Constitution, 1992 encompassed th~ right of
the citizens to come together to petition for redress of their
grievances or take part in processions and demonstrations in
SUppOlt ofor in opposition to a cause, policy or event. But the
consent or permit requirements under section 7 .of N ReO 68 .
sought to demand leave of the Minister for the Interior for the
exercise of those rights. with the necessary implication that
contrary to the provision of article 21 ( 1)( d) of the
Constitution, 1992, meetings, processions and demonstrations
462 Ghana Law Reports [1993-94] 2 GLR

were prohibited by law unless sanctioned by the minister or

anyone authorised by him. That proposition clearly violated
the enshrined provision of article 21 (I)( d) because by
investing the minister or other authority with unfettered
discretion to refuse his consent or permit, section 70fNRCD
68 placed the assertion by the citizen of his constitutional
rights of assembly, procession and demonstration at the mercy
of the authorities. Since, the generality ofNRCD 68 was to
create a prior restraint and a clog on the rights of the citizen
under article 21 (1)( d) of the Constitution, 1992 and thereby
denied him those freedoms to which he was entitled, it was
inconsistent with the letter and spirit of article 21 ( 1)( d) of the
Constitution, 1992 and accordingly unconstitutional. Kunz v
New York, 340 US 290 (1951) and Carroll v President and
Commissioners of Princess Ann, 393 US 175 (1968) cited.
Dicta of Lord Atkin in Berton v Alliance Economic Investment
Co [1922] 1 KB 742 and of Justice Douglas in Adderley v
Florida, 385 US 39 (1966) approved.
(b) although section 8(2) ofNRCD 68 required the superior police
officer to consider an appJication for permit under section 8( 1)
of NRCD 68 fairly and impartially, that duty presupposed a
choice between the citizen's right of assembly, procession and
demonstration against the choice of the senior police officer to
determ ine whether to refuse the permit on the ground that there
was the likelihood of a breach of the peace or that the meeting
or procession would be prejudicial to national security.
However, section 8(2) of NRCD 68 did not provide for the
form and content of an application for a permit nor the
yardstick or the standard which the officer should apply in
determ ining whether or not he should grant the perm it. And
although the police officer had to inform the applicant of the
reasons for his refusal to grant the permit, such refusal could
not be challenged in any court whether it was out of prejudice,
bias or even political preference or any flippant and untenable
ground. It was clear then that the danger that the awesome
power contained in section 8 of NRCD 68 could be used to
suppress the fundamental freedoms and civil rights of the
citizens was ~eaJ. Accordingly, even though under the
Constitution, 1992 either the courts or a relevant law might in
appropriate cases impose a restriction on any of the freedoms
contained in article 21 of the Constitution, 1992 the
requirement that a permit be obtained before the exercise
thereof was unconstitutional and therefore void. Dicta of
Justice Roberts in Hague v CIO, 307 US 496 at 515-516
[1993-94] 2 GLR NPP v lap 463

(1939); of Justice Douglas in Saia v New York, 334 US 558 at

560-561 (1948) and of the board in Francis ~ ChiqfofPolice
[1973] 2 All ER 251 at 255, PC approved.
(c) when citizens met or processed in a public place in pursuance
of their constitutional rights under article 21 (1 led) of the
Constitution, 1992 to form or hold meetings and processions,
they were su~iect only to the provisions of the Criminal Code,
1960 (Act 29). Accordingly, if a meeting, procession or
demonstration was being held lawfully and nothing done by
persons attending such meeting or forming the procession or
demonstration contravened the provisions of Act 29, such
persons should not be guilty under section 13(£1) ofNRCD 68.
Accordingly, the provision of section 12(a) of NRCD 68
which conferred on a police officer or an authorised public
officer unfettered, absolute, administrative powers to stop and
cause to be dispersed any meetings or processions in any
public place. without ascribing any reasons for it, abridged the
fundamental human rights of the citizen under article 21 ( 1)(d)
of the Constitution, 1992 and were therefore unconstitutional.
Beally v Gil/hanks (1882) 9 QBD 308. DC and Republic v
Kambey [1991] 1 GLR 235,. SC cited.
Per Anllla-Sekyi .JSC. I would have thought that it was self-evident that
the continued enjoyment by any community offundanlental human rights
was incompatible with any requirement that a permit or licence be first
obtained. Whoever has power to grant a pennit or licence has power to
refuse it. No one would regard a law which required that workers should
seek the prior permission of their employers before organising themselves
in trade unions as a reasonable restriction on their right to freedom of
association. Any such restriction on the right to freedom of assembly would
make it meaningless and a sham. Based as they are on a requirement that
permission be sought of the executive or one of its agencies before the right
to fi'eedom of assembly is exercised, sections 7,8, 12(a) and 13 of NRCD
68 are clearly inconsistent with article 21 (I )(d) of the Constitution, 1992.
Per Charles Ha)fron-Benjamin JSC. In construing article 21 (1)(d) and
(4) of the Constitution. 1992 therefore, it is clear that (1) the concept of
consent or permit as prerequisites for the enjoyment of the fundamental
human right to assemble, process or demonstrate is outside their purview.
Sections 7 and 8 ofNRCD 68 are consequently patently inconsistent with
the letter and spirit of the provisions of article 21 (d) of the Constitution,
1992 and are unconstitutional, void and uvenforceable; (2) some restrictions
as are provided for by article 21 (4) of the Constitution, 1992 may be
necessary from time to time and upon proper occasion. But the right to
assemble, proc~ss or demonstrate cannot be denied. The sections of
NRCD 68 which formed the basis of the plaintiff's writ were ex facie
464 Ghana L~w Reports [1993-941 2 GLR

unconstitutional, void and unenforceable.

Cases referred to:

(1) Lare/un v Allorl1ey-Genera/ (1957) 3 WALR 1 14.
(2) Ba/o~lI17 v Edusei (1957) 3 V\' ALR 547.
(3) Okine, 111 re [1959] GLR 1.
(4) All1pol7sah v /Vlilli.,·ler of Defence [1960] G LR 140, CA.
(5) DllIJ1oga, Re [1961] GLR 44.
(6) Ak%, Re [1961] GLR (Pt II) 523, SC.
(7) Tsihoe v KUI11(1si A1unicipli/ COllllcil [1959] G LR 253.
(8) Liversidge v Anderson [1942] AC 206~ 1.1941] 3 All ER 33R: 110
LJKB 724, I-IL.
(9) Slale v ()/chere 1.1963] 2 GLR 463. SC.
(10) R v Vincen't (1839) 9 C (.~ P 91 ~ 3 State Tr NS 1037.
(' 1) Beally v Gil/bunks (1882) 9 QBD 308~ 51 L.JMC I 17: 47 LT
194. DC.
(12) T1-(f/ilor v Allorney-Cieneral r 1980] GLR 637. CA sitting as SC.
(13) Green v PreIJlier G~Vl1rIUJlnl~V Slale Co r 1928] I K B 561: 97
LJKB 32~ 138 LT 90. CA.
(14) Republic v Kall1hey [1991] 1 GLR 235. se.
(15) KZl11z v New York. 340 US 290 ( 1(51).
(16) Carroll v President alld ('(Jll1l11issioners (~f Princess Anl1. 393 US
175 ( 1(68).
(17) Adderley v Florida, 385 US 39 (1966).
(\8) Suia v JVel1' York, 334 US 558 (1948).
(-19) I-Jagl.le v COl1l1nilleefor Indus Organizatiol1, 307 US 4()6 ( 1939).
(20) Berlon v Alliance EC0/10111ic lnl'cs1Jnenl Co LId [1922J I KL3 742:
91 LJKf3 748: 127 L T 422, DC.
(21) Francis v Chief(?lPo/ice [1973] 2 All ER 251.

ACTION by the plaintiff, a registered political party, against the

Inspector-General of Police for a declaration that sections 7, 8, 12(a) and
13 of the Public Order Decree, 1972 (NRCD 68) which required, inter
alia, that a permit or the consent of the Minister for the Interior or a police
officer be obtained before citizens could embark on a public
denlonstration or procession or celebration of a custom were inconsistent
\\lith the letter and spirit of article 21 (I led) of the Constitution, 1992 which
granted the citizen the freedom of assembly, and were therefore void and
unenforceable. The facts are sufficiently set out in the judgments of
Aikins, Bamford-Addo and Charles Hayfron-Benjamin .USC.
'- 1993-94] 2 GLR NPP v IGP (Archer CJ) 465

Pefer Ala Ac(je/ey (with him Sam Okudzeto~ Nana Akz{fo-Add()~ ~frall1
Asiedll and Alis.\' Gloria Akl{f{o) for the plaintiff.
AJar/in A B K Amidu, Deputy Attorney-General (with him Mrs Pohee-
()rleal1s and A1,..\' Adu.\'u-Amankwah, Chief State Attorneys) tor the
defendant.

A.·che .. CJ. I have had a preview of the reasons written by my brother

Charles Hayfron-Benjamin .JSC and I agree with them but I wish to add
a few words to demonstrate that police permits are colonial relics and
have no place in Ghana in the last decade of the twentieth century.
My brother has mentioned the Criminal Code~ 1892 but I want to
mention one particular Ordinance also enacted in the same year. It is the
Native Customs (Colony) Ordinance, Cap 197 passed on 15 July 1892.
This Ordinance restricted the celebration of native customs without the
permission in writing of the district commissioner in certain towns in the
colony, namely Accra, Ada, Axim, Cape Coast, Dixcove, Elm ina~ Keta,
Pram pram, Saltpond~ Sekondi, Shama~ Winneba, Anomabu, Apam,
Christiansborg, Kormantin, Labadi. Moree and Manford. Krobo custonlS
like dipo were also prohibited. Penalties were imposed for violations of
these restrictions and prohibitions. A district commissioner was also
empowered to make an order prohibiting the holding of company
meetings in a public place often or more members of a native company
under the direction of a supi or headman. Company flags or tribal
emblems could not be exhibited without the permission in writing of a
district commissioner. The police \vere given powers to seize such items.
Then on I July 1922 when the Police Force Ordinance~ Cap 37 was
enacted~ the police were under its section 54 given powers to regulate
traffic by stopping and diverting the course of traffic. The Governor in-
Council was also empowered to make regulations with respect to the.
assembling and movements of meetings and processions in public ways
and public places. It is interesting to note that section 54(3) of Cap 37
and the Native Customs Ordinance of 1892 prevailed until they \¥ere
repealed by the Public Order Act, 1961 (Act 58) which introduced police
perm its for meetings and processions in public places.
It seems incongruolls that legislation that was originally meant to
control asato companies, yam festivals, fetishes a century ago, should be
allowed to develop into hideous and ugly tumollrs on the near
immaculate face of ollr present Constitution, 1992. Those who intro-
duced police permits in this country do not require police permits in their
0\\,11 country to hold public meetings and processions. Why should \¥c
466 Ghana Law Reports [1993-94] 2 GLR

require them?
Article 21 of our Constitution, 1992 guarantees freedom of assembly_
including freedoln to take part in processions and demonstrations. Th is
provision is in consonance with silnilar provisions in the United Nations
Charter on Human Rights although Ghana was not a signatory in 194X
because it was a British colony at the time. The Organisation of African
Unity has produced an African Charter on Human and Peoples' Rights.
article 71 of which reads:
"Every individual shall have the right to assembly freely with
others. The exercise of this right shall be subject only to necessary
restriction provided for by law in particular those enacted in the
interest of national security, the safety, health, ethnics and rights
and freedom of others."

Ghana is a signatory to this African charter, and member states of the

Organisation of African Unity and parties to the charter are exp\!cted to
recognise the rights, duties and freedoms enshrined in the charter and to
undeltake to adopt legislative or other measures to give effect to the
rights and duties. I do not think that the fact that Ghana has not passed
specific legislation to give effect to the charter, means the charter cannot
be relied upon. On the contrary, article 21 of our Constitution, 1992 has
recognised the right of assembly mentioned in article 71 of the African
charter.
It follows that section 7 of the Public Order Decree, 1972 (NRCD 68)
is not only inconsistent with mticle 21 (1 led) of our Constitution, 1992
but is also in contravention of article 71 of the African Charter on Human
and Peoples' Rights adopted by the Assembly of African Heads of State
and Government in June 1981 in Nairobi, Kenya.
Finally, I would urge that the whole ofNRCD 68 should be reviewed
and modernised in its entirety to enable the Police Service to carry out its
duties effectively without contravening any provision in ollr current
Constitution. 1992.

Francois JSC. I have been privileged to read in advance the reasons

given by my learned colleagues for the unanimous decision we gave on
22 July 1993.
They arc full, comprehensive, and with a main thrust that accords
with Illy perception of the matter. I see no reason therefore to reduplicate
the effolts of my learned brethren by writing reasons of my own. I am
content to indorse the reasons given.
I: 1993-94] 2 GLR NPP v IGP (Alllua-Sekyi JSC) 467

Aluuu-Sckyi JSC. It is an axiom of British parliamentary democracy

that Parliament is supreme. This means that Parliament may pass any
laws that it considers ought to be lllade. If it takes a mistaken view of the
public interest and passes Jaws that are inimical to the welfare of the
community. or a section thereof. it's error must be corrected by itself.
and not by any outside body such as the courts. In this sy;tem of
government. much faith is placed in the good sense of those who. for the
time being. \vield power. It works best in a society where tolerance of
divergent views is regarded as necessary for the well-being of the
community. But where those who hold differing views are looked upon
as subversive. it breaks down completely and becomes tyrannical.
In the immediate post-independence period, our courts took the view
that in the Ghana (Constitution) Order-in-Council, 1957 our fOrlner
rulers had left us the kind of democratic government that they knew. that
is one in which Parliament had unlimited power to make laws. On this
basis. our COlllts upheld the validity of the Deportation Act, 1957., under
which aliens who were believed to be sympathetic to the political parties
opposed to the government were deported from the country~ the
Deportation (Othman Larden & Amadu Baba) Act, 1957 which brought
court proceedings challenging deportation orders to an abrupt end: see
L(lrdlll1 v Attorney-General (1957) 3 WALR 114~ the Deportation
(I ndcmnity) Act. 1958 which barred the courts from punishing the
Minister of the Interior and the Acting Commissioner of Police for their
contempt in carrying out a deportation order at a time when there were
proceedings in court challenging its validity: see Balo1:,TUI1 v EdLL\'ei
(1957) 3 WALR 547; the Preventive Detention Act., 1958 under which a
large nUll1ber of persons opposed to the government were arrested and
placed in custody without trial: see In re Okine [1959] GLR 1; Amponsah
v Minister (~f Defence [1960] GLR 140, CA~ In re Dumoga [1961] GLR
44; Re Akoto [1961] GLR (Pt II) 523~ SC and the Kumasi Municipal
Council (Validation of Powers) Act., 1959 by which an action for
damages for the demolition of the premises of a political opponent was
again brought to an end: see Ts;boe v Kumas; Municipal Council [1959]
GLR 253.
During this period of our history~ the courts said that they were
prevented by British constitutional conventions from making a stand for
the observance of human rights norms. Commenting on section 31 (1) of
the Order-in-Council which stated that "it shall be lawful for Parliament
to make laws for the peace~ order and good government of Ghana."
Smith J. an expatriate judge, said in Lanlan (supra) at 122-12~'
468 Ghana Law Rcports r1993-94\ 2 (jl J{
~~It is the same position in the case of South Africa. where the
Constitution provides that Parliament shall have 'full powcrs to
make laws for the peace, order and good government of the Union.'
It has been held in the case of NdlwlIlla v I-/{?fmeyer N. (J. (1937)
A.D. 229:
'Parliament's will therefore. as expressed in an Act of
Parliament. cannot now in this country. as it cannot in
England. be questioned by court of law whose function it is
to cnforce that wi II. not to question it.'

In conclusion. there are two passages I will quote. One is I"rom

May's Parliamentary Practice. and thc other from Lord
Wright's speech in Liversidge v. Andersol1 [1942] A.C. 20(>.
which I think are appropriate. The former is that:
'The Constitution has assigned no limits to the authority
of Parliament over all matters and qucstions within its
jurisdiction. A law may be unjust and contrary to the
principles of sound government. But Parliament is 110t
controlled in its discretion. and when it errs its errors can he
corrected by itself.'

The second quotation from Liversidge v. Anderson. is:

'All the courts today. and not least this I-louse. are as
jealous as thcy have ever been in upholding the liberty of
the subject. .. In the constitution of th is country there are
no guaranteed or absolute rights. The safeguard of British
liberty is in the good sense of the people and in the system of
the representative and responsible government which has
been evolved.'

In England it is not open to the court to invalidate a law on the

ground that it seeks to deprive a person of his life or liberty contrary
to the court's notions of justice and, so far as the Ghana
(Constitution) Order in Council. s.31 (1). is concerned. that is the
position in which I tind myself."

Our indigenous judges agreed. When in In re Dllll10ga (supra) Dr

Danquah, counsel tor the detainees. pointed out that Li"en"';{,~t,!,e v
Anderson [1942] AC 206. HL dealt with war-time regulations for the
arrest and detention of persons suspected of being sympathisers of the
11993-94] 2 GLR NPP v IGP (Anula-Sekyi JSC) 469

cllellly~ Adlllllua-Bossman J (as he then was) said at 55-56

"We are not at war, it is true~ but a fully sovereign parliament
composed of representatives of the people duly elected by universal
adult sun'rage. of which learned counsel for the applicants in his
political activities was one of the staunchest sponsors, has after due
deliberation decided that conditions exist as to make it necessary for
this rather drastic power to be conferred on the chief executive
orticcr ofth~ state to be by him exercised in his discretion. and has
accordingly Illade provision for it.
In these circumstances there can surely be little or no point in
rcsol1ing to the court~ and surely the course open to men of realistic
outlook is to adopt and pursue a policy of constant approach and
a ppea I to influential humaa~itarian parliamentarians to use their
influence and good offices to procure possibly a reduction in the
period of detention in some cases. or perhaps reconsideration from
time to time of the question of the termination o{the operation of
the enabling Act."

And when in In re Akolo (supra) the matter tinally reached the Supreme
Court. Korsah CJ. writing on behalf of himself, van Lare and Akiwum i
.USC said at 535:
"We do not accept the view that Parliament is competent to pass
a Preventive Detention Act in war time only and not in time of
peace. The authority of Parliament to pass laws is derived from the
same source, the Constitution. and if by it, Parliament can pass
laws to detain persons in war time there is no reason why the same
Parliament cannot exercise the same powers to enact laws to prevent
any person from acting in a manner prejudicial to the security of the
State in peace time. It is not only in Ghana that Detention Acts have
been passed in peace time."

With this pronouncement, all resistance to oppression came to an end.

We had rammed down our throats, a constitutional tyranny which those
who professed to believe in it called a "one-party" state. Dr Danquah
\vas arrested. detained and died in prison~ the Minister for the Interior
and the chiefofpolice who had taken refuge behind an Act of Indeillnity
to flout the authority of the courts were arrested and detailied~ the
Minister for Foreign Affairs and two protagonists of the new or~:er \vere
arrested and charged with treason. Acquitted in proceedings intituled
Stale v ()tchere [1963] 2 GLR 463, SC the verdicts were set aside by
470 Ghana Law Reports [1993-94]2 GLR

executive order: see Special Criminal Division Instrument~ 1963 (EI

161). Put back on trial before a more pliant bench, the executive had the
satistaction of seeing them convicted and sentenced to death. Mercifully,
the sentences were not carried out~ but a grave precedent had been set.
The judges \vere not spared: Korsah CJ was removed from oftice~ and a
constitutional amendlnent cleared the way for the dismissal of Adul1lu(l-
Bossnlan J (as he then was) and other judges whose loyalty to the
absolutist State was now called in question.
It was to rescue us from such an abyss of despair that on three
successive occasions~ in 1969~ 1979 and 1992~ elaborate provisions on
fundamental hUlllan rights have been set out in our Constitutions and the
~ourts given clear and unequivocal povver to enforce them. The
Constitution~ 1992 is now the supreme law of the land~ and any
enactment or executive order inconsistent with it is null and void. Thus~
except for the periods of dictatorship when these fundamental human
rights \vere suspended, our courts have since 1969 had po\ver to protect
the people from the abuse of legislative and executive power.
Unfortunately~ \ve have had too little experience of true democracy since
independence. Like a bird kept in a cage for years~ we have come to
think of the cage as home rather than a prison. The door has been flung
wide open, yet we huddle in a corner and refuse to leave.
In countries which practice true democracy, supporters and opponents
of every conceivable cause aloe given freedom to associate and express
their opinions. In the e~ld~ some have succeeded and their unpopular
demands have eventually become majority wishes and have been
recognised. Examples are the anti-slavery groups in eighteenth century
England and nineteenth century America, and the suffragettes of both
countries at the beginning of this century. Today, in these countries~
those who favour and those \vho oppose abortion may assemble and hold
demonstrations and processions in suppol1 of their cause while~ in the
less tolerant societies., one would be permitted and the other banned. In
this cOtlntry~ it would be unthinkable for any police officer to grant
honlosexuals a penn it to hold a demonstration in support of so-called gay
rights; but~ I ask, if in nineteenth century England the opponents of child
labour had been prevented froln stating their case, would it's evil
consequences have ever been recognised? In this day and age~ it is
necessary tor LIS to begin to see that consent~ not force~ is the basis of the
just society, and that it is not for the government or our neighbour to tell
us what to think~ or feel or do.
Most of the restrictions on our libel1y which. after years ofrepression~
[1993-94] 2 GLR NPP v lOP (Amua-Sekyi JSC) 471

we have come to accept, are inconsistent with democratic norms. Except

in a time of war, or when a state of emergency has been declared, it
cannot be right for any agency of the executive to suppress the free
expression of any opinion, however unpopular that opinion may be. The
believer in absolutism and the anarchist, those who support and those
who are opposed to aboltion, those who favour and those who oppose
equal rights for women-yes, lesbians and homosexuals too-are all
entitled to the free expression of their views, and the right to assemble
and denlonstrate in support of those views and to propagate those views.
Once the State takes for itself the power to licence associations,
assemblies and processions it resorts to support of the status quo, and the
only way of changing the prevailing state ofaff'airs is by the use of force.
The question now before us is whether section 7 of the Public Order
Decree, 1972 (NRCD 68) which gives the Minister for the Interior power
to prohibit the holding of a public meeting or procession in any public
place; section 8 ofNRCD 68 which requires any person who intends to
hold any such meeting or procession to obtain a permit from the police;
section )2 (a) of NRCD 68 which authorises the police to stop and
disperse any meeting or procession in a public place held in
contravention of the said sections 7 and 8 ofNRCD 68; and section 13
of NRCD 68 which makes it an offence to take part in a meeting or
procession held in contravention of the said sections are compatible with
the enjoyment by the people of this country of the freedol)l ofasselnbly
guaranteed in article 21 (1 )(d) of the Constitution, ) 992. The said
provision reads:
~'21 .( ) ) A II persons shall have the right to -
(d) freedom of assembly including freedom to take part in
processsions and demonstrations."

The plaintiff says that sections 7, 8, 12(a) and 13 ofNRCD 68 are not so
conlpatible and ought to be declared void; the defendant.. for his part,
says that they are and that their continued validity should be sustained.
Article 21 (4) of the Constitution, 1992 on which the defendant relies
reads:
"( 4) Nothing in, or done under the authority of, a law shall be
held to be inconsistent with, or in contravention of, this article to the
extent that the law in question makes provisioll-
(a) for the imposition of restrictions by order of a court, that
are required in the interest of defence, public satety or
472 Ghana Law Reports 11(9)-941 2 (i,LI{

publ ic order, Oil the movement or residence Will,ill Ullalla

of any person~ or
(b) tor the imposition of restrictions, by order of a court. 011 the
movement or residence withill Ghana of any persoll either
as a result of his having been found guilty of a criminal
offence under the laws 'of Ghana or for the purposes of
ensuring that he appears before a court at a later date for
trial for a criminal offence or for proceedings relating to his
extradition or Ja\vful removal from Ghana~ or
(c) for the imposition of restrictions that are reasonably
required in the interest of defence, public safety_ public
health or the running of essential services. on the movement
or residence within Ghana of any person or persons
generally. or any class of persons~ or
(d) for the imposition of restrictions on the ji-eedo/ll (?l ellt/~»)
into Ghana. or (~ll11ovel11el1t ill GhlJIUI, of a person who is
not a citizen of Ghana; or
(e) that is reasonably required for the purpose of safeguarding
the people of Ghana against the teaching or propagation of
a doctrine which exhibits or encourages disrespect lor the
nationhood of Ghana, the national symbols and emblems,
or incites hatred against other members of the comnlllllity~
except so far as that provision or, as the case may be, the thing done
under the authority of that law is shown not to be reasonably
justifiable in terms of the spirit of this Constitution."

(The emphasis is mine.) It is important to note that article 21 ( I) of the

Constitution, 1992, part of wh ich I have already quoted, deals not only
with freedom of assembly. but also with other guaranteed freedoms. such
as freedom of speech and expression in subclause (a), freedom of
thought, conscience and belief in subclause (b), freedom to practice any
religion and to manifest such practice in subclause (c). freedom of
association in subclause (e), and the right to information in subclause (t).
More importantly, it deals in subclause (g) with freedom of movement.
\vhich is defined there as "the right to move freely in Ghana. the right to
leave and to enter Ghana and immunity from expulsion from Ghana."
The distinction between freedom of assembly and freedom of
movement is this: the former is the right of individuals to come together
and to take part in processions and demonstrations in support o( or in
opposition to, a calise. policy or event~ the latter is the right of every
 r 1993-94] 2 GLR NPP v IGP (Aikins JSC) 473

individual freely to enter and to leave this country, nnd to reside in or

carryon business or other cconom ic or social activity in any part thereof.
Freedom of movement has nothing to do with suppolting or opposing the
policies of governments, or seeking to influence their direction~ which is
at the heart of freedom of assembly. Article 21(4) of the Constitution.
1992 does not sanction the placing of any curbs on freedom of assembly.
Subclauses (a)-(d) are concerned with fi'eedom of movement, and sub-
clause (e), with freedom of speech, thought and religion. What may be
banned under subclause (e) is the teaching and propagation of a doctrine
by speech or writing; but, here again, freedom of speech, thought and
religion are quite distinct from freedom of assembly.
I would have thought that it was self-evident that the continued
enjoyment by any community of fundamental human rights was
incompatible with any requirement that a permit or licence be tirst
obtained. Whoever has power to grant a permit or licence has power to
refuse it. No one would regard a law which required that workers should
seek the prior permission of their employers before organising
themselves in trade unions as a reasonable restriction on their right to
freedom of association. Any such restriction on the right to freedom of
assembly would make it meaningless and a sham. Based as they are on
a requirement that permission be sought of the executive or one of its
agencies before the right of freedom of assembly is exercised~ sections
7. 8~ 12(0) and 13 of NRCD 68 are clearly inconsitent with article
21 ( 1)(d) of the Constitution. 1992.
Our own experience and that of other countries which have gone
down the slippery road to dictatorship teach us to bear in mind Lord
Acton's well-known aphorism. "Power tends to corrupt, and absolute
power corrupts absolutely." The lessons of history are there for all to
see: we ignore them at our peri I.
It \'vas for these reasons that I concurred in the orders declaring
sections 7, 8. 12(a) and 13 ofNRCD 68 void.

Aikins JSC. A unanimous judgment in this case was delivered on 22

.July 1993 granting the declarations sought by the plaintiff. We reserved
our reasons. I agree with the reasons contained in the jugment of my
brother Charles I-Iayfron-Benjamin JSC which I have had the opportunity
to read in draft. All the same I would like to say a few words in addition.
Even though under rule 53(2) of the Supreme Court Rules, 1970 (CI 13)
the parties were entitled to call witnesses to testify to the facts contained
in their respective statements of case, this court decided to take the
474 Ghana Law Reports [1993-94] 2 (lLR

common legal issues involved in the CHSC. •

The reliefs sought by the plaintiff arc two-told. namely that:
"(a) Section 7 of the Public Order Decree. 1972 (N ReD 6H)
which oives to the Minister for the Interior the power to
prohibi~ the holding of public meetings or processions for
a period in a specified area~ section 8 of the said Decree
which provides that the holding of all public processions
and meetings and the public celebration of any traditional
custom shall be subject to the obtention of prior police
permission; section 12 (c) of the said Decree which gives to
a superior police officer the power to stop or disperse sllch
a procession or meeting~ and section 13 of the said Decree
which makes it an offence to hold such processions.
meetings and public celebrations without such perm ission.
are inconsistent with and a contravention of the
Constitution, 1992 especially article 21 ( 1)( d) thereof. and
are therefore null, void and unenforceable.
(b) Under the Constitution. )992 no permission is required of
the police or any other authority for the holding of a rally or
demonstration or procession or the pub) ic celebration of
any traditional custom by any person. group or
organisation."

Arguing on behalf of the plaintiff, leading counsel, Mr Peter Adjetey.

submitted that sections 7 and 8 of the Public Order Decree, 1972 (NRCD
68) derogate from the fundamental human rights and freedoms.
especially the right of persons to freedom of assembly, including
freedom to take part in processions and demonstrations as contained in
article 21 (I )(d) of the Constitution, 1992. He further submitted that any
provision of a statute that seeks to give power to a person to refuse a rally
being held in derogation of the right of the individual granted by the
Constitution, 1992 is unconstitutional, and any restriction contained in
article 21 (4)(c) of the Constitution, 1992 should not be taken as giving
a right to any authority or person to refuse such a rally. In effect. learned
counsel submitted that the police should under no circumstances be given
the right to issue a permit authorising a meeting, procession or
celebration.
In reply~ the learned Deputy Attorney-General, Mr Martin Amidu,
urged that the right of freedom of assembly contained in al1icle 21 (I )(d)
of the Constitution., ) 992 is not absolute but is subject to restrictions
[1993-94] 2 GLR NPP v IGP (Aikins JSC) 475

contained in article 21 (4) of the Constitution, 1992. He subm itted that

sections 7, 8, 12«(:) and 13 of NRCD 68 are reasonable restrictions
rcclu ired by article 21 (4)( c), of the Constitution, 1992, and that these
restrictions are in conformity with the letter and spirit of the Constitution,
1992. .
. Section 7{ I) of NRCD 68 makes unlawful the holding of a public
meeting or procession held in contravention of an executive instrument
made by the Minister for the Interior prohibiting the holding of such
meeting or procession for a specified time 'in a specified place or area.
And section 8 of NRCD 68 makes it imperative for any person \vho
intends (a) to hold or form any meeting or procession, or (b) to celebrate
any traditional cllstom, in any public place to apply in the first instance
to a superior police officer for pennission to do so. This section goes on
to say that s,uch superior police officer after considering the application
shall issue a permit authorising the meeting, procession or celebration
"unless he is satisfied upoli reasonable grounds that it is likely to cause
a breach of the peace or to be prejudicial to national security."
It is clear from the language of the two sections that they are
inconsistent with and are in contravention of the provisions of article
21 ( I )( d) of the Constitution, 1992 which unreservedly gives the
individual the right to freedom of assembly, including freedom to take
part in processions and demonstrations. The only provision of the
Constitution, 1992 that inhibits this right is contained in article 21 (4) of
the Constitution, 1992 which allows a law that makes provision for the
illlposition of restrictions:
"(a) ... by order of a court, that are required in the interest of
defence, public safety or public order, on the movement or
residence within Ghana of any person~ or
(b) ... by order of a court, on the movement or residence
within Ghana' of any person either as a result of his having
been fOllnd guilty of a criminal offence under the laws of
Ghana or for the purposes of ensuring that he appears
before a court at a later date for trial for a crilll inal offence
or for proceedings relating to his extradition or lawful
removal from Ghana; or .
(c) ... that are reasonably required in the interest of defence,
public safety~ public health or the running of essential
services, on the movement or residence within Ghana of
any person or persons generally, or any class of persons
476 Ghana Law Reports [1993-941 2 GLR

Article 21 (4) of the Constitution, 1992.. however, makes it clear that this
provison will not apply if the thing done under the authority of that law
is not shown to be reasonably justifiable in terms of the spirit or the
Constitution, 1992. In my view. these three subclauses, ie (a), (b) and (c)
of article 21 (4) of the Constitution, 1992 are mere restrictions. and any
law that extends to give authority to any person or persons to prohibit or
grant a permit to other persons to take part in processions and
demonstrations curtails the freedom of such persons and cannot be said
to be justifiable in terms of the spirit of the Constitution. 1992.
It is possible that a lawful procession or demonstration may be
obstructed or defeated by counter-demonstrations, or aggresivc
provocation from hangers on. and it is doubtless with this in mind that
the framers of the Constitution, 1992 allowed that a law could be made
for the imposition of restrictions that are reasonably required. for
example giving directions and conditions, in the interest of defence.
public safety, public order, public health or the running of essential
services. It should be noted that this provision does not give any power
to the police or anyone else to forbid the holding of any meeting.
procession or demonstration. Such a prohibition must await the event
and can only be issued if and when a reasonable apprehension of a breach
of the peace has arisen. There are, however, general statutory powers to
control processions contained in the Criminal Code, 1960 (Act 29), for
example disturbance of lawful assembly (section 204): offensive conduct
conducive to breach of peace (section 207)~ obstruction of publ ic way
section 287(c)~ commission of nuisance in any public or open space
(section 296(2)): obstructing public way (section 296( 16)~ assembling for
idle, etc purpose and 110t dispersing when required by a constable
(section 296(21)) and acts tending to disturb the peace in a public place
(section 298). Moreover any meeting or procession which constitutes an
unlawful assembly may be dispersed under section 202 of Act 29. and it
may be lawful to disperse a lawful assembly where necessary te prevent
a breach of the peace. But there must be clear evidence that a breach of
the peace is likely to be committed.
Adnlittedly~ it is not easy to decide at what point action will be
necessary. A policeman may be overcautiolls and envisage disturbance
fronl the attitude of the crowd follo\ving the procession or the presence
of some interrupters. but care mllst be taken that action is not taken to
intervene by the police as a matter of officiousness. It is vcry tempting
r1993-94] 2 GLR NPP v IGP (Edward Wiredu JSC) 477

tor some policemen to adopt the attitude of being too ready or willing to
give orders. or misuse their authority and be bossy and interfering, ready
to show the public where power lies. This is why it is dangerous, if not
unconstitutional, for the police to be given the power under section 12 of
NRCD 68.
In some Iiberal countries, the courts had in the course of time been
inclined to extend the offence of unlawful assembly to gatherings for a
lawfu I purpose if those present at the meeting, procession or
demonstration behaved in such a way as to give rational men around,
reasonable ground to fear a breach of the peace: see R v Vincenl (1839)
9 C & P 91 at 109. But the law did not extend to holding such meeting
to be unlawful which in itself did not give rise to any fear but was
threatened by disturbances from an outside source like aggressive
hangers on.
So in the English case of Beatty v Gil/banks (1882) 9 QBD 308, DC
where a court of petty sessions convicted local Salvationists of unlawful
assembly and ordered them to find sureties to keep the peace, the
Divisional Court on appeal held that since the association was for
rei igious exercises, but the disturbance of the peace was caused by the
Skeleton Army, opponents of the Salvationists, and the Salvationists
themselves had committed no acts of violence, their assembly and
procession could not in itself be unlawful, and so it was wrong to convict
them of unlawful assembly and bind them over to keep the pem.,e. This
is a case that warned the police that they could not take the easy course
of dispersing an otherwise lawful assembly for the simple reason that
they, the police. feared opposition from another body.
It is for these reasons that I agreed with my learned brothers and sister
that the writ of the plaintiff should succeed and that the plaintiff was
entitled to the declarations sought therein.

Ed",'ard Wiredu JSC. I feel completely satisfied that the reasons

contained in the opinion of my brother Charles Hayfron-Benjamin JSC
which is about to be read, which reasons I have been privileged to have
read beforehand, which opinion has also been concurred in by the Chief
.Justice and my brother Francois JSC, accord with my own views on the
issues raised in this case that I cal) do no better than to concur and to say
simply that a police permit has no place in the Fourth Republican
Constitution. 1992.
The police permit has outlived its usefulness. Statutes requiring such
perm its for peaceful demonstrations, processions and rallies a: ~ things
478 Ghana Law Reports [1993-94] 2 GLR

of the past. The police pennit is the brainchild of the colonial era and
ought not to remain in our statute books.

Bamford-Addo JSC. I agree with my able brother Charles Hayfron-

Benjalnin JSC for the following reasons. The plaintiff. a political party,
has invo"ked the original jurisdiction of this court under article 2( I )(a)
and (2) of the Constitution, 1992 and is seeking a declaration to the effect
that:
(J) the provisions of sections 7, 8. 12 and 13 of the rubl ic Ordcr
Decree. 1972 (NRCD 68) are inconsistent with those of article
21 (1 led) of the Constitution" 1992 and are consequently null and
void and unenforceable; and
(2) that under the Constitution" 1992 no permission is required of
the police or any other authority before the holding of a rally or
demonstration or procession or the public celebration of any
traditional custom by any person. group or organisation.
The Constitution" 1992 guarantees for all persons, certain
fundalllental human rights as set out in article 21 thereof. I quote here
the provision most relevant to this ease for ~ase of reference. ie article
2I(J)(d) and (4)(c) which provide as follows:
"21.(1 ) All persons shall have the right to-
(d) freedom of assembly including freedom to take part in
processions and demonstrations ...
(4) Nothing in" or done under the authority of. a law shall be
held to be inconsistent with, or in contravention ot~ th is article to thc
extent that the law in question makes provision-
(c) for the imposition of restrictions that are reasonably
required in the interest of defence, public safety. public
health or the running of essential services. on the
movement or residence within Ghana of any person or
persons generally, or any class of persons ... :
except so far as that provision or. as the case may be. the thing done
under the authority of that law is shown not to be reasonably
justifiable in terms of the spirit of this Constitution."

The issue for determination in this case is simply whether or not the
provisions of sections 7" 8, 12 and 13 of the Public Order Decree. 1972
(N RCD 68) are inconsistent with article 21 (I )( d) of the Constitution.
J 992. Section 8 ofNRCD 68 provides that:
[1993-94] 2 GLR NPP v IGP (Bamford-Addo JSC) 479

~~8.( I) Any person who intends-

(u) to hold or form any meeting or procession; or
(b) to celebrate any traditional custom~
in any public place shall first apply to a superior police officer for
permission to do so.
(2) The superior police officer shall consider the application
fairly and impartially, and shall issue a permit authorising the
meeting, procession or celebration unless he is satisfied upon
reasonable grounds that it is likely to cause a breach of the peace or
to be prejudicial to national security.
(3) The superior police officer may prescribe in the permit such
conditions and restrictions as are reasonably required-
(a) in the interests, of defence, public order, public safety,
p,ublic morality, public health or the running of
essential services; or
(b) to protect the rights and freedoms of other persons.
(4) Where an officer refuses to grant a perm it under th is section
he shall inform the applicant in writing of the reasons for his
refusal. "

It is the case of the plaintiff that on 16 February 1993 it's members

and Inembers of other political parties embarked on' a peaceful
demonstration in Accra to protest against the 1993 budget of the
government, in the exercise of their fundamental human right~ namely
freedom of assembly and freedom to demonstrate~ guaranteed to them by
article 21 (1 )(d) of the Constitution, 1992. That while on this peaceful
demonstration it's members and the other participants were violently
assaulted by the police and some of them were arrested and charged with
the offence of demonstrating without a perm it contrary to sections 8, 12
and 13 of NRCD 68 which law the plaintiff claims is contrary to and
inconsitent with article 21(1)(d) of the COilstitution, 1992. That under
the circumstances the sai'd sections ofNRCD 68 are null and void and
unenforceable.
The defendant in his statement of defence admitted the facts of the
plaintiff's case but contended that sections 7, 8, 12 and 13 ofNRCD 68
are reasonable and lawful restrictions on the freedom of assen~bly
granted under article 21 ( 1)(d) of the Constitution, 1992 and therefore
those sections are not null and void.
The senior counsel for the plaintiff, Mr Peter Ala Adjetey, sublnitted
that a permit is not required because such a law as section 8 ofNRCD 68
 Ghana Law Reports [1993-9412 GLR
480

stipulating that a permit must be obtained before a demonstration is held.

ilnposes a precondition on the exercise of the right of fn~e ~ssembly.
which is now inconsistent with alticle 21 (1 )(d) of the Constitution. 1992
and is consequently null and void. If Mr Adjetey is right. then it follows
that sections 12 and 13 ofNRCD 68 would suffer a similar fate. and the
plaintiff would be entitled to the declarations sought in the writ.
The Constitution. 1992 guarantees to all persons the fundamental
human rights and freedoms set out in chapter 5 of the Constitution. 1992
and specifically under article 21. Article 12 of the Constitution, 1992
provides that:
"J 2.( 1) The fundamental human rights and freedoms enshrined in
this Chapter shall be respected and upheld by the Executive,
Legislature and Judiciary and all other organs of government and its
agencies and, where applicable to them, by all natural and legal
persons in Ghana. and shall he enforceable by the Courts as
provided for in this Constitution.
(2) Every person in Ghana. whatever his race, place of origin.
political opinion. colour. religion. creed or gender shall be entitled
to the fundamental human rights and freedoms of the individual
contained in this Chapter but subject to respect for the rights and
fi'eedol11s of others and for the public interest."

(The emphasis is mine.) Article I (2) of the Constitution, 1992 also

provides that:
"(2) This Constitution shall be the supreme law of Ghana and
any other law found to be inconsistent with any provision of this
Constitution shall, to the extent of the inconsistency, be void."

Therefore if it is found that section 8 ofNRCD 68 which imposes a

precondition on the exercise of the right to the freedom of asseillbly is
inconsistent with the absolute or unrestricted freedom of association
granted by the Constitution, 1992 in article 21 (])( d), then that
inconsistent law is according to article 1(2) of the Constitution, 1992 null
and void.
What then is the ordinary meaning of the words "freedoln" and
"permit?" The word "freedom" according to the Oxford Advanced
Learner's Dicliol1co:y (4th ed), p 492 is defined as: "condition (?f being
.tree . .. to act speak. etc, as one pleases without intelj'erence . , . state c?t'
being unrestricted in one's actions" (The emphasis is mine.) and the
nleallillg of "perm it" as defined at p 92 I is "Give pCrll1is.\·;on/hr, al/cHII."
[1993-94] 2 aLR NPP v lap (Bamford-Addo JSC) 481

The noun of the word '~perm it" is "an official document that Kives
['\'oll1ebodyJ the riKlt1 10 do b·omelhil1g]. .. "
Freedom to act therefore means the absolute right to do something'
without preconditions and admits of no obligation to obtain permission
of anyone before acting. Freedom to act and the obligation to obtain a
perm it before acting are contradictory and direct opposites and they
cannot coexist. If one is not free to act without permission, the result is
that one is not free. Therefore if article 21 ( 1)( d) of the Constitution, 1992
gives an unqualified freedom to hold demonstration but section 8 of
NRCD 68 requires one to obtain a permit before the enjoyment of this
freedom, then clearly, the latter law does conflict with the Constitution,
1992 and is inconsistent with it, and by virtue of article 1(2) of the
Constitution, 1992 would be null and void. If it were not so, the
inal ienable fundemental human right granted under article 21 (1)( d) of the
Constitution, 1992 would be interfered with and in certain cases would
even be completely taken away by operation of section 8 of NRCD 68
contrary to the stipulation in the Constitution, 1992 that the fundamental
human rights cannot be derogated from or taken away from any person.
Under article 12(2) of the Constitution, 1992 every person in Ghana
shall be entitled to'enjoY'his or her fundamental human rights except that
the rights of others should be respected and regard must be had for the
public interest in the enjoyment of these rights.
The impoltance of human rights as stated in the Committee of
Experts' Report on the Proposals for a Draft Constitution of Ghana at
p 62, para 128 is as follows:
"128. The National Comlnission for Democracy Report leaves no
doubt that Ghanaians attach great importance to hUlnan rights.
Human rights are universally regarded as inalienable and constitute
the birthright of the individual as a hUlnan being. Therefore, no
person may be deprived of his or her human rights."

At P 64, para 136 it is stated further:

... 136. Despite the division of human rights into the above
categories, a close inspection will reveal the interdependence of all
human rights. Thus, for example, the United Nations Declaration
on the Right to Development ( 1986) states:
'All human rights and fundamental freedoms are indivisible
~nd interdependent; equal attention and urgent consideration
should be given to the implementation, promotion and
482 Ghana Law Reports [1993-94) 2 GLR

protection of civi l. pol itical, econom ic. social and cultural

rights. '
In the last resort, they are all exercisable within a societal context
and impose obligations on the state and its agencies as well as on
the individual not to derogate from these rights and freedoms:'

This means that fundamental human rights are inalienable and can
neither be derogated from or taken away by anyone or authority
\vhatsoever. I ndced, as stated in article 12( I ) of the Constitution, 1992
the fundamental human rights and freedoms must be respected by the
executive, legislature and judiciary and all other organs of government
and its agencies and shall be enforceable by the courts.
Th is court is therefore not perm itted to give an interpretation wh ich
seeks to tamper in any way with the fundamental human rights but rather
to see that they are respected and enforced. It is my view that since
section 8 ofNRCD 68 conflicts with article 21 (1 )(d) of the Constitution,
1992 it is null and void and so are sections 7, 12 and 13 ofNRCD 68, and
I so hold.
The defendants' position is that sections 7,8, 12 and 13 ofNRCD 68
are reasonable and lawful restrictions on the freedom of assembly
granted under article 21 ( I )( d) of the Constitution, 1992~ no doubt relying
on the provision of article 21 (4 ) (c) of the Constitution, 1992 wh ;ch says
that:
"(4) Nothing in, or done under the authority of, a law shall be held
to be inconsistent with, or in contravention of, this article to the
extent that the law in question makes provision- ...
(c) for the imposition of restrictions that are reasonably
required in the interest of defence, public safety, public
health or the running of essential services, on the movement
or residence within Ghana of any person or persons
generally, or any class of persons~ ...
except so far as that provision or, as the case may be, the thing done
under the authority of that law is shown not to be reasonably
justifiable in terms of the spririt of this Constitution."

But NRCD 68, ss 7, 8, 12 and 13 being null and void, cannot be said to
fall within the proviso to article 21 (4) of the Constitution, 1992 and
cannot even be considered as existing laws, much less laws which are
reasonably justifiable in terms of the spirit of the Constitutiola, 1992.
 [1993-94] 2 GLR NPP v IGP (Bamford-Addo .JSC) 483

Exalnples of such laws as envisaged by alticle 21 (4) of the Constitution~

1992 are those referred to by the experts in their report (supra) at p 157~
para 73:
. ~ 157. The fundamental freedoms mentioned above should be
exercised sl1~iect to the laws of the land~ in so far as such law
imposes reasonable restrictions on the exercise of the rights and
freedoms conferred by this Constitution, restrictions which are
necessary in a democratic society and are required in the interests
of the sovereignty and integrity of Ghana, national security.. public
order, decency or morality, or in relation to contempt of Court,
defamation or incitement to an offence.'~

These laws include the criminal laws of the land. It means that even
where a person has the right to exercise his or her fundamental human
rights freely without preconditions, he or she must exercise those rights
subject to the respect for the rights and freedoms of others and in the
public interest. That is why at1icle 41 of the Constitution~ 1992 provides
that:-
~~41. The exercise and enjoyment of rights and freedoms is
inseperable from the performance of duties and obligations, and
accordingly~ it shall be the duty of every cititzen-
(d) to respect the rights, freedoms and legitimate interests of
others~ and generally to refrain from doing acts detrimental
to the welfare of other persons ...
(i) to co-operate with lawful agencies in the maintenance
of law and order."

The sun1 total of these various provisions in the Constitution~ 1992 is

that human rights are inalienable; being the birthright of the individual
as a human being, they cannot be derogated from nor can anyone deprive
one of his or her human rights. Therefore these rights are to be enjoyed
freely without any impediments or preconditions, but in the enjoYlnent
of these rights, regard must be had for the rights of others and for the
public interest. The public interest demands that the police maintain law
and order in society. Therefore the police will continue to maintain law
and order and to ensure that there are no infringements of the criminal
laws of the land by those excercising their rights, eg to hold public
delnonstratiolls. The Deputy Attorney General appearing for the
, defendants expressed concern that a decision in favour of the plaintiff in
this case would make the work of the police more difficult. That may be
484 Ghana Law Reports [1993-94] 2 GLR

so but this is the price we have to pay for democracy and constitutional
order. The police like any other organ of government are required to
operate within the four walls of the Constitution~ 1992 but with their
wide criJ11e preventing powers~ I believe they can rise up to the occasion
and satisfactori Iy discharge their duties within, the constitutional Iilll its
despite any difficulties.
In any case~ article 200 of the Constitution~ 1992 seems to have
envisaged and taken care of any difficulties the police might encounter
in having to work under a new constitutional order. It made provision for
the police to be equipped and maintained to perform it's traditional role
of l11aintaining law nad order. It is hoped that this provision would be
complied with by the authorities concerned, to enable our hardworking
police discll(~rge efficiently their onerous duty of maintaining law and
order in the society.
It is for the above reasons that I also agree with my brothers before
me that the plaintiff is entitled to the declaration sought in the writ.

Charles Hayfron-Benjamin JSC. On 3 February 1993 the pol ice in

Sekondi in the Western Region granted the plaintiff a permit to hold a
rally on 6 February 1993 in Sekondi. However, on 5 February 1993 the
police withdrew the permit and prohibited the holding of the rally. Yet
again on 16 February 1993 the plaintiff in conjunction with other
political parties embarked on a peaceful delnonstration in Accra "to
protest against the 1993 budget of tile Government of Ghana.'~
This "peaceful demonstration" was~ according to the plaintifT~
violently broken up by the police and some of those taking part in the
delnonstration were arrested and charged before the Circuit Court~ Accra
with denl0nstrating without a pennit and failing to disperse contrary to
sections 8, 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68).
The plaintiff complained further that, on 17 February 1993 the Kyebi
Police in the Eastern Region granted the plaintiff a permit to hold a rally
at Kyebi "to conllnemorate the 28th anniversary of the tragic death of Dr
Joseph Boakye Danquah." On the day when the rally was to be held., the
police withdrew the permit and prohibited the holding of the rally.
The plaintiff therefore fiied a writ in this court wherein it claiJ11ed:
"A declaration that-
(a) Section 7 of the Public Order Decree, 1972 (NRCD 68)
which gives the Minister for the Interior the power to
prohibit the holding of public l11eetings or processions for
a period in a specified area; section 8 of the said Decreee
 [1993-94] 2 OLR NPP v lOP (C Hayti'on-Benjamin JSC) 485

which provides that the holding of all public processions

and meetings and the public celebration of any traditional
custom shall be subject to the obtention of prior police
permission; section 12«(.') of the said Decree which gives to
a superior police officer the power to stop or disperse such
a procession or meeting~ and section 13 of the said Decree
which makes it an offence to hold such processions,
meetings and public celebrations without such penaission,
are inconsistent with and a contravention of the Consti-
tution, 1992 especially article 21 ( 1)( d) thereof, and are
therefore null, void and unenforceable'.
(b) Under the Constitution, 1992 no permission is required of
the police or any other authority for the holding of a rally or
demonstration or procession or the public celebration of
any traditional custom by any person, group or organi-
sation."

By his statement of case, the defendant while not specifically

adlllitting the allegation that the plaintiff and other members of some
other political parties were embarked on a '~peaceful demonstration
through the streets of Accra on 16 February 1993", nevertheless denied
that he had violently broken up the demonstration. I n the vie\" of the
defendant, the procession was "an unlawful demonstration." The
defendant, however, adm itted the other two actions alleged in the
plaintiff's statement of case and claimed that the actions complained of
were lawful exercise of authority within the intendments of the Public
Order Decree, 1972 (NRCD 68). The defendants stated their case thus:
"(9) The defendant admits paragraphs (9) and (10) of the statement
of the plaintiff's case.
(10) The defendant says further that the allegations contained in
paragraphs (9) and (10) of the statement of the plaintiff's case
were the result of a lawful and reasonable exercise of authority
vested in the police by the Public Order Decree, 1972 (NRCD
68). .
(1 1) The defendant also says in fmiher answer to paragraphs (9) and
(10) of the statement of the plaintiff's case that the said
paragraphs are irrelevant to the present action."

There \vas a clear misunderstanding of the procedural rules of this

court as to the filing of the memorandum of issues. The parties separately
486 Ghana Law Reports [1993-94] 2 GLR

filed what they termed agreed issues even though the same were not
signed by each other's counsel. However. paragraph (6) of the plaintiffs
menlorandum of issues were in identical terms with the single issue
raised by the defendant in his memorandum of issues. This issue was in
nly respectful opinion the kernel of the matters in controversy hetween
the parties. It reads:
"Whether or not sections 7. 8, 12(c) and 13 of the Public Order
Decree, 1972 (NRCD 68) are inconsistent with and a contravention
of the Constitution, 1992, particularly article 2 J (1) (d) thereof Hnd
are therefore null, void and unenforceable."
I n other words, whether (l) a ministerial .. police or other perm it is
required for the exercise of any public activity envisaged by sections 7
and 8 of N RCD 68; (2) the superior police officer or other authorised
public officer may stop and disperse citizens taking part in any such
, public activity as is envisaged by sections 7 and 8 ofNRCD 68~ and (3)
citizens may be punished for taking part in any such public activity.
For the purpose of this case the first provisions of the Constitution,
1992 which need to be set out are alticle 21 (I )(d) and (4)(a), (b) and (c):
~'21.(1) All persons shall have the right to-- ...
(d) freedom of assembly including freedom to take part in
processions and demonstrations ...
(4) Nothing in .. or done under the authority of. a law shall be
held to be inconsistent with. or in contravention of.. this mticle to the
extent that the law in question makes provision-
(a) for the imposition of restrictions by order ofa court, that
are required in the interest of defence, public safety or
public order, on the movement or residence within
Ghana of any preson; or·
(b) for the itnposition of restrictions, by order of a court. on
the movement or residence within Ghana of any person
either as a result of his having been found guilty of a
crim inal offence under the la\vs of Ghana or for the
purposes of ensuring that he appears before a court at a
later date for trial for a criminal offence or for
proceedings relating to his extradition or lawful removal
froin ~(Jh~\na: or
(c) for the iJnposition of restrictions that are reasonably
req'':Ii'~e(l in the interest of defence, public safety.. public
, health or the running of essential services, on the
 [1993-94] 2 GLR NPP v IGP (C Hayfron-Benjamin JSC) 487

Inovement or residence within Ghana of any person or

persons generally~ of any class of persons."

Before coming to NRCD 68 itself, some account should be given of

the history leading up to it. This court cannot be insensible to the fact of
the colonial status from which we have evolved into a nation; nor can we
be oblivious of the fact that while in the main we have received the laws
from o~lr British colonial masters-the comnlon law-these laws were
often qualified by Ordinances and regulations designed to remind liS of
our su~ject status and to ensure that our colonialluasters had the peace
and quiet necessary to enable them live among us and rule liS.
In his learned treatise on The Constitutional Law o/Great Britain and
Ihe C0l1lnl011li 1ealth (2nd ed), Hood Phillips cites frOin Professor Dicey's
c1asssic treatise on Law 0/ the Constitution (9th ed) wherein the latter
author states the general principle of English law respecting the right of
assenlbling and processing as follows:
HThe right of asselnbling is nothing more than a result of the view
taken by the Courts as to individual liberty of person and individual
Iiberty of speech. There is no special law allowing A, Band C to
meet together either in the open air or elsewhere for a lawful
purpose, but the right of A to go where he pleases so that he does
not commit a trespass, and to say what he likes to B so that his talk
is not libellous or seditious, the right of B to do the like, and the
existence of the salue rights ofC, 0, E and F and so on ad infinitUln
lead to the consequence that A, B, C and 0 and a thousand or ten
thousand other persons, may (as a general rule) nleet together in any
p lace where otherwise they each have a right to be for a lawfu I
pu.rpose and in a lawful manner."

Hood Phillips continues with his own observation at that:

HThere is a general right to promote or take part in a public Illeeting
on private premises~ and to pronlote or take part in a public
procession, subject in either case to the infringenlent of particular
legal ru les."

Within our Illunicipality- and in colonial tilnes,- ollr courts have

not been bound in the construction of the Criminal Code by any judicial
decision or opinion on the construction of any other statute, or of the
cOlnmon law a~ to the definition of any offence, or of any element of any
offence. The distinction between common law offences and statutory
488 Ghana Law Reports [1993-941 2 GLR

offences therefore does not exist in our criminal jurisprudence.

The first Criminal Code-Ordinance No 12 of 1892- was passed on
31 October 1892 and included such common law offences as sedition.
unlawful assembly, rout and riot. By various later arrangements in the
order in which it stood in the statute book the Criminal Code became
Ordinance No 50 of 1952 and was until 1960 known as ··Cap 9." On a
close examination of Cap 9. it will be found that the nearest mention of
a '·perm it" is contained in section 142( 10) where it is stated that
whoever:
"( 10) In any town, without a licence ill wri1il1~ from the Governor
or a District Commissioner, beats or plays any drum. gong.
tOI11-tom, or other similar instrument of music behveen eight
o'clock at night and six in the morning"

shal1 be'liable to a fine of forty shillings. (The emphasis is mine.)

The concept of a perm it, however, first appears in 1926 in pursuance
of authority granted to the Governor by the Police Force Ordinance, 1922
(Cap 37). By virtue of the powers granted the Governor under Cap 37 the
'Publ ic Meetings and Processions Regulations, 1926 (No 10 or 1926)
were made on 26 April 1926. Section 2 of the regulations states:
"2. Any person who desires to hold or form any meeting or
procession in a puhlic way shall first apply to a pol ice officer not
below the rank of Assistant Commissioner of Police, or, if there be
no such officer, then to the District Commissioner, for permission
to do so~ and, if such police officer or District Commissioner is
satisfied that the meeting or procession is not Iikely to cause a
breach of peace. he may issue a permit authorising the meeting or
procession, and may in such permit prescribe any special
conditions, lim itations, or restrictions to be observed with respect
thereto."

(The emphasis is mine.)

Such was the state of the law on public meetings and processions
until ] 961 when the Public Order Act, 1961 (Act 58) was passed and
received the presidential assent on 29 May ·1961. Section 6 thereof was
in identical terms with section 2 of the regulations of 1926 set Ollt above.
There were, however, three important differences between the !\tvo
sections. The long title of Act 58 was:
"~N ACT to replace, with minor modifications, enactments relating
[1993-94] 2 OLR NPP v lOP (C Hayfron-Belljamin .JSC) 489

to the control of the procession or carrying of arms~ the holding of

public meetings and processions and the imposition of curfews.'~

First, whereas the regulations mentioned "public way", Act 58 mentioned

"public place." The interpretation section of Act 58 did not provide any
definition of a ·'public place." Cap 9 however refers to the definition of
"public place" and ·'public way" as bearing the same meaning as are
contained in the Criminal Code. Under the Code~ the expression ··public
place'~ is all embracing and includes a "public way." But a "public way'~
is defined as including: ·'any highway~ market place, lorry park, square,
street, bridge~ or other way which is lawfully used by the public.'~
Yet again~ the application of the regulations was limited to the towns
mentioned in the Schedule as amended by the Public Meetings and
Processions (No 2) Regulations, 1954 (LN 415) made under Cap 37. I do
not think that it was for nothing that the expression "public way'" was
used in the regulations. The regulations were only applicable to the
towns named in the Schedule. As I understand it, the regulatir.ns were
made to control traftic, the assembling and procession of rival parades
at the same place and time and to give the authorities advance notice to
afford them proper opportunity for effe.ctive policing.
Secondly, Act 58 effectively revoked LN 415. Consequently~ Act 58
applied to the whole country.
Thirdly, Act 58 came into force aner the promulgation of the
Constitution, 1960. The relevant provision in the Constitution, 1960
which appeared to assure the citizen of "the right to move and assemble
without hindrance" was contained in article 13( I). If indeed there was
such a "right", then section 6 of Act 58 was clearly inconsistellt with the
Constitution, 1960 and was therefore null, void and unenforceable.
But in the case of Re Akoto [1961] GLR CPt II) 523, SC the Suprelne
COUl1 held otherwise. Re Akoto (supra) is often considered as a case on
the validity of the Preventive Detention Act, 1958 (No 17 of 1958).
What many fai I to appreciate is that al1icle 13{ I) of the Constitution,
1960 contained many provisions which in later Constitutions have been
expanded into substantive articles.
I n the Re Akoto case (supra), learned counsel for the appellants
sublnitted, inter alia at 533:
"3. That the Preventive Detention Act, 1958, which was not
passed upon a declaration of emergency or as a restriction necessary
for preserving public order, morality or health, but which
nevertheless placed a penal enactment in the hands of the President
490 Ghana Law Reports [1993-941 2 GLR

to discrinlinate against Ghanaians. namely to arrest and detain any

Ghanaian and to imprison him for at least five years and thus
deprive him of his freedom of speech. or of the right to move and
asseillble without hindrance. or of the right of access to the courts
of law. constitutes a direct violation of the Constitution of the
Republic of Ghana and is wholly invalid and void."

The clear answer given by their lordships is stated at 533-534 and it

reads:
'~AI] the grounds relied upon appear to be based upon Article 13
of the Constitution. It is contended that the Preventive Detention
Act is inval id because it is repugnant to the Constitution of the
Republic of Ghana, 1960, as Article 13( 1) requ ires the President
upon assumption of office to declare his adherence to certain
fundamental principles which are:-
. 'That the powers of Government spring from the will of the
people and should be exercised in accordance therewith.
That freedom and justice should be honoured and maintained.
That the union of Africa should be striven for by every lavvful
means and when attained, should be faithfully preserved ..
That the Independence of Ghana should not be surrendered or
diminished on any grounds other than the furtherance of African
unity.
That no person should suffer discrimination on ground~ of sex,
race, tribe, religion or political belief.
That Chieftancy in Ghana should be guaranteed and preserved.
That every citizen of Ghana should receive his fair share of the
produce yielded by the development of the country.
That subject to such restrictions as may be necessary for
preserving public order, morality or health, no person should be
deprived of freedom of religion, of speech, of the right to move and
assel11ble without hindrance or of the right of access to COlll1s of
law.'

This contention, hovvever, is based on a Inisconceptiol1 of the intent,

purpose and effect of AI1icie 13( 1) the provisions of which are, in
our view, similar to the Coronation Oath taken by the Queen of
England during the Coronation Service. I n the one case the
President is required to make a solenln declaration, in the other the
Queen is required to take a solemn oath. Neither the oath nor the
[1993-94] 2 GLR NPP v IGP (C Hayfron-Benjamin JSC) 491

declaration can be said to have a statutory effect of an enactment of

Pari iament. The suggestion that the declarations made by the
President on assumption of office constitute a 'Bill of Rights' in the
sense in which the expression is understood under the Constitution
of the United States of America is therefore untenable."

I have not been able to resist setting down the whole of article 13( 1)
of the Constitution, 1960 as stated by their lordships in the Akoto case
(supra), the better to demonstrate the extent to which that judgment
undermined the very fabric of that Constitution and literally pushed aside
certain principles and fundamental human and civil rights which have
becOJne the bulwark of the Constitution, 1992. Act 58 thus lost none of
its operational efficacy and the consent of the minister or "permit" from
the police remained a necessary prequisite for the holding or fcrmation
of 4'any Ineeting or processsion in a public place." The Public Order
(Amendment) Act, 1963 (Act 165) restated section 16 of Act 58 and
extended the permit requirement to the celebration of traditional customs
and the display of asafo company flags.
NRCD 68, palis of which form the basis of the plaintiff's complaint
in the present case, is in essence a consolidation of the previous public
order legislations and the public meetings and processions~regulations.
Sections 7 and 8 ofNRCD 68 read:
"7.( I) The Commissioner may by executive instrUillent prohibit
for a specified time (not being more than.one week) in a specified
place or area the holding of a public Ineeting or procession and any
nleeting or procession held in contravention of any such instrument
shall be unlawful.
(2) It shall not be lawful to hold a publicl11eeting or public
procession within five hundred yards of-
(a) any meeting place of the National Redemption Co-
uncil, the Executive Councilor any Comnliltee the-
reot~
(b) any official residence of a meillber of the National
Redemption Council or the Executive Council,
(c) any office or official residence of a Regional COI11-
111 issioner, or
(d) any pOJi or airport,
except with the written consent of the Comnlissioner or any person
authorised by him.
8.( 1) Any person who intends-
 •

492 Ghana Law Reports [199j~94'1 2 GLR

(a) to hold or form any meeting or procession~ or

(b) to celebrate any traditional custom,
in any public place sh~)11 first apply to a superior police ofticcr for
perm ission to do so.
(2) The superior police officer shall consider the application
fairly and impartially, and shall issue a permit authorising the
meeting, procession or celebration unless he is satisfied upon
reasonable grounds that it is likely to cause a breach of the peace or
to be prejudicial to national security.
(3) The superior police officer may prescribe in the perm it
such conditions and restrictions as are reasonably required-
(a) in the interests of defence, public order., public
safety., public morality, public health or the running
of essential services; or
(b) to protect the rights and freedoms of other persons.
(4) Where an officer refuses to grant a permit under this
section he shall inform the applicant in writing of the reasons for his
refusal.'"

It is evident that the public order laws in one form or the other have
existed during the period of all four Republican Constitutions which we
have had iri this country. Yet, it seems it is only now that a challenge has
been raised as to their constitutionality. The answers are clear. As I
have already stated, In re Akoto (supra) denuded article 13( 1) of the
Constitution, 1960 of any constitutional force. Next, the relevant articles
in the Constitutions, 1969 and 1979 did not confer the right to process.
The right of assembly and association was "for the protection of his [the
citizen's ] interest." Article 23( 1) of the Constitution, 1969 and article
29( 1) of the Constitution, 1979 are in exactly similar language at~d read:
'"29.( 1) No person shall be hindered in the enjoyment of his
freedom of assembly and association, that is to say, his right to
assemble freely and associate with other persons and in particular
to form or belong to trade unions or other associations, national and
international, for the protection of his interests."

It is clear from the above article that the Constitutions, 1969 and 1979
only granted limited freedoms. Further, there was no constitution,al right
to form or hold a procession or demonstration in a public place. As to
the right to hold or form a procession, I do not think article 24( 1) of the
Constitution, 1969 or article 30( 1) of the Constitution, 1979 011 the
 I,

[1993-94] 2 GLR NPP v IGP (C l-Iayfron-Benjamin JSC) 493

freedom of movement is the same as the freedom to hold and form

processions. Indeed. I am fOltified in my view by the manner in which
these freedoms are treated in the Constitution. 1992. The freedom of
association as envisaged in the former Constitutions is c1ear'ly stated in
article 21 (I )(e) of the Constitution, 1992 while the corresponding
freedom of movement is stated in al1icle 21 (t )(g) of the Constitution,
1992. The matter in issue between the parties before us concerns article
21 (I )(d) of the Constitution, 1992 which has been set out above and
vvhether the allegedly offending sections ofNRCD 68 are inconsistent
with it and therefore null, void and unenforceable.
In argument before us the Deputy Attorney-General, Mr Martin
Amidu. referred to the case of Tuffuory Attorney-General [1980] GLR
637, CA sitting as SC and the dictum of Sowah JSC (as he then was) at
661-662 and submitted that this court must be guided by the intentions
of the framers of the Constitution, 1992. I agree with him.
Before the framers of the Constituion, 1992 embarked upon the
exercise of writing that Constitution, the desires and views of the citizens
on their constitutional expectations had been collated by the National
Commission on Democracy. The commission's report formed the basis
of the recommendations of the committee of experts. The experts
adopted the Directive Principles of State Policy as first enunciated in the
Constitution, 1979. The expel1s acknowledged that they had used that
chapter in the Constitution, 1979 "as a basis for its deliberation on this
subject."
In the Report of the Committee of Experts, p 49, para 94 it is stated:
"94. The NCO report speaks of the need to include in the new
Constitution 'core principles around which national political, social
and economic life will revolve.' This is precisely what the Directive
Principles of State Policy seeks to do. Against the background of
the achievements and failings o{our post-independence experience,
and our aspirations tor the future as a people, the Principles attempt
to set the stage for the enunciation of political, civil, economic and
social rights of our people. They may thus be regarded as spell ing
out in broad strokes the spirit or conscience of the Constitution."

(The emphasis is mine.) The experts recognised that the directive

principles were not justiciable. Neverthesless, they gave convincing
reasons for including them in the Constitution, 1992 and concluded at p
49, para 95 that their usefulness lies in the fact that "they provide goals
for legislative programmes and a guide for judicial interpretation." For
494 Ghana Law Reports [1993-94! 2 G LR

the first time there was a recommendation for the inclusion of political
objectives in the Constitution, 1992 and at p 50, para 100 of its report.
the committee of experts suggested that: HThe State should cultivate
among all Ghanaians respect for fundamental human rights and for the
dignity of the human person."
The framers of the Constitution, 1992 having adopted the directive
principles stated in article 34( I) of the Constitution, 1992 the scope for
their implementation thus:
"34. (1) The Directive Principles of State Policy contained in this
Chapter shall guide all citizens, Parliament, the President. the
Judiciary, the Council of State, the Cabinet, political parties and
other bodies and persons in applying or interpreting this
Constitution or any other law and in taking and implementing any
policy decisions. for the establishment of ajust and free society."

The political objectives were stated in article 35 of the Constitution.

1992. In the main, article 35 of the Constitution, 1992 sufiiciently
reflects the recommendations of the committee of experts. This court-
and indeed all courts-is therefore entitled to take into consideration
political matters in ~~applying or interpreting this Constitution." I do not.
however, think it appropriate to dilate on political matters in the
consideration of this opinion. Suffice it to say that this court cannot
ignore the fact that at the close of this second millennium of the modern
era the attainment and enjoyment of fundamental human rights have
become prime instruments of international relations. I n rendering th is
opinion therefore. we must take into serious consideration the struggles,
exploits and demands of the oppressed and struggling peoples in Africa,
Anlerica and elsewhere led by such men as Nelson Mandela and Dr
Martin Luther King, Jnr in their fight for fundanlental human and civil
rights. Judging by the frequency with which the African National
Congress and other political parties hold rallies and delnonstrations in
South Africa, the police would be very hard put to it, if they were to issue
a permit for any such rally or demonstration to be held. I do not believe
a perm it is required in that country to enable any person or drouP of
persons to assemble, process or demonstrate. We cannnot wish for these
others, anything more than we wish for ourselves. In~eed. the very
constitutional provisions-article 21 (I )(d) of the Constitution, 1992-
wh ich has provoked th is litigation, is firm Iy rooted in chapter 5 of our
Constitution, 1992 which deals with fundamental hU111an rights and
freedOiTIs. Within our municipality I do not think that I can contelnplate
11993-94] 2 GLR NPP v IGP (C Hayfro.n-Benjamin .ISC) 495

a beller statement of our national attitude on fundamental human rights

than the editorial comment in the state-owned national weekly., The
AJirror of Saturday, 10 July 1993., parts of which read:
"The problem of human rights violations has become a disturbing
source of concern to all peace-loving people of the ,vorld_
For a long time now., governments of various countries have
been accused of violating the rights of their peoples by way of
trmnpling upon their fundamental human rights with impunity_
What is more, these governments do not take cognisance of the
f~lct that every human being ,vas born into the world to enjoy
maximum tj-eedom - tj-edom to associate, of movement, and indeed
freedom to express one's views freely without looking over one's
shoulders to see whether there is the big stick in ,vaiting_
Looking seriously at the human rights record of some
governments, it is sad to conclude that the freedoms of their peoples
are toyed with, if that is the only means to keep them in perpetual
po,ver.
A lot has been said about the violation of human rights but mere
talks on human rights violation and denial offundamental tj-eedoms
will be totally menaingless unless concrete measures are put in
place to enforce the laws and prevent occurrences.
The absence of civil and political rights certainly creates a
sordid situation which enables authoritarian and authocratic regimes
to blossom and thus take the opposite direction as far as human right
s are concerned.
It is in this regard that [THE MIRROR] wishes to urge all
governments to realise that the people they govern should he made
to enjoy all the God-given freedoms they deserve_
The Constitution of the Fourth Republic provides for the strict
adherence of human rights and it is anticipated that every etfort
nlust be made to uphold the dignity of man in the interest of peace
and stabil ity:'

The "spirit or conscience" of the Constitution. 1992 as epitomised by the

above cited comment must therefore be our guide in considering this
opinion.
Next, it was submitted by the Deputy Attorney-General that the
Constitution, 1992 has reserved to the sovereign authority the right to
provide for order. He referred to article 21 (4) (c) of the Constitution,
1992 as being the constitutional force behind the submission. Article
496 Ghana Law Reports [1993-.941 2 ClLR

21(4)(c) of the Constitution, 1992 has been stated supra in extenso and
therefore there is no need to repeat it. The submission. however. cannot
be right. A brief comparison between at1icIe 21(4)(a) and 21(4)(c) of the
Constitution, 1992 shows that the expression "public order" does not
oCClir in the latter. By itself the expression "'public safety" is used in
contradistinction to the expression "'public order:' True, in accordance
with the canons of interpretation sometimes "or" can be interpreted to
mean "and." In Green v Premier G/Yl1r/1011wy Slate Co Ltd r 1928] 1 KI3
561 at 568, CA is stated per Scrutton LJ:
'~You do sometimes read 'or' as 'and' in a statute ... But you do
not do it unless YOll are obliged. because 'or' does not generally
menl1 ~and' Hnd ~and' does not generally mean ·or."·

In my respectful opinion, I am not obliged to read in the context or

article 21 of the Constitution, 1992 the expression '~or" in subsection
(4)(a) as "and." First. in article 21 (4)(a) the imposition of the
restrictions as they apply to article 21 (d) of the Constitution. 1992 is hy
the court, while in al1icle 21(4)(c) whoever is imposing the restrictions
is required to exercise his discretion-that is to say. the "'restrictions are
reasonably required." Secondly, article 21 (4 )(a) provides for the
imposition of prior restraint by the court on the exercise of the
fundamental freedoms while article 21 (4)(c) is akin to the emergency
powers which. short of a presidential declaration of a state of emergency.
may be exercised under the authority of any law made to cover the
situations and the persons mentioned in that subsection-see article 3 1(9)
of the Constitution, 1992. Clearly, article 2 I (4)(c) cannot be invoked in
aid of a valid exercise of authority under NRCD 68.
Again it was submitted on behalf of the defendant that sections 7. 8.
12(c) and 13 of NRCD 68 constitute reasonable restrictions as are
required by article 21 of the Constitution, 1992 and that the said ~;ections
are ill accord with the spirit of the Constitution, 1992.
It will be useful to deal first with the provisions of section i 2,:1) of
NRCD 68 and then with the provisions of section 13 thereof as it is clear
that if the provisions of sections 7 and 8 of NRCD 68 are unconsti-
tutional, then no meeting or procession can be held or formed in
contravention of secton 12(a) ofNRCD 68 which confers on the police
officer or the authorised public officer unfettered powers, and without
ascribing any reasons therefor, to "stop and cause to be dispersed any
meetings or processions in any public place." Such absolute povver
conferred upon a police or administrative officer or a Minister of State
[1993-94] 2 GLR NPP v IGP (C I-Iayfron-Benjamin JSC) 497

to abridge the fundamental human rights of the citizen is

u nconstitutiona I.
When citizens meet or process in a public place in pursuance of their
constitutional right to hold meetings and form processions they are only
subject to the criminal law which for the present is contained in our
Criminal Code~ 1960 (Act 29). In Republic v Kambey [1991] 1 GLR
235~ SC the accused persons were convicted of murder and sentenced to
death. They appealed against their convictions to the Court of Appeal
which allowed their appeal. The State then appealed against the
judgment of the C01ll1 of Appeal to this court. In this COlIl1~ one of the
issues raised at 243 was:
whether by their conduct the Duusi chief and his subjects had
44 • • •

assembled with intent to commit an offence~ and if not, \vhether

being assembled to collect dawadawa fruits which may be taken as
a common purpose they so conducted themselves as to cause
persons in the neighbourhood reasonably to fear that the persons so
assembled would commit a breach of the peace."

My learned and respected brother Aikins JSC writing for the COUl1 in
considering the issue of the quality of such an assembly referred to
sections 202. 202A( I ) and 201 ( 1) of Act 29 and said at 245:
"Such an assembly to be unlawful must be for purposes torbidden
by law or with intent to carry out their common purpose in stich a
manner as to endanger public peace. Even if having assembled
there for a lawful purpose, and .with no intention of carring it out
unlawfully, they had knowledge that their assembly would be
opposed. and had good reason to suppose that a breach of the peace
would be committed by the first prosecution witness and others who
opposed it, they \vould not be guilty of an unlawful assembly."

Aikins JSC cited the English case of Beally v Gillbank\' (1882) 9 QBD
308~ DC in suppol1 of the above statement and for emphasis on the right
of citizens to assemble in public for a lawful purpose.
This leads me to a consideration of section 13(a) of NRCD 68.
Certainly if a meeting. procession or demonstration is being held
lawfully and nothing done by persons attending stich a meeting or
fonning the procession or demonstration contravenes the criminal law.,
such persons shall not be guilty under section 13(a) ofNRCD 68. Beatty
v Gillbal1k~' (supra) is illustrative of the scope of the freedom articulated
by article 21 (d) of the Constitution. 1992. At 314 of the report of that
498 Ghana Law Reports [1993-941 2 GLR

case, Field J rightly said:

"What has happened here is that an unlawful organization has
assumed to itself the right to prevent the appellants and others from
lawfully assembling together, and the finding of the justices
amounts to this, that a man may be convicted for doing a Icl\vful act
if he knows that his doing it may cause another to do an unlawful
act. There is no authority for such a proposition, and the question
of the justices whether the facts stated in the case constituted the
offence chargd in the information Inust therefore be answered in the
negative."

By its writ of sumnlons the plaintiff sought declarations concerning

the constitutionality of sections 12(c) and 13 of NRCD 68. The orders
which this court made on 22 July 1993, ho\vever affect only sections
12(a) and 13(a) of NRCD 68. [n my respectful opinion, \ve could not
grant a declaration in favour of the plaintiff affecting section 12(c) of
NRCD 68. It would have been irresponsible for a court to order in the
light of section 12(c) ofNRCD 68 which deals with the po\vers of the
police and other authorised public officers to stop and disperse unlawful
assemblies, that the police should renlain helpless on-lookers in a
situation in which a "breach of the peace has taken or is taking place or
is considered by the officer as likely to take place." It is, however.
obvious that the subsection which the plaintiff sought to attack was
subsection 12(a) ofNRCD 68 which is the corresponding po\ver vested
in the police or other authorised public authority \vith respect to breaches
of sections 7 and 8 ofNRCD 68. It will therefore be anlended to read
section 12(a) in place of section 12(c) ofNRCD 68 . The relief affecting
the whole of section 13 ofNRCD 68 was also restricted to section 13(0)
of NRCD 68 as section J3(b) of NRCD 68 had no relevance to any
activity as was envisaged by sections 7 and 8 ofNRCD 68. In any case,
the plaintiff made no complaint concerning the provisions contained in
sections 10 and II ofNRCD 68.
One little difficulty however arises. Section 8(1 )(b) of NRCD 68
refers to the celebration of a "traditional custom" while section IO(2)(a)
ofNRCD 68 speaks of the celebration of "any cllstom." It seenlS to nle
that "traditional customs" are such notorious affairs that we can take
judicial notice of them. These come under section 8 ofNRCD 68 and
wiJI thus be affected by the unconstitutionality of that section. On the
other hand such custOlns as Inay be prohibited under section 1O(2)(a) of
NRCD 68 are those cllstoms which frOln the intendnlents of that section
[1993-94] 2 GLR NPP v IGP (C Hayfron-Benjamin JSC) 499

are anti-social, degenerative of morals or involve lewd and profane

singing and dancing in connection with fetish or other worship Qr
activity.
Section 7 ofNRCD 68 has been stated supra and need not be repeated
here. The essential feature of that section is that the commissioner (now
Minister for the Interior) may by executive instrument prohibit for not
more than one week the holding of a public meeting or procession in a
specified place. Indeed, in their respective statements of case none of the
parties suggested or submitted that an executive instrument had been
passed by the minister in respect of any of the incidents complained of.
However, the defendant made two averments which brought section 7 of
N RCD 68 into issue. First, the defendant averred that sections 7, 8, 12(a)
and 13 of NRCD 68 were "reasonable and lawful restrictions on the
freedom stipulated in article 21 (d) of the Constitution, 1992 by virtue of
article 21(4) of the Constitution, 1992." Next, the defendant traversed
generally Hevery allegation of fact and law contained in the plaintiff's
statement of case." The issue joined by the parties consequently required
this cOUl1 to determine, inter alia, whether section 7 \¥as inconsistent with
and a contravention of the Constitution, 1992. Since the plaintif~ was
seeking a declaration to that effect against which the defendant was
contesting, and there was no challenge as to whether the plaintiff had
locus standi in the mattter, this court had jurisdiction to entertain that
issue.
The generality of section 7 ofNRCD 68 is to create a prior restraint
on the freedom of the citizen to hold a meeting or form a procession and
in terms of al1icle 21 (d) of the Constitution, 1992 also to demonstrate in
a public place. A prior restraint is an injunction prohibiting the 1i-eedom
of assembly, procession or demonstration, whether such injunction or
prohibition is imposed by statute or by an order of the court. It may be
said that in this case, the prohibition or injunction may not be for more
than oile week. But then neither the section nor the whole ofNRCD 68
assures that the prohibiting executive instrument cannot be repeated.
Consequently, \¥hen sllch a power is exercised by the minister it becomes
a clog on the citizen's freedom to assemble, process and demonstrate.
In KUI1Z v Nell' York. 340 US 290 (1951) the US Supreme Coun said:
"It is noteworthy that there is no mention in the ordinance of
reasons for which such a permit application can be refused. This
interpretation allows the police commissioner, an admini~trative
official. to exercise discretion in denying subsequent perm it
applications on the basis of his interpretation, at that time, of what
500 Ghana Law Reports [ 1993-(4) 2 (j LR

is deemed to be conduct condemned by the ordinance. \}tic have

here, then, an ordinance which gives an administrative official dis-
cretionary po\ver to control in advance the right of citizens to spenk
on reli(Jious
t:>
matters on the streets of Ne\v York. As slich. the
ordinance is clearly invalid as a prior restraint on the exercise of
First Amendment rights."

Section 7( I) ofNRCD 68 constitutes a prior restraint on the freedom of

the citizen with respect to his rights under article 21 (d) of the
Constitution~ 1992 and is unconstitutional and void.
However~ the principle of prior restraint is not unkno\vn to our
Constitution, 1992. Article 21 (4 )(a) of the Constitution. 1992 and to a
certain extent and in special circunlstances article 21 (4)( e) of the
Constitution~ 1992 clearly enunciate the principle. It will be observed
that under article 21 (4)(a) of the Constitution .. 1992 the power to inlpose
restrictions is vested in the courts while in alticle 21(4)(c) of the
Constitution, 1992 the power as required to control those situations
mentioned therein must be granted by a law which illlposes reasonable
restrictions on the fundamental freedoms but does not deny the citizen
the fundalnentai freedoms to which he is entitled. In other words. the
citizen's freedoms may be restricted by law on the grounds stated in the
Constitution, 1992 but they cannot be denied. Any such denial will be
unconstitutional and void. Again with respect to restrictions imposed by
a court, the (ludi alJerenl parten1 rule must be adhered to. In Carroll v
President & COl1mlissioners qf Princess Ann .. 393 US 175 (1968) the US
Supreme Court held that an ex parte order forbidding a rally was
unconstitutional where the applicants could not demonstrate that it was
illlpossible to notify the opposing party in order to afford it the
opportunity of contesting the application.
Section 7(2) of NRCD 68 raises an entirely different issue from
section 7( I) ofNRCD 68. In section 7(2) ofNRCD 68 no lawful public
meeting or procession can be held in the places l11entioned therein
"except \vith the written consent of the COllllnissioner or any person
authorised by him." It will be noted that for the first tinle in the history
of Ollr constitutional developillent, alticle 21 (d) of the Constitution . 1992
provides for the right of the citizen to deillonstrate. To deillonstrate
means either to petition for the redress of grievances or express sllpport
for or opposition to a calise. Once again whereas in the fornler
Constitutions the citizen was not to be "hindered" in the enjoyment of
his fundaallental freedoills. in the Constitution, 1992 there is a ~~right'~
[J 993-94] 2 GLR NPf l' lOP (C Hayfroll-Belljamin JSC) 501

conferred on the citizen in the enjoyment of his freedoms. This positive

attitude towards the enjoyment of the freedoms cannot be abridged by a
law which prevents the citizen from delivering his protest even to the
seat of government. In Adderley v Florida, 385 US 39 at 54 (1966), one
Adderly and others were convicted for trespassing upon the premises of
a Florida county jail. The defendants had gone on the jail prelnises to
protest against the arrest of their fellow students. They refused to leave
on being notified that they would be arrested for trespass. The
defendants clainled that the conviction violated their constittutional right
of asselnbly. The US Supreme Court affirmed their convictions. I,
however~ incline to the views of Mr Justice Douglas expressed in his
dissent in which Chief Justice Warren and Mr Justice Brennan concurred
and I adopt them in support oflny opinion in the present case. He said:
"There nlay be some public places which are so clearly committed
to other purposes that their use for the airing of grievances is
anomalous. There Inay be some instances in which asssemblies and
petitions for redress of grievances are not consistent with other
necessary purposes of public property. A noisy nleeting may be out
of keeping with the serenity of the statehouse or the quiet of the
courthouse. No one, for example, would suggest that the Senate
gallery is the proper place for a vociferous protest rally. And, in
other cases, it may be necessary to adjust the right to petition for
redress of grievances to the other interest inhering in the uses to
which the public property is normally put ... But this is quite
different from saying that all public places are off limits to people
with grievances . . . And it is farther yet from saying that the
'custodian' of the public property, in his discretion, can decide
when public places shall be used for the communication of ideas,
especially the constitutional right to assemble and petition for
redress of grievances ... for to place such discretion in any public
official, be he the 'custodian' of the public property or the local
police COllllllissioner ... is to place those who assert their First
Alnendlllent rights at his mercy. It gives him the awesome power to
decide whose ideas may be expressed and who shall be denied a
place to air their claims and petition their government."

The section 72 ofNRCD 68 also provides that any such meeting or

procession cannot be lawfulJy held "except with the consent of the
[Minister] or any person authorised by hinl." This provision gives the
minister an unfettered right to refuse his consent. To invest the minister
502 Ghana Law Reports 11993-9412 (lLR

with such unfettered discretion is to place those who assert their

constitutional rights of asscmbly, procession and demonstration at his
mercy. '"It gives him the awesome po\ver~' to decide who shall he
pennitted to approach those places mentioned in NRCD 68. Section
7(2)ofNRCD 68 is also clearly unconstitutional.
In his statement of case. the defendant admits having withdrawil two
permits and breaking up a third procession-though he did not apply nny
violence. In his view, his actions were "'lawful and reasonable exercise
of authority vested in the police by the Public Order Decree. 1972
(NRCD 68)."
Betore us the Deputy Attorney-General submitted that as long as the
poJice were not vested with unfettered authority. their actions could be
reviewed by the courts. He could not say under what law such actions as
were complained of against the defendant could be reviewed by the
courts.
Section 8 ofNRCD 68 provided for the obtaining of a "perm it." It
was not denied by the defendants that in all the three instances the
plaintiff had applied tor permits and had been so granted. What section
ofNRCD 68 entitled· them to withdraw the permits they did not say. By
section 8(4) ofNRCD 68 it was only where a police officer rcfuses to
grant a permit under section 8 of NRCD 68 should he Hinform the
applicant in wrilinK of the reasons for his refusal." (The emphasis is
III ine.) It is clear that even if the provisions of section 8 of N RCD 68
were lawful, which they are not. once the permit was granted there was
no lawful authority for the police to withdraw it. The fact that other
persons might disturb that meeting or procession and thereby cause a
breach of the peace would not be a sufficient reason or ground for
withdrawing the permit.
The complaint before us was that section 8 of NRCD 68 was
inconsistent \vith the provisions of article 21 (d) of the Constitution, 1992
and therefore null~ void and unenforceable. The single issue raised by
this section is the validity of permits as abridgments of the constitutional
rights enshrined in al1icle 21 (d) of the Constitution, 1992. The matter is
not without authority. There are relevant cases decided in the United
States. Canada. India, Pakistan. the West Indies and in the Privy Council
in the United Kindgom. The United States cases predominate because
the issue of the validity of local and state permits for meetings.
assemblies. processions and demonstrations of the civil rights
1110velnents and activists have been considered in a variety of landmark
judgments.
[1993-94] 2 GLR NPP \' IGP (C Hayfron-Benjamin JSC) 503

The history of the civil rights movement in the United States led by
1V1artin Luther King, .fnr and other American southern black people and
organisations in the 19505 and I 960s are too well documented to require
repetition in this opinion. It must be admitted that this movement by the
southern blacks fuelled the wrath of the southern white communities who
employed two techniques against the black protesters~ namely (a)
prosecutions for criminal trespass~ and (b) breaches of the peace. The
basis of these two techniques were the laws relating to licensing and
permits. In the Adderley case (supra) at Mr Justice Douglas concluded
his dissent thus:
"~Today, a trespass law is used to penalise people for exercising a
constitutional right. Tomorro\v, a disorderly conduct statute~ a
breach of the peace statute, a vagrancy statute will be put to the
same end. It is said that the sheriff did not make the arrests because
of the view which petitioners espoused. That excuse is usually
given, as we know from the many cases involving arrests of
minority groups for breaches of the peace, unlawful assemblies, and
paradil~g without a permit."

We are here concerned with permits. Section 8(2) of NRCD 68

requires that the superior police officer shall consider the application for
a permit '~fairly and impartially." The duty to act fairly and impaa1ially
presupposes a duty to make a determination between competing interests.
I n the instant subsection it involves the choice between two positions~
one of which is illusory,-the citizen's rights of assembly, procession
and demonstration as against the discretion of the senior police officer in
determining whether to refuse a permit on the grounds that there is the
likelihood of a breach of the peace or that the meeting or proces~ion will
be pr~iudical to national security. The subsection provides no guide as
to the form and content of an application for a permit nor the yardstick
or the standard which the senior poijce officer shall apply in determining
vvhether or not he shall grant a permit. Although the senior police officer
must inform the applicant of the reasons for his refusal to grant the
permit, such refusal cannot be challenged in any court. Thus a senior
pol icc officer may out of prejudice, bias or even political preference
refuse a permit on flippant and untenable grounds. I have already
referred to Mr Justice Douglas' dissenting opinion in the Adderley case
(supra) and the necessity to prevent any abridgment of the fUl1damentai
human rights of the citizen. With our political history then as a gtlide~
the danger that stich awesome power as is contained in section 8 of
504 Ghana Law Reports [1993-941 2 Ci LR

NRCD 68 will be used to suppress the fundamental freedoms .lnd civil

rights of our people becomes real and must be struck down as
unconstitutional.
In Saia v New York, 334 US 558 at 560-561 (1948) Mr Justice
Douglas delivering the majority opinion of the US Supreme Court said:
"In Hague v C.I. U. [307 U.S. 496 (1939], we struck down a city
ordinance which required a licence from a local official for a public
assembly on the streets or highways or in the public parks or public
buildings. The official was empowered to refuse the permit if in his
opinion the refusal would prevent 'riots. disturbances or disorderly
assemblage.' We held that the ordinance was void on its face
because it could be made 'the instrument of arbitrary suppression of
free expression of views on national affairs.' The present ordinance
has the same defects. The right to be heard is placed in the
uncontrolled discretion of the Chief of Police. He stands athwart
the channels of communication as an obstruction which can he
removed only after criminal trial and conviction and lengthy
appeal."

In Saia v New Yurk (supra) the ordinance complained of required anyone

seeking to use a loudspeaker system in a public place to obtain a permit.
But absolute discretion to grant or refuse such permit was vested in the
ChiefofPolice. The ordinance was held to be unconstitutional. In iiague
v CIO. 307 US 496 at 515-516 (1939) Mr Justice Roberts said:
"Wherever title of streets and parks may rest. they have
immemorially been held in trust for the lise of the publ ic and, time
out of mind. have been used for purposes of assembly.
communicating thoughts between citizens. and discussing public
questions. Such use of the streets and public places has. from
ancient times. been a palt of the privileges, immunities. rights and
liberties of citizens. The privilege ... to use the streets and the parks
for communication of views on national questions may be regulated
in the interest of all~ it is not absolute, but relative and must be
exercised in subordination to the general comfort and convenience
and in consonance with peace and order~ but it 11lu,\'lnol, inll7e guise
(?fregu/aliol1, he ahridged or denied."

(The em.phasis is mine.)

Under our present Constitution~ 1992 therefore, while in appropriate
cases either the COUltS or a relevant law may impose a restriction on any
[I <)<)3-94] 2 GLR NPP v IGP (C Hayfron-Benjamin JSC) 505

of the freedoms contained in article 21 of the Constitution, 1992 the

requirement that a permit be obtained before the exercise thereof will be
unconstitutional and void.
The Deputy Attorney-General referred to the First Amendnlent to the
United States Constitution and submitted that that aillendment was a
restriction on the United States Congress to make laws abridging certain
freedoms. He may well be- right. The civil rights cases however show
that the major victories won in aid of the improvement in the social and
political standing of the African-American have succeeded on the
com bined appl ication of the First and Fourteenth Amendments to that
Constitution. It is said that the first ten amendments to the United States
Constitution constitute a Bill ofRights. In 1961 in the Akoto case (supra)
our Supreme COlllt missed the opportunity to designate article 13 of the
Constitution, 1960 as a Bill ofRights. The court said at 534 of the report:
"The suggestion that the declarations made by the President on
assumption of office constitute a 'Bill of Rights' in the sense in
wh ich the expression is understood under the Constitution of the
United States of America is therefore untenable."

I think the court proceeded on the principle of ubi jus, remedium.

Since no remedy was provided for a breach of article 13 of the
Constitution, 1960 the matter was not justiciable. Of course our
countrymen and \\'omen learnt a bitter lesson from that judgment. Every
Constitution since then has provided for punishment for the infringement
or breach of the Presidential Oath. In the present Constitution. 1992 the
franlers have done the reverse of the United States First Amendment
provisions. They have set out in clear and unmistakable terms the
fundamental human and civil rights which our people mu..\·t enjoy. In
chapter 5 of the Constitution, 1992 appropriate procedures for redress
and enforcement of these rights are provided for in article 33 of the
Constitution, 1992. It is interesting to note that article 33(5) of the
Constitution, 1992 extends the scope of human rights enjoyment when
it says that the rights mentioned in chapter 5 '~ ... shall not be regarded
as excluding others not specifically mentioned which are considered to
be inherent in a democracy and intended to secure the freedom and
dignity of Inan." I have no doubt in my nlind that the framers of the
Constitution, 1992 intended that the citizens of this country should enjoy
the fullest-nleasure of responsible human and civil rights. Therefore any
law which seeks to abridge these freedoms and rights must be struck
down as unconstitutional. The requirement of a permit or licence is one
506 Ghana Law Reports [1993-9412 GLR

such abridgel1lent of' the cOl1stitlltiol1ul right.

Finally. the Deputy Attorney-General submitted that this court sholiid
consider the necessity for the police to have the power to perform their
duties effectively. He cited the timely police and security forces
intervention in the recent spate of ethnic conflicts. In his view. the police
could only perform their duties effectively if they could rely on the
provisions ofNRCD 68. Further. that with respect to the exercise of tbe
undoubted constitutional rights of the citizen to meet. process and
demonstrate the retention of sections 7 and 8 of NRCD 68 with their
consent and perm it requirements was necessary to ensure that the pol icc
are able to "'prevent actions which are prejudicial to the rights and
freedoms of others or the public peace." The meaning of the word
"permit" therefore becomes crucial in the consideration of this
submission. The police have undoubted peace-keeping powers. But can
they prevent the citizen by the use of their permit from exercising his
fundaillental human and civil rights? In Berton v Alliance Ec.:O/1()Jl1ic
lnvestl11ent Co Ltd [1922] 1 KB 742 at 759, CA Lord Atkin defined a
permit in this manner:
"To my mind the word 'permit' means one of two things. either to
give leave for an act which without that leave could not be legally
done. or to abstain from taking reasonable steps to prevent the act
where it is within a man's power to prevent it."

I subscribe wholly to the above dictum. The object of the consent or

permit requirement within the intendments of sections 7 and 80fNRCD
68 is to give leave for the performance of an act which without such
consent or permit is forbidden by law. The necessary implication
therefore is that under NRCD 68 meetings~ processions and
demonstrations are prohibited by law unless sanctiond by the police or
other Stich authority. This proposition-and I cannot think of a better
statelnent of the legal position-clearly violates the enshrined provisions
of article 21 (d) of the Constitution, 1992 as it constitutes a serious
abridgment of the human rights of the citizen. Where any law or action
is in conflict with the letter and spirit of the Constitution, 1992 which is
the fundamental law of the land, then to the extent of Stich conn ict or
inconsistency that law is unconstitutional~ void and unforceable.
In Francis v Chief of Police [1973] 2 All ER 251, PC-a case from
which I have derived much assistance in preparing this opinion-their
lordships of the board of the Privy COllncil~ had occasion to examine the
issue of permits and their constitutionality with respect to the
11993- 9412 G LR N PP " IGP (C Hayfro n- Benj amin .ISC) 307

L't..lI1 ~ ti l lLti clll o r th e \V c :-; I I ndial l sl ate o f s'f C hri stoph ej'. Ncv j ~ !l lld
/\n 1,;uill ", T he matter concerned in I'hat case IVn th e con s tituti onality o r
sec ti o n S( t) or the Publi c Meet ings and Process io ns Act, 1969 o r that
country w hi c h gave unfettered ci isc reti onlo " the C hi ef of Po lice to grant
or re ru se permi ss io n fo r the use of noi sy in strume nts at a public
m ceti n1,;," M r Fra nc is was c harged wi th us in g a no isy in strum e nt- a
lo ud speaker- at a public meet in g w ithout I'i rst having o btain ed a pe rmit
fro m Ih e C hi ef o f Po li ce . T he issue rai sed fa r dete rminat io n by th e ir
lord s hi ps in thc Pr ivy Coun c il was w heth er sect io n 5( I) of th e Act
co ns tituted an ulll'easona bl e restriction o f thc freedom s co ntained in
sccti o n 10 or that co untry's Constitution ?
In the FJ'{{/ICis case (supra) al 256 thc board adv ised that secti o n 5( I )
or the Act was not un constitutional as " the use of lo udspeakers and other
no isy in struments is an adjunct o r accessory" to the ho ldin 1,; of meetings,
proce ss io ns and demon strat ions. Interest in th e Franc is case (s upra)
ari ses beca use th e St C hris top her Pub li c Meetin gs a nd Process io ns
O rd in ance is in contcnt a lmost s imilar to our N RC D 68, T he essenti a l
cl i ITcre nccs are (I) the St C hri stopher O rdi nance dea ls sepa rately w ith
ea" h rundamenta l freedom a nd provides a necessa ry regul ati o n for th e
e njoy me nt of each ri gbt by the c iti zen; a nd (2) th ere is a ri ght of appea l
to th e Gove l'll or in th e event o f a re fu sa l to gra nt a permit. Thu s und e r
sec ti o n 3 o f tli e St C hri stop he r O rdinance w hic h req uires a ny pe rson
w is hing to ho ld a publi c meetin g to inform th e police. th e board said at
' 255 o r th e re po rt:
" 11 should be noted th at under sect ion 3 a person w ho wishes to ho ld
n pub li c meetin g, though he does have to give noti ce of it, does lIul
!J({ve 10 ({sk perlllissirlll, and the ho ldin g of the meeting ca nnot be
p ro hibi ted o r restr icted except in specia l c ircum stances co nn ected
wi th th e preservat io n of pub li c order."

(T he e mphas is is mine ,) O n th e othe r ha nd und er o ur N RCD 68 , as I

ha ve sa id ca rli e r, th ere a re no s uc h freedo ms save those that are
pe rmitted by th e po li ce or oth e r auth ority, Th e Francis case (supra)
th e re fo re di stin gui shed pe rmits w hi ch al1ect the funda me ntal human and
c iv ill'i g ht s I'ro m th ose that are adjunct 0 1' accessory to the enjoyment of
th ose freedo ms , The ta nn e r are unconstituti onal. In my res pect ful
o pini o n, it is not necessa ry ta r e ffect ive po li c in g that the po li ce o r any
l)th e r authority s ha ll be in vested w ith th e power to co nsent or iss ue
perm its fo r th e e njoyment or exercise of the funda menta l human "nd c iv i I
rights o f t he c iti zen as e ns hrined in the Constitutio n, 1992.
508 Ghana Law Reports r1993-9412 (JLR
In rendering this opinion I have considered and applied thc vicws-
both the majority and the dissenting-contained in the judgments of the
United States Supreme Court which show the principles and policy
considerations involved. In my respectful opinion, they constitute useful
guides to the interpretation of our Constitution, I992-particularly the
chapter on fundamental human and civil rights. In the Frallcis case
(supra) at 259 Lord Pearson writing for the board noted that:
"The American judges look for the inherent limitations which there
Inust be in the fundamental freedoms of the individual if the
freedom of others and the interests of the community arc not to be
infringed."
Lord Pearson suggests two ways which will be useful in our context in
construing constitutional provisions affecting fundamental human and
civil rights. One way will be to read into our article 21 (I )(d) of the
Constitution. 1992 "the necessary limitations as are inherent" in the
fundamental freedoms of assembly including the freedom to take part in
processions and demonstrations. The other way will be to examine
article 21 (I )( d) of the Constitution, 1992 to see whether ""accord ing to
the literal meaning of the words there is a prima facie hindering of or
interference with the freedom of assembly, procession or demonstration"
and, if there is, to exam ine article 21 (4) of the Constitution "to see
whether such hindering or interference is justifiable."
I fully subscribe to the two ways stated above for construing the
constitutionality of article 21 (d) of the Constitution, 1992. The first way
does not impose any difficulty in its construction. The necessary
Iimitations which are inherent in the exercise or enjoyment of any ""righf'
of assembly. procession or demonstration are that the citizen must
observe the law-in particular that part of the Criminal Code, 1960 (Act
29) which deals with the preservation of the public peace. The other way
however presents some difficulty. The literal meaning of article 21 (4)
of the Constitution, 1992 implies that in cel1ain circumstances there can
be laws to restrict the constitutional provisions under article 21 of the
Constitution. 1992. The rider to the construction of article 21 (4) of the
Constitution, 1992 is, as I have stated earlier, that the law must provide
for restrictions to be imposed by a court or spell out restrictions which
must be neither inconsistent with nor in contravention of the provisions
of the Constitution, 1992. Within the intendments of article 21 (4) of the
Constitution, 1992. the phrase '"public order" appearing therein must be
given such a wide interpretation as ,viii protect the constitutional rights
of other citizens.
11 993- 1)4 .1 2 GL I~ N PP I' IG P (C Il a y r m ll - O c n.i" lII i ll .l S ' ) 5(1)

In c o n ~ truin g artic le 2 1( 1)(d) and (4) of th e o nsti tuti o n, 1992

Ih e re fore, il is cl ear that ( I) the concept of consent or pe rmit as
pre requ is it<:s ror the enjoyme nt of the fund a me nta l hum a n rig ht to
asseill ble, process or de monstrate is o utside th e ir purvi ew. Secti o ns 7
an d 8 of N Re O 68 are conseque ntly patently inconsistent w ith the lette r
and spirit of the prov isions o f m1icle 2 1(d) of the Constitution, 1992 and
a rc un constituti ona l, void and un enfo rceab le; a nd (2) some restri ct io ns
as a re prov ided for by a rtic le 2 1(4) of the Constitut ion, 1992 may be
necessary from time to time a nd upon proper occasion. But th e ri ght to
assemb le, process o r de monstrate cannot be de ni ed. The sections o f
N RC D 68 whi c h fo rilled the bas is of the plaintiff 's writ were ex fac ie
unconstitutiona l, vo id and une nfo rcea ble. It is for these reasons that the
p laint iff's writ succeeded, and the dec laration s were g ranted a nd the
o rde rs made.

.Judglllel7l./or the plaintiff.'

Order accordingly.

DRKS

GHANA BAR ASSOCIATION and Another v

WARD-BREW

I-IIGI-I COU RT. ACC RA

20 August 1990

OMARI-SASU J

('ollrts- Iligh ('Ollrt- Jurisdiclion-Ollsler clauses- Action by respol1dent ill I!t~(fli (.'ourt
./hr dec/oral inn 111m his disq ualifica tioll [rom contesting elections of appliclIl1t
wi.weiOlion on oc(;01l1l1 ol'd,\' allenc/al1ce at public tribunals ill defiallce of
associatiol1S resolution invalid- Action resisted 011 tlie basis Ihal re" JJO llde lll faifed
to (Ivail himselfoldollleslic remedies il7 regulation 8 qrre~llfflliol1s ~r(l·,soci(llion
govern il1g elections- Action involving importal1l legal and c0l1stilulUiol1(l1
qllcstiom'- "'''ether jllri.wliclioll 0/ COliN ollsted 011 accollnt 0/ provi."ions q{
regulation 8 of regulations of (lssociation governing e leclions.
l'IYlelice and procedllre- Pleadillgs-Striking OIlt- ri clion by respOlldentfor dec/aration
that his disqllal[/ication ji-om contesting electioll oJ applicant association on grollnd
of hi.\· (/ lIcndnl1ce al public trihll1lOls in dejiance of asssocnfion 's resollllioll.