1.  Ghana is a unitary constitutional democracy based on a Constitution that was adopted in a referendum in 1992 but which came into force on 7 January 1993. The Constitution was amended once in 1996. Ghana’s Constitution has a hybrid political structure with a blend of institutions from both the parliamentary and presidential systems. The President and the Vice-President are elected to office on the basis of universal adult suffrage.¹ Executive authority is vested in the President, who is assisted in the exercise of his/her executive powers by ministers and deputy ministers. A majority of ministers must be drawn from Parliament, and their appointments require the prior approval of Parliament to be complete and valid. The President is assisted by a Cabinet but final authority in executive matters rests with the President. In addition to the Cabinet, the President is assisted by the Council of State, which advises the President in the exercise of his/her executive functions. However, the President is not bound by the advice of the Cabinet or the Council of State.

2.  The role of the executive includes making proposals for legislation and implementing the laws already passed by Parliament. The President has the constitutional authority to assent to bills passed by the Ghana Parliament. Additionally, the Constitution and various laws enable the executive to enact regulations, some of which must be laid before Parliament before they become law. Other rules and regulations made by the executive, called executive instruments, are considered to be executive in character and manifest the exercise of executive authority, and consequently do not require any parliamentary approval or scrutiny. In Ghana, the President wields enormous political power, including the power to appoint ministers and deputy ministers, the heads of various public institutions, agencies, or departments, and to dismiss them at will. In addition, the President of Ghana is vested with the prerogative of mercy, which is not subject to judicial review.

3.  In line with the principle of separation of powers, Article 93(2) of the Constitution vests legislative power in Parliament. For the purposes of legislative elections, Ghana is divided into 275 constituencies and each constituency is to be represented by one Member of Parliament (MP).² It is the mandate of the Electoral Commission, the election management body in charge of all public elections and referenda in Ghana, to demarcate Ghana into various constituencies. At the onset of the Covid-19 pandemic in Ghana in March 2020, the New Patriotic Party (the party in government) had a majority of MPs, with 169 MPs against 106 members for the Opposition party, the National Democratic Congress (NDC). Following the presidential and parliamentary elections held in December 2020, Ghana had a hung Parliament with both the New Patriotic Party (NPP), the party in government, and the NDC, the main opposition party, featuring 137 Members of Parliament each. There is one independent MP. As of December 2022, the NPP has maintained its numerical strength of 137 MPs while the NDC has lost a seat in Parliament, bringing its number of MPs from 137 to 136 MPs. Ghana’s initial hung Parliament has had no noticeable practical effect on the nature of policies, measures, and laws the Government has adopted in response to the Covid-19 pandemic. Ghana’s hung parliament had no significant impact to the government’s pandemic response.

4.  Parliament is a key stakeholder in political decision and policy-making processes in Ghana. Article 106 of the Constitution sets out the mode by which the power is exercised. Article 102 stipulates that a quorum of Parliament, apart from the person presiding, shall be one-third of all MPs. Furthermore, per Article 103 of the Constitution, Parliament is required to appoint standing committees and other committees as may be necessary for the effective discharge of its functions.

5.  The functions of these committees include the investigation and inquiry into the activities and administration of ministries and departments as Parliament may determine, and such investigation and inquiries may extend to proposals for legislation. By Article 104 of the Constitution, matters in Parliament, except as otherwise provided in the Constitution, shall be determined by the votes of the majority of members present and voting. Unless the life of Parliament is extended in accordance with Article 113 of the Constitution, general parliamentary elections are held every four years.

6.  Ghana’s Parliament faces both structural and institutional limitations as the structure of the 1992 Constitution and parliamentary practice appear to weaken Parliament’s power to sufficiently exercise its supervisory and oversight functions over the executive. By Article 108 of the Constitution, a MP is prohibited from introducing any bill which has the effect of imposing or altering tax, imposing a charge on the public treasury, withdrawing funds from the public treasury, and cancelling any debt owed to the Government of Ghana. In other words, the limitation on parliament is that it cannot initiate or pass bills or motions related to taxation, public treasury or debt management without the president’s approval or introduction. The policy rationale seems to be that only the executive, through its ministers, should have the authority to introduce bills that have financial implications. The determination of whether a bill has the specified effect of imposing or altering a tax is the prerogative of the Speaker of Parliament or the person presiding over Parliament. Furthermore, Ghana’s Parliament faces other challenges as it continues to grapple with issues of independent research and, most importantly, budget oversight. Although Parliament is supposed to exercise supervision and oversight over the activities of the executive through its power of censure, the power of the purse, and the activities of various parliamentary communities, it has been observed that ‘MPs of the ruling party, strongly desirous of becoming Ministers, find it difficult to dispassionately scrutinise the government. This weakens Parliament’s oversight role’.³

7.  Aside from the demarcation of Ghana into constituencies for the purpose of representation in Parliament, Ghana is also divided into local government districts (including municipalities and metropolitan areas) and electoral areas for the purpose of local government administration and elections.⁴ According to the Constitution, local government elections, which consist of District Assembly and Unit Committee elections, shall be held at least six months before or after parliamentary elections to elect assembly members or electoral area representatives to the district assemblies and unit committee representatives.⁵ Local government elections are held every four years to elect electoral area representatives to the district assemblies. A district assembly is the highest political authority in the district, and shall have deliberative, legislative, and executive competencies.⁶ The unit committees are the lowest level of Ghana’s local government system.⁷ Currently, Ghana has a total of 6,272 electoral areas with ‘each electoral area represented by one assembly member’.⁸ As far as measures taken to address Covid-19 are concerned, Ghana’s local government administrations have largely served as conduits for the implementation of measures introduced by the national Government. They have not taken any independent action in an attempt to address the incidence or effects of the pandemic.

8.  Furthermore, Ghana is composed of regions and regional administrations. There are currently 16 regions headed by regional ministers, assisted by deputy regional ministers and regional administrative bureaucracies. The primary function of the regional administrations is to serve as the representatives of the national Government at the regions and coordinate the activities of the various local government administration within a region. These regions have primarily executive competences in matters such as safeguarding security in the region and the supervision of local government authorities. Like the local government administrations, the regions and regional administrations have not introduced any measures independent of the efforts of the national Government to address the Covid-19 pandemic. On the contrary, they have largely served as arenas for the coordination and implementation of measures already introduced by the national Government to tackle the pandemic. The concentration and adoption of measures at the national level have allowed for swift and prompt action to be taken towards fighting the pandemic.

9.  It should be noted that the response to the pandemic did not change the basic constitutional arrangements discussed above.

10.  Ghana is one of the first countries in sub-Saharan Africa to be supplied with vaccines under the UN Covid-19 action plan, designed to help countries fight the pandemic. In March 2020, Ghana reported its first case of Covid-19 at a time when its debt-stressed economy, which had in previous years been hit by a debilitating power crisis, was on the path of recovery. Therefore, the legal, economic, and social effects of the pandemic have been significant. The management of the pandemic has badly affected the economy, with debt to GDP ratio of 92.4% as of December 2022.⁹ Fundamental freedoms including freedom of worship and assembly have been curtailed. And it is yet to be seen whether lessons being learnt from the management of the pandemic will result in legal and other reforms to enable Ghana to better manage similar pandemics in the future, while limiting the effects on fundamental human rights and freedoms and the economic and social wellbeing of its citizens.

11.  In tackling the pandemic, the Government of Ghana has so far refused to declare a state of emergency within the provisions of Article 31 of the 1992 Constitution, despite public concern that a declaration of a state of emergency on the basis of Article 31 of the Constitution would have provided a firmer legal anchor for the Government’s response to the pandemic.¹⁰ On the basis of Article 31 of the Constitution, the President of Ghana may, acting in accordance with the advice of the Council of State, declare that a state of emergency exists in Ghana or in any part of Ghana for the purposes of the provisions of this Constitution. This Article further requires that, notwithstanding any other provision of the Article, where a proclamation is published the President shall place immediately before Parliament the facts and circumstances leading to the declaration of the state of emergency.

12.  The 1992 Constitution has set out clear rules and countervailing powers between the executive and the legislature to control the exercise of a state of emergency. Upon Parliament being so notified of the declaration of a state of emergency, Parliament shall, within 72 hours of being so notified, decide whether the proclamation should remain in force or should be revoked, and the President is bound to act in accordance with the decision of Parliament. Article 31 of the Constitution further states that a declaration of a state of emergency shall cease to have effect after seven days, starting on the date of publication of the declaration unless the declaration is approved by a resolution passed under Article 31(4) for that purpose, by a majority of all the members of Parliament. A declaration so approved by resolution shall remain in force for three months. The Constitution also mandates that a majority of Parliament may extend its approval of the declaration for periods of up to one month at a time. Parliament may also revoke a declaration of a state of emergency approved by Parliament under this Article.¹¹

13.  The circumstances under which a state of emergency may be declared under Article 31 of the Constitution include a natural disaster and any situation in which any action is taken or is immediately threatened to be taken by any person or body of persons which: (a) is calculated or likely to deprive the community of the essentials of life; or (b) renders necessary the taking of measures which are required for keeping the public safe, the defence of Ghana, and the maintenance of public order and of supplies and services essential to the life of the community. The Constitution further adds that:

Nothing in, or done under the authority of, an Act of Parliament shall be held to be inconsistent with, or in contravention of, Articles 12 to 30 of this Constitution to the extent that the Act in question authorizes the taking, during any period when a state of emergency is in force, of measures that are reasonably justifiable for the purposes of dealing with the situation that exists during that period.¹²

14.  The pandemic meets the conditions, particularly condition (b) stated above, for the declaration of a state of emergency.

15.  Ghana is a member of the United Nations and a state party to many human rights conventions, including the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the African Charter on Human and People’s Rights.¹³ Ghana has a dualist legal order and the above conventions or treaties do not have direct legal effect in Ghana as they are yet to be incorporated into the domestic laws of Ghana. Again, pursuant to Article 75 of the 1992 Constitution, a treaty, agreement, or convention executed by or under the authority of the President becomes part of the laws of Ghana subject to ratification by: (a) Act of Parliament; or (b) a resolution of Parliament supported by the votes of more than one-half of all members of Parliament.¹⁴ Article 73 of the Constitution further requires the Government of Ghana to conduct its international affairs in accordance with the accepted principles of public international law and diplomacy and in a manner consistent with the national interest of Ghana.¹⁵

16.  In 2012, Ghana passed the Public Health Act 2012 (Act 871), whose section 168 provides the following: ‘International Health Regulations - 168. (1) The provisions of the World Health Organisation, International Health Regulations specified in the Seventh Schedule shall apply in addition to the Regulations made under this Part in so far as a provision of the Seventh Schedule is not inconsistent with a provision of any of those Regulations. (2) The Minister shall give effect to the International Health Regulations to provide a public health response to the international spread of disease. (3) The Minister may by legislative instrument modify the provisions of the Seventh Schedule to suit the purpose of the Republic.’¹⁶ and incorporated into its domestic laws the World Health Organisation (WHO) International Health Regulations on health emergencies of a global concern¹⁷. Consequently, subsequent to the declaration by the WHO on 11 March 2020 that Covid-19 was a health emergency of a global dimension, the Government of Ghana, on 30 March 2020, issued a declaration of a health emergency under the Public Health Act (see further, Part II.B below).¹⁸

17.  In view of Ghana’s recent political past, characterized by dictatorial rule and abuse of fundamental human rights, the framers of the post-independence Constitutions of Ghana were particularly conscious of the use of emergency powers by the state to trample on fundamental human rights. They were concerned that ‘a Government could, in the blessed name of security of the State, take certain measures which could hardly be described as being in aid of the emergency that has arisen’.¹⁹ Mindful of the potential abuses of a state of emergency, the framers devised a legal scheme in Article 31(10) of the 1992 Constitution to uphold some personal freedoms and preserve some rights even during periods of emergencies. In this regard, Article 31(10) of the Constitution provides that any derogation of rights must be ‘reasonably justifiable for the purposes of dealing with the situation that exists during that period [of emergency]’.²⁰ Even where the condition of reasonable justifiability is satisfied, Article 32 of the Constitution further stipulates that, the right of ‘persons restricted or detained’ to access a court/tribunal and consult counsel of their choice is non-derogable. It would seem that the sanctity or sacredness of the right to counsel regardless of the exceptional situation at hand rests on the profound premise that due process and the right to access the courts should be guaranteed at all times, even during states of emergency. As noted above, the Government did not operationalize these transparent processes for the declaration and control of states of emergencies as during the pandemic the Government refused to formally declare a state of emergency pursuant to Article 31 of the Constitution.

18.  Instead of formally declaring a state of emergency in line with Article 31 of the Constitution, the Government of Ghana decided to use a range of laws to combat the pandemic. Some of these laws were enacted prior to the pandemic, while others were made during the pandemic. In 1994, the Ghana Parliament passed the Emergency Powers Act 1994 (Act 472) to ‘provide for powers to be exercised in cases of state of emergency and for related matters’.²¹ This Act supplemented the provisions of the Constitution in Article 31 on states of emergency. The Emergency Powers Act grants extensive powers to the President during a state of emergency, including the power to ‘detain or restrict the movement of persons’, ‘deport or expel non-Ghanaian citizens’, ‘take over property’, ‘search premises without a warrant’ and ‘suspend the operation of a law’.²² The operation of the Emergency Powers Act is subject to the oversight role of Parliament in Article 31 of the Constitution. This oversight role would enable Parliament to control, renew or revoke declarations of emergency. The Government has not triggered or utilised any provisions of the Emergency Powers Act to fight the pandemic. The Government’s use of the Emergency Powers Act would have required a declaration a state of emergency pursuant to Article 31 of the Constitution but so far the Government of Ghana has not considered it necessary.

19.  Another statute of relevance to the fight against the pandemic is the aforementioned Public Health Act 2012 (Act 851) passed by the Ghana Parliament in 2012.²³ Section 169 of the Act empowers the Minister of Health to declare a public health emergency by executive instrument where there is a situation that poses an immediate risk to health, life, property, or the environment. In March 2020, the Minister of Health declared through executive law-making a public health emergency through the Declaration of Public Health Emergency (Coronavirus [Covid-19] Pandemic) Instrument, 2020 (EI 61).²⁴ This instrument, which was made without any reference to the Parliament, had no specified duration but was clearly meant to remain in force till the pandemic was over. The Public Health Act 2012 authorises the Minister of Health upon a declaration of a public health emergency to ‘direct a public health official to respond immediately to a public health emergency and may order an individual to take preventive measures or be quarantined’. The Minister may also authorise ‘a public health official… to act outside the area of authority of the public health officer’.²⁵ The Government hardly used the provisions of the Public Health Act in fighting the pandemic, except for the aforementioned EI 61 instrument.

20.  By far, the most intrusive, dominant, and controversial piece of legislation introduced by the Government of Ghana to address the pandemic is the Imposition of Restrictions Act 2020 (Act 1012) (‘IRA Act’). This law was introduced in Parliament on 18 March 2020,²⁶ and came into force on 21 March 2020, spanning just a period of 4 days from its introduction in Parliament to it coming into force. The law is anchored on Article 21(4)(c), (d), and (e) of Clause 4 of the Constitution, which stipulates that:

1. ‘21[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;

   1. [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

   2. [d]  for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, if a person who is not a citizen of Ghana; or

   3. [e]  that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community 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’.

21.  Based upon these constitutional limitations, the IRA Act empowers the President to impose restrictions on persons by executive instrument, to give effect to Article 21(4)(c), (d), and (e) of Clause 4 of the Constitution ‘in the event or imminence of an emergency, disaster or similar circumstance to ensure public safety, public health and protection.’²⁷ By its stated objects or preamble, the IRA Act applies to ‘an emergency, disaster or similar circumstance’.²⁸ In that context, it was designed as a statute of general application to be triggered or applied to all ‘emergencies or similar situations’. The IRA is premised on the fact that an emergency exists although as noted above the Government has refused or neglected to declare a formal state of emergency under Article 31 and the Emergency Powers Act. Furthermore, the IRA has no sunset provisions as it is framed as a general law to be used by Government whenever an emergency exists. This raises substantial doubt as to whether the IRA Act is consistent with the constitutional framework for addressing states of emergencies. This is because its framework appears to be inconsistent with the provisions of Article 31 of the Constitution on declarations of states of emergencies, particularly on parliament’s role as a countervailing force in reviewing, renewing. or revoking a state of emergency as necessary.

22.  The IRA Act contains peculiar and unusual criminal provisions by Ghanaian constitutional standards. In Ghana, as in many other common law jurisdictions, the legal analysis of criminal offences first looks at the provision(s) creating the offence(s) and then the provision(s) defining the offence(s). This IRA Act creates a criminal offence in Section 6 of the Act, which states that it is a criminal offence punishable by ‘a fine of not less than one thousand penalty units (GHS 12,000) and not more than five thousand penalty units (GHS 60,000) or to a term of imprisonment of not less than four years and not more than ten years or to both’ (one penalty unit = GHS 12) if a person fails to comply with a restriction imposed under the executive instrument issued by the President.²⁹ This means the IRA creates but does not define any criminal offence, which is to be defined or specified by the President through an executive instrument. Instead, the power to define the criminal offence created by Section 6 of the IRA Act has been delegated to the President of Ghana, who has exercised this delegated power by issuing a number of executive instruments to tackle the pandemic.³⁰

23.  Many learned commentaries have cast doubt on the constitutionality of the IRA Act.³¹ It has been argued that the Imposition of Restrictions Act 2020 cannot pass the crucible of constitutionality since it seeks to address a situation of emergency while sidestepping the prescribed mechanisms in Article 31 of the Constitution for dealing with a state of emergency.³² Furthermore, the authority conferred on the President by Parliament under the Impositions of Restrictions Act 2021 to specify and define the criminal offences (restrictions) the President considers necessary to combat the pandemic allows for the adoption and revision of measures without any additional recourse to Parliament by the President. At the same time, it appears to have created an uncertain legal situation. Section 6 of the IRA Act empowers the creation of offences through executive instruments made by the President, ie those imposing penalties for failing to comply with new restrictions. Conversely, as the President removes any restrictions imposed by a previous executive instrument, the hitherto complete criminal offence—Section 6 of the IRA Act creating the offence plus the restriction imposed by the President in the EI defining the criminal offence—becomes incomplete as it now lacks the definition of the criminal offence, that is, the ingredients of the criminal offence to be prescribed by the President through an executive instrument.

24.  In effect, the IRA Act authorizes the President by way of a legal instrument to define the criminal offence, review, and repeal the restriction without any reference to Parliament.³³ By Ghanaian constitutional standards, this broad conferment of power on the President to define, review, and repeal criminal provisions without any recourse to Parliament appears unprecedented. This appears to be the first time since the adoption of the 1992 Constitution that the President has been empowered by an Act of Parliament to define a crime (provide for the ingredients of the crime) through an executive instrument and revise, amend, and repeal the definition of the criminal offence through an executive instrument, without any reference to Parliament. The only other example that comes close to the present situation was the power granted the first President of Ghana in Section 55 of the 1960 Constitution to enact specific laws without any reference to Parliament.³⁴

25.  The IRA Act has other due process concerns. The provision of a punishment regime in Section 6 of the IRA Act, in anticipation of the President specifying or defining the crime by an EI which Section 6 of the IRA Act covers, goes against the grain of legal doctrine and the constitutional structure for the allocation of powers to the legislative and the executive arms of Government. It is doubtful whether an EI could be used to specify the mens rea and/or actus reus requirements of the crime created by Section 6 of the IRA Act. By legal doctrine and Ghana’s constitutional practice, EIs are never used to enact or define crimes.³⁵ Instead, they are used to execute or implement (but not to make) law, for example, by issuing a deportation order, compulsorily acquiring property, or specifying the date when a law passed by Parliament will come into effect.³⁶ It would therefore appear that the power vested in the President by Parliament to define offences by an EI without any further reference to Parliament constitutes an impermissible trespass of legislative space by the executive with the manifest approval of Parliament.

26.  Arguably, the regulatory or administrative state cannot survive if it is legally impermissible to employ the mechanism of delegated legislation to set new and binding regulatory standards without prior reference to the legislature. In the specific context of Ghana, Article 11(7) of the Constitution stipulates, among others, that any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall ‘come into force at the expiration of twenty-one sitting days after being so laid unless Parliament before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two-thirds of all members of Parliament.’³⁷ However, the apex court in Ghana has held that Article 11(7) of the Constitution applies only to orders, rules, and regulations that are legislative as opposed executive in character.³⁸ Clearly, the power accorded the President under the IRA Act to specify and define conduct that constitutes criminal offences partake of the exercise of legislative and not executive authority. The specification of conduct that constitutes a criminal offence is a quintessential legislative act.

27.  What is more, by the requirements of the right to fair trial under Article 19(11) of the Constitution, a criminal offence must be defined in a ‘written law’. In Ghana, all criminal offences are defined in a law passed by Parliament. Conversely, the IRA has empowered the President to define the crime (the restriction) needed to combat the pandemic through an EI. Because EIs by definition are not supposed to have a ‘legislative character’, the Supreme Court of Ghana has held that EIs are not subject to Article 11 of the Constitution,³⁹ which as noted above requires that orders, rules, and regulations made by a person or authority under a power conferred by this Constitution or any other law shall, among others, be laid in Parliament and ‘come into force at the expiration of 21 sitting days after being so laid’. Thus, based on Ghana’s constitutional law doctrine and practice, it is more likely than not that the EIs issued by the President under the IRA Act will not pass the test of ‘written law’ in Article 19(11) of the Constitution. If this view is correct, it will call into question the lawfulness of the trial, conviction, and sentence of persons who have been convicted and sentenced for breaching the physical and social distancing protocols and rules issued by the President through a number of EIs.⁴⁰ At the time writing, the courts have not decided any legal challenges to the IRA Act along these lines.

28.  The most dominant feature of the Government’s response to the pandemic has been the sheer scope and breadth of executive orders that it has issued to combat the pandemic. As of August 2024, the Government had issued a number of executive instruments or orders on the basis of the IRA Act and the Electronic Communications Act 2008 (Act 775) without any reference to the Parliament, and in some cases without the existence of the conditions precedent for the issuance of the executive orders or instruments. These executive orders have sought to specify and define the measures, including restrictions on movements and travel, lockdowns, the prohibition of religious, economic, and social activities, that the Government has adopted to protect public order and health in order to fight the pandemic. Similar to the IRA Act, these executive orders—that are not regulated through any legislative oversight and appear to be more legislative than executive in character—raise substantial issues about their consistency or compatibility with the constitutional limitations on the extent of presidential and parliamentary powers under the provisions of the 1992 Constitution.⁴¹

29.  On 23 March 2020, the Government issued the first of the executive instruments or orders, namely, the Imposition of Restrictions (Coronavirus disease (Covid-19) Pandemic) Instrument 2020 (EI 64). The recitals of this instrument provided some background information for the making of the instrument. On 11 March 2020, the Director-General of the World Health Organization had declared the Coronavirus disease (Covid-19) a pandemic, pointing to the over 118,000 cases reported in more than 110 countries and territories around the world and the sustained risk of further global spread.

30.  On 12 March 2020, at which time there had not been any reported or confirmed case in Ghana, the President addressed the nation on the measures taken by the Government in response to the Covid-19 pandemic. On 13 March 2020, the first two cases of Covid-19 were reported and confirmed in Ghana. On 15 March 2020, the Minister for Information informed the people of Ghana at a press briefing that the number of cases of Covid-19 had increased to six and issued several guidelines for entry into Ghana and other related preventive measures. On 15 March 2020, the President had chaired a meeting of the Inter-Ministerial Committee on Covid-19 Response, to review the public gathering advisories in the interest of public safety and protection of all people living in Ghana, and, subsequent to that meeting, addressed the nation on the new protocols for public gatherings. The Minister of Health, having recognised the threat of Covid19 to life and health and its potential to escalate and cause danger to the life and health of people living in Ghana, exercised the powers conferred on the Minister under Sections 169 and 170 of the Public Health Act 2012 (Act 851) and declared a public health emergency, pursuant to the Declaration of Public Health Emergency (Coronavirus Covid-19 Pandemic) Instrument 2020 (EI 61). In order to combat the Covid-19 pandemic and protect public health and public safety, there existed circumstances which required the imposition of certain restrictions, pursuant to Subsection 1 of Section 3 of the Imposition of Restrictions Act 2020 (Act 1012).

31.  By Section 99 of the Electronic Communications Act 2008 (Act 775),⁴² where a state of emergency is declared in Ghana under Article 31 of the Constitution or another law, an operator of communications or mass communications systems shall give priority to requests and orders for the transmission of voice or data that the President considers necessary in the interest of national security and defence. Section 100 of the same Act states that the President may, by executive instrument, make written requests and issue orders to operators or providers of electronic communications networks or services requiring them to intercept communications, provide any user information, or otherwise in aid of law enforcement or national security. These provisions come under the backdrop of Article 18 of the Constitution which stipulates that no person shall be subjected to interference with the privacy of his home, property, correspondence, or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime, or for the protection of the rights or freedoms of others.⁴³

32.  Acting under these powers, on 23 March 2020 the President issued the Establishment of Emergency Communications System Instrument 2020 (EI 63), which enabled the Government, among others, to compel a network operator or service provider to provide the call data and cell sites records of subscribers.⁴⁴ The lawfulness of EI 63 appears to be in doubt since by its content—and despite the EI referencing only Section 100 and not Section 99—EI 63 deals with matters under Section 99 of Act 775 which can only be triggered ‘where a state of emergency is declared under Article 31 of the Constitution or another law’.⁴⁵ It is therefore arguable whether the exceptional powers the President seeks to exercise under EI 63 can be lawfully exercised absent a formal declaration of a state of emergency under Article 31 of the Constitution or the Emergency Powers Act.⁴⁶ It is unclear whether the reference to ‘another law’ in Section 99 of Act 775 applies to public health emergencies declared under the Public Health Act, which carefully delineates the powers the government may exercise upon a declaration of a public health emergency (see Part II.A above). Arguably, it does, and in that event, the powers given to the President under EI 63 for the mass interception of electronic communication of citizens are consistent with the requirements Section 100 of Act 775, except if they are found to be disproportionate for the purpose of combating a public health emergency. The case of Francis Kwarteng Arthur v Ghana Telecom Ltd. and ors provides support for this view.⁴⁷ In this case, the High Court had found that ‘EI 63 was made in accordance with law and any personal information of Applicant with 1^st and 2^nd Respondent necessary for contact tracing for the public health purpose of the Covid-19 pandemic met the legitimacy, proportionality and legality tests under the Wednesbury principles’.⁴⁸ However, the court declared certain provisions of EI 63, which required the disclosure of subscriber mobile money details, to be unlawful and struck down those provisions on the basis that they did not meet the legitimacy, proportionality, and legality tests.⁴⁹ The court further ordered the government to amend the law within twelve months to address the portions that had been declared unlawful. On appeal to the Court of Appeal, the decision of the court below was affirmed, except that the part of the judgment directing the government to amend EI 63 within 12 months was reversed or set aside. The court reasoned that the ‘judiciary may declare a statute or a provision thereof to be unconstitutional or unlawful, but it cannot compel the executive or legislature to pass a law ... giving time lines for such an exercise’.⁵⁰

33.  Many lawyers were not exempted from the various restrictions imposed by the Government to help the fight against the pandemic. For other effects, see Part III.C below.

34.  If the Government had formally declared a state of emergency under Article 31 of the Constitution and the Emergency Powers Act, it could exercise powers under Section 4 of the Emergency Powers Act to suspend the operation of certain laws or rules, including procedural rules relating to rigid timelines for filing some court processes.

35.  Some of the measures introduced by the Government have been criticised by academics and others on ground of lack of constitutionality.⁵¹ However, to date no persons or bodies have mounted any legal challenges in the Ghanaian courts to test the legality of these measures.

36.  Information for this section could not be included in this report.

37.  Parliament is a key contributor in the political decision sphere and policy-making processes in Ghana. In the absence of a declaration of a state of emergency under Article 31 of the Constitution or one under the Emergency Powers Act (see Part II.A above), the role of Parliament has been limited to passing Covid-19-related legislation, specifically the IRA Act,⁵² and Novel Coronavirus National Trust Fund Act 2020 (Act 1013).⁵³ The government’s declaration of a public health emergency under the Public Health Act garnered limited attention, as the primary authority exercised by the government to address the pandemic was grounded in the Imposition of Restrictions Act and various executive instruments issued under that Act (see Part II above).

38.  In particular, the power conferred on the President by Section 2 of the IRA to impose restrictions by EIs, which do not require parliamentary scrutiny (see Part II.B above), has meant that Parliament has largely been a bystander as far as the measures that have been introduced to fight the pandemic are concerned. Furthermore, although parliamentary committees have the mandate to investigate and inquire into the activities and administration of ministries and departments as Parliament may determine, no investigation and inquiries have taken place in relation to Covid-19-related matters.

39.  Due to Covid-19, many Government institutions, including the courts and Parliament were shut down and some members of Parliament contracted Covid-19.⁵⁴

40.  The operation of the Ghanaian courts was severely disrupted when the Covid-19 pandemic hit Ghana in March 2020. None of the EIs that imposed restrictions on citizens and certain activities in the effort to fight the pandemic created any exemptions for lawyers and the courts. Some courts were closed, and a few courts designated to hear urgent cases. On 20 March 2020, the Chief Justice of Ghana issued a circular announcing measures put in place to prevent the spread of Covid-19 in the courts across the country. Lawyers were required to attend court without their clients and request long adjournments of cases to be listed for hearing at the end of May, June, or July 2020. The cases will be adjourned to specific dates and times in line with the earlier case management directive issued. Alternatively, lawyers on both sides of a case may agree together to adjourn the matter to a specific date to be communicated to the registrar in writing, thus avoiding the need to travel to the court for that purpose.

41.  The judiciary was also required to ensure that in partly-heard cases, only lawyers, parties, and their witnesses were allowed in Court. In all other cases, only lawyers a n d t h e parties were allowed in Court. Judges and magistrates were to be flexible in granting adjournments during this period and were directed to grant long adjournments in matters which did not require immediate resolution.

42.  On 30 March 2020, the judiciary issued a press release clarifying the scope of the measures already instituted, and further added additional measures.⁵⁵ It was noted that the restrictions imposed on the citizenry of Greater Accra and Greater Kumasi affected all lawyers and litigants and/or other court users, since these categories of persons were not exempted by EI 64. For this reason, registrars were directed to adjourn all cases listed during this period to dates in May and June 2020. In Greater Accra and Greater Kumasi, the courts listed in Schedules A and B respectively, were designated to deal with critical cases which may arise, ie breaches arising from the restriction orders and other criminal matters. The Supreme Court and Court of Appeal were available to handle urgent cases as determined by the Chief Justice during this period. Registries of the Supreme Court and Court of Appeal would be open during this period. Support staff who fell into certain categories had already been requested to take their annual leave. The following skeletal staff would, however, be required to be in place to support the designated courts: registrars, cashiers, court clerks, interpreters, recorders, and bailiffs. All other staff would be required to apply for their leave during the period of the restriction. Administrative offices would be manned by skeletal staff determined by heads of departments to ensure that critical services were rendered during this period. Earlier press releases—issued by the judiciary on 16 and 20 March 2020—which outlined Covid-19 protocols still applied.

43.  On 26 January 2021, the judiciary sent a public reminder regarding measures put in place to deal with the spread of Covid-19 in the courts following the upsurge of Covid-19 infections, stating that ‘judges and magistrates should endeavour to adjourn cases to specific times on given dates, to limit the number of people that will be allowed into the court room. Cause lists should be reduced drastically for only a few cases to be listed for hearing. Judges and magistrates should only hear cases which are of extreme urgency and as far as possible, exercise great restraint in remanding accused persons, in order to avoid overcrowding the prisons and police cells’.⁵⁶

44.  Judges and magistrates suspended the hearing of cases involving the movement of convicted and remand prisoners from the prisons to the courts. In criminal appeals, the courts should dispense with the appearance of the appellants who are in prison custody. Sanitisers have been provided for court users and arrangements have been made to have the court rooms regularly disinfected. Judges and magistrates should ensure that, in partly-heard cases, only lawyers, parties, and their witnesses are allowed in court. Judges and magistrates should ensure that, in other cases, only lawyers and parties are allowed in court. Only parties in a case with their lawyers may enter the court room, when the specific case is called. Judges and magistrates should be flexible in granting adjournments during this period. Judges and magistrates should grant long adjournments in matters which do not require immediate resolution. Finally, public access to registries and courtrooms was substantially limited, and this situation was aggravated by the absence of an effective system of electronic filing of pleadings and other procedural documents.

45.  The non-exemption of lawyers from the lockdown rules (see Part II.B. above) raises a fundamental question about access to justice and legal representation. The right to counsel for persons detained or being tried under lockdown rules is a non-derogable human right, even in situations when a state of emergency has been declared.

46.  Furthermore, lockdown rules affected access to justice. The timelines for filing some court processes such as interlocutory appeals, applications for review, and applications for judicial review are rigid and, in some cases, not subject to any extension. Lockdown rules prevented lawyers and their clerks or litigants from filing court processes at the registries of the courts and no special arrangements were put in place to enable the filing of emergency or time-bound processes. Potentially, this had serious implications for the right to counsel and to access the courts.

47.  The conduct and supervision of all public elections and referenda in Ghana is handled by the Electoral Commission, as established under the 1992 Constitution. Article 51 of the Constitution provides that the Electoral Commission, when exercising its functions, may make provision for voting by proxy and special voting. Article 49(1) and (2) of the Constitution provide that the process of vote in any Ghanaian public election or referendum is by secret ballot, which is to be counted and recorded at the close of the poll by the presiding officer in the presence of the candidates or their representatives and their polling agents.

48.  In Ghana, political campaigns are the primary mechanisms for political parties and candidates to engage with citizens, presenting to them their policies and manifestos. Because of Covid19, the usual big rallies, party conventions, door-to-door campaign activities, fundraising events, town hall meetings, and campaign offices were cancelled or abandoned. Following the ban on public gatherings in the wake of the Covid-19 pandemic in Ghana, the NPP suspended its planned parliamentary primary elections—due to take place on 25 April 2020—for an indefinite period, though elections were ultimately held later that year.⁵⁷ The launch of manifestos by the two biggest political parties in Ghana were done remotely, as there was still a ban on social gathering.

49.  Further, the electoral laws of Ghana specifically provide that the nomination form of presidential candidates shall be in quadruplicate and shall be delivered personally by the presidential candidate or authorised persons between 9am and 12pm or 2pm and 5pm on or before the nomination day.⁵⁸ The process of submitting nomination forms to the Electoral Commission is usually done in the company of a large crowd consisting of party officials and members. This increases the risk of Covid-19 transmission.

50.  The outbreak of the pandemic meant that campaigns could no longer take place in their normal format. Traditional media—such as radio, TV, and print—and online outlets have become the primary mode for conducting electoral campaigns. This is particularly problematic in Ghana, where accessibility to internet connectivity and electricity, among other issues, remains a challenge. Consequently, the pandemic also had the likely effect of limiting public participation in the electoral process, including voter registration and attendance at political campaigns and rallies. Due to the closure of the borders, some Ghanaians living or trading in neighbouring countries were prevented from taking part in the exercise.

51.  Despite these challenges, the 2020 presidential and parliamentary elections took place as scheduled on 7 December 2020. The Electoral Commission put in place several measures to mitigate Covid-19 infection risks while ensuring that voters were able to exercise their right to vote. To this end, sanitary kits comprising masks, hand-washing facilities, and hand sanitising gel were distributed for both voters and polling staff, and a physical distance rule of one metre was put in place in the voting queues at polling stations.

52.  The outbreak of the Covid-19 pandemic could have discouraged voters from voting and in turn have affected the overall turnout of this election. However, in Ghana, voter turnout in the 2020 presidential elections of 79% was unusually high within the context of the number of registered voters of 17,027,655.⁵⁹ This is commendable, especially as it was feared that there would be a low voter turnout in the elections due to the pandemic.

53.  The Ghana Health Service (GHS) has served as the Government’s scientific advisor on the pandemic. The GHS is a Government body under the authority of the Ministry of Health, with a mandate to provide health services provided by the Government and implement Government policies on healthcare under the control of the Ghana Ministry for Health and its governing Council, the Ghana Health Service Council. Other functions of the GHS include implementing approved national policies for health delivery in Ghana, increasing access to good quality health services, managing prudently resources available for the provision of the health services, establishing effective mechanisms for disease surveillance, prevention, and control in Ghana, and performing any other functions relevant to the promotion, protection, and restoration of health in Ghana. Through its Disease Surveillance Department, the GHS has been providing periodic response management updates on Covid-19 on its website and further published on various online media platforms. Scientific advice from the Ghana Health Service is deliberated upon by the Inter-Ministerial Committee on Covid-19 Response prior to decisions by Government on the nature and scope of measures to be introduced to combat the pandemic.

54.  Ghana has a robust culture of media freedom. The primary barrier to media freedom during the pandemic has been the non-exemption of media practitioners from Covid-19 restrictions.⁶⁰

55.  The Commission on Human Rights and Administrative Justice performs the ombudsman functions in Ghana.⁶¹ The Commission issued a number of reports on the impact of the Covid19 pandemic on human rights.⁶²

56.  As noted above in Part II.B, by EI 61 the Government declared a public health emergency.⁶³ This EI instrument introduced testing and quarantine directives. A person who showed symptoms of Covid-19 was to be tested for Covid-19 and put under quarantine as necessary. A person who entered Ghana was to be mandatorily quarantined for a period of fourteen days, and tested for Covid-19. To avoid the spread of Covid-19 all persons were to take preventative measures including regular handwashing with soap under running water, use of alcohol-based sanitisers, avoiding shaking of hands, covering of mouth and noise with tissue when coughing and sneezing, immediate disposal of tissue and other materials used for covering mouth and noise into a trash bin, maintaining a distance of at least one metre away from a person with fever, cough, sneezing and difficulties in breathing, avoiding close contact with persons showing symptoms of respiratory illness, staying at home when symptoms of fever, cough, and difficulty breathing occur, promptly calling prescribed telephone numbers when necessary, and being physically active, sipping water to keep mouth and throat continuously moist, healthy eating, avoiding stress and taking enough rest and sleep. EI 61 further required that all facilities and establishments were to ensure that social distancing was maintained and enhanced hygiene procedures—including the provision of running water and hand-washing soap, alcohol-based hand sanitisers, and disinfectants—were complied with.

57.  As the pandemic unfolded other measures were public health measures were introduced The Imposition of Restrictions (Coronavirus disease (Covid-19) Pandemic) Instrument 2020 (EI 64) sets out other public health measures by restricting or suspending certain activities. These included restrictions on: public gatherings; conferences; workshops; funerals; festivals; political rallies; sporting events and sporting clubs; private parties and other social gatherings; night clubs, drinking spots and event centres; religious activities in churches, mosques, shrines and at crusades, conventions, pilgrimages, and other religious gatherings; and travel to Ghana. All universities and other tertiary institutions, training institutions, senior high schools, basic schools, public and private schools, nurseries, crèches, and such other schools were closed down. The instrument directed the Ministry of Education in collaboration with the Ministry of Communications to, as far as practicable, run distance learning programmes.

58.  The restrictions imposed by EI 64 had a duration of three weeks, subject to variation or revision as the ‘exigencies of the situation require’.⁶⁴ The instrument was intended to apply to the entire territory of Ghana. Exempted activities or facilities or establishment consisted of: a private burial…of not more than 25 persons in attendance; a service, manufacturing or industrial workplace; a market; an establishment in the nature of (i) a supermarket; (ii) a shopping mall; (iii) a restaurant; (iv) a hotel; or (v) a drinking spot; (d) the security services; and (e) essential services. The instrument defines ‘security services’ to mean: (a) the internal and external intelligence agencies referred to under the Securities and Intelligence Agencies Act, 1996 (Act 526); (b) the Police Service; (c) the Armed Forces; (d) the Prisons Service; (e) the Immigration Service; (f) the National Fire Service; and (g) the Customs Division of the Ghana Revenue Authority. The instrument defines essential services to include: (a) water supply services; (b) electricity supply services; (c) health and hospital services; (d) waste management services; (e) air traffic and civil aviation control services; (f) meteorological services; (g)fire services; (h) air transport services; (i) supply and distribution of fuels; (j) telecommunications services; and (k) public and private commercial transport services.

59.  On 11 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 04) Instrument 2020 (EI 67) was introduced to extend restrictions imposed on public gatherings pursuant to El 64 for a further period of two weeks. On 24 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 06) Instrument 2020 (EI 90) extended the restrictions imposed on public gatherings pursuant to EI 64 for a further period of two weeks, with effect from 27 April 2020. By the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 08) Instrument 2020 (EI 110), made on 8 May 2020, the restrictions imposed on public gatherings pursuant to EI 64 were extended with effect from 11 May 2020 to 31 May 2020.

60.  The range of public health measures taken to address the Covid-19 pandemic were announced and publicized in regular speeches delivered by the President of Ghana. Following public agitations, some of the strict public health measures introduced to tackle the pandemic were relaxed. Initially, all social activities including festivals, workshops, conferences, political rallies—2020 was an election year in Ghana—, religious, and school activities were halted with effect from 16 March 2020.

61.  The state also imposed a three-week partial lockdown on the capital city of Accra and its environs of Tema and Kasoa, as well as Kumasi, the second largest city in the country from 27 March to 19 April 2020. Only essential services were allowed during this period. Restrictions were also placed on the number of people that could ride public transport at a time. These restrictions were lifted after careful consideration of the likelihood of infection of Covid19 through transport.⁶⁵

62.  EI 64 imposed restrictions on travel to Ghana by closing all borders of Ghana, by air, land, and sea to passenger traffic for a period of two weeks. It also imposed mandatory quarantines: ⁶⁶

Any person who entered Ghana on 21 or 22 March 2020 was subject to mandatory quarantine for a period of 14 days and shall be tested for Covid-19, and shall be taken to a designated medical isolation centre for treatment, when the result of the test is positive. In addition, any person who, prior to 21 March 2020, entered Ghana from a country that had recorded 200 or more cases of Covid-19, shall undergo self-quarantine for a minimum of 14 days, in accordance with the guidelines for self-quarantine.

63.  A person who is determined by the relevant health authorities to be unable to undergo satisfactory self-quarantine shall be put under mandatory quarantine by the relevant health authorities. The instrument further provided that a person who shows symptoms of Covid-19 during the period of self-quarantine shall be tested for Covid-19 and where the result of the test is positive, that person shall be taken to a designated medical isolation centre for treatment. Finally, the instrument conferred on the President the power to review or vary the restrictions ‘…in accordance with Subsection 2 of Section 4 of the Imposition of Restrictions Act 2020 (Act 1012)’ where ‘the exigencies of the situation require’.

64.  On 30 March 2020, the Government issued Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 02) Instrument 2020 (EI 65), introducing other measures to complement the measures introduced under EI 64. By EI 65, further restrictions were imposed on movement outside the place of abode of persons resident within specified areas⁶⁷ except movements to: (a) obtain food, medicine, and water; (b) undertake banking transactions; (c) to use public toilet facilities; or (d) to pay for utility services. The restrictions introduced by EI 65 also applied to inter-city movement of vehicles and aircraft for private or commercial purposes. All intra-city passenger vehicles were to reduce the number of passengers in order to observe specified social distancing and appropriate enhanced hygiene protocols. Additionally, a rider of a motorbike shall not carry a pillion rider. The measures were introduced for a period of two weeks.

65.  EI 65 exempted certain categories of persons, facilities, and vehicles, including: members of the security services; vehicles and aircraft providing essential services and the transportation of goods, supplies, and cargo to and within Ghana; and persons involved in the production, processing, distribution, and sale of food and food-related items who may operate during the period of the restrictions.

66.  On 3 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 02) Instrument 2020 (EI 66) was issued to extend restrictions on travel to Ghana. By this EI, with effect from midnight on 5 April 2020 the borders of Ghana by air, land, and sea were closed to human traffic for a further period of two weeks, with the transportation of goods, supplies, and cargo to Ghana being exempted from the provisions of the EI. On 17 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 05) Instrument 2020 (EI 68) was issued to further extend restrictions on travel to Ghana. By this EI, with effect from 20 April 2020 the borders of Ghana by air, land, and sea were closed to human traffic for a further period of two weeks. An exemption was made for the transportation of goods, supplies, and cargo to Ghana. By the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 07) Instrument 2020 (EI 109) on 2 May 2020, the closure of all borders of Ghana, by air, land, and sea, to human traffic was extended until 31 May 2020, with the transportation of goods, supplies, and cargo to Ghana being exempted.

67.  Some activities and facilities were exempted under EI 134, enacted on 1 June 2020. The closure of borders of Ghana did not apply to transportation of goods, supplies, and cargo to and from Ghana; evacuation of Ghana residents stranded abroad; and exemptions granted by the Ghana Civil Aviation Authority.

68.  EI 64 restricted or suspended certain activities. These included restrictions on public gatherings; conferences; workshops; funerals; festivals; political rallies; sporting events and sporting clubs; private parties and other social gatherings; night clubs, drinking spots and event centres; religious activities in churches, mosques, shrines and at crusades, conventions, pilgrimages, and other religious gatherings; and travel to Ghana. All universities and other tertiary institutions, training institutions, senior high schools, basic schools, public and private schools, nurseries, crèches, and such other schools were closed down. The instrument directed the Ministry of Education, in collaboration with the Ministry of Communications, to, as far as practicable, run distance learning programmes. Subsequently, religious services resumed on 5 June 2020, with restrictions; (a) ensure that no more than 25 percent of the attendance of the church, mosque or other religious body, with a maximum number of 100 congregants, shall be present at each service; (b) implement a mandatory one metre rule of social distancing between congregants; (c) ensure that each congregant wears a mask at all times in the church or mosque or other place of worship; (d) maintain a register of names and contact details of all congregants; (e) provide hand washing facilities and sanitisers for all persons; and (f) limit the duration of each service to a maximum of one hour.⁶⁸ Other events such as weddings, funerals, workshops, and conferences could also resume as long as the upper limit of individuals present at these events was 100.

69.  The restrictions imposed by EI 64 lasted three weeks, subject to variation or revision as the ‘exigencies of the situation require’.⁶⁹ The instrument was to apply to the entire territory of Ghana. Exempted activities or facilities or establishment consisted of: a private burial …of not more than 25 persons in attendance; a service, manufacturing, or industrial workplace; a market; an establishment in the nature of (i) a supermarket; (ii) a shopping mall; (iii) a restaurant; (iv) a hotel; or (v) a drinking spot; (d) the security services; and (e) essential services. The instrument defines ‘security services’ to mean (a) the internal and external intelligence agencies referred to under the Securities and Intelligence Agencies Act 1996 (Act 526); (b) the Police Service; (c) the Armed Forces; (d) the Prisons Service; (e) the Immigration Service; (f) the National Fire Service; and (g) the Customs Division of the Ghana Revenue Authority. The instrument defines essential services to include ‘(a) water supply services; (b) electricity supply services; (c) health and hospital services; (d) waste management services; (e) air traffic and civil aviation control services; (f) meteorological services; (g) fire services; (h) air transport services; (i) supply and distribution of fuels; (j) telecommunications services; and (k) public and private commercial transport services’.

70.  On 11 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 04) Instrument 2020 (EI 67) was introduced to extend restrictions imposed on public gatherings pursuant to El 64 for a further period of two weeks. On 24 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 06) Instrument 2020 (EI 90) extended restrictions imposed on public gatherings pursuant to EI 64 for a further period of two weeks, with effect from Monday 27 April 2020. The Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 08) Instrument 2020 (EI 110) of 8 May 2020 extended the restrictions imposed on public gatherings pursuant to EI 64 from 11 May 2020 to 31 May 2020.

71.  Through EI 134, made on 1 June 2020, further restrictions were imposed on public gatherings, including: (i) sporting events; (ii) nightclubs; (iii) cinemas and movie houses; (iv) drinking spots, pubs and bars including hotel bars; (v) beaches; (vi) festivals; (vii) funerals; (viii) political rallies; and (ix) large religious gatherings such as crusades, pilgrimages, and conventions.⁷⁰ All public gatherings set out set out above were suspended until 31 July 2020.

72.  Under EI 64, all universities and other tertiary institutions, training institutions, senior high schools, basic schools, public and private schools, nurseries, crèches, and such other schools were closed down. The instrument directed the Ministry of Education, in collaboration with the Ministry of Communications, to, as far as practicable run distance learning programmes.

73.  EI 134, passed on 1 June 2020, provided that all educational institutions including universities, other tertiary institutions, training institutions, senior high schools, junior high schools, primary schools, kindergartens, nurseries, crèches and Sunday schools in churches were closed. Universities, other tertiary or training institutions, senior high schools and junior high schools may open and operate to accommodate the following students on the specified dates:

(a) final year students in universities or other tertiary or training institutions may return on 15 June 2020 to resume classes ahead of the conduct of their exit exams; (b) final year students in senior high schools may return on 22 June 2020 to resume classes ahead of the conduct of their exit exams; (c) gold track students in their second year of senior high school may return on 22 June 2020 to resume classes and complete their first semester coursework; and (d) final year students in junior high schools may return on 29 June 2020 to resume classes ahead of the conduct of their exit exams.

1. (3)  The Ministry of Education, and the heads of public and private institutions shall, prior to the return of the specified students, fumigate and disinfect their respective institutions.⁷¹

74.  The law further provided that, upon the return of students to their educational institutions, there shall be: (a) no more than half the class size in classes of final year students in universities or other tertiary or training institutions; (b) no more than 25 students in classes of final year students in senior high schools; (c) no more than 30 students in classes of final year students in junior high schools; (d) social distancing maintained between students, teaching and non-teaching staff, and among students, and teaching and non-teaching staff of the educational institutions; (e) strict compliance with enhanced hygiene protocols, including the provision of running water, hand washing soap, alcohol-based hand sanitisers and disinfectants; and (f) wearing of re-usable masks by students, teaching and non-teaching staff, provided by the Ministry of Education.⁷²

75.  EI 64 provided that, where an activity, facility, or establishment is exempted, there shall be: (a) social distancing maintained between patrons and staff, and among staff of the facility or establishment; and (b) compliance with enhanced hygiene procedures, including the provision of running water and hand washing soap, alcohol-based hand sanitisers, and disinfectants. Social distancing is defined by the instrument to include ‘maintaining a physical distance of one metre away from a person or avoiding direct contact with a person or object in a public place during an epidemic, to minimise exposure and reduce the transmission of infection and covers the following measures: (a) mandatory quarantine; (b) self-isolation; (c) protective self-separation; and (d) voluntary avoidance of crowded places’.

76.  The instrument further required the Ministry of Transport to work with public and private commercial transport services to ensure enhanced hygienic conditions in all vehicles and terminals, by providing, among others, running water and hand washing soap, alcohol-based hand sanitisers, and disinfectants. The Ministry of Local Government and Rural Development, in collaboration with the metropolitan, municipal and district assemblies, was tasked to coordinate measures to enhance conditions of hygiene in all markets. ⁷³

77.  EI 134, passed on 1 June 2020, provided that where a church, mosque, or other religious body intends to open its premises to its members, it shall, prior to opening its premises, work with designated regulatory bodies to (a) disinfect; (b) fumigate; (c) put in place the requisite logistics needed to guarantee safe opening and operation; and (d) undertake dry test runs of the protocols social and physical distancing protocols.

78.  In addition, subject to the protocols, a restaurant may provide seated service in addition to takeout and delivery services and a ‘chop-bar’ (an eating joint) may provide take-out and delivery services only. Nonetheless, the restrictions imposed on public gatherings did not apply to (a) conferences; (b) workshops; (c) weddings; (d) private burials; (e) political activities; and (f) individual training and non-contact sports except that protocols stated below applied to all public gatherings exempted. Other restrictions to be observed consisted of (a) social distancing between patrons and all staff, and among staff of the institution, facility, or establishment; (b) strict compliance with enhanced hygiene protocols, including the provision of running water, hand washing soap, alcohol-based hand sanitisers and disinfectants; (c) wearing of masks by all patrons and staff of the institution, facility, or establishment; (d) maintenance of a register of names and contact details of all patrons; and (e) use of well-ventilated venues. The restrictions introduced by EI 134 did not apply to constitutional or statutory bodies performing constitutional or statutory functions, provided, however, that they shall be required to maintain prescribed social distancing and hygiene protocols.⁷⁴

79.  Pursuant to EI 164, made on 15 June 2020, the wearing of face coverings was made mandatory. A person shall wear a face mask, face shield, or any other face covering that covers his or her nose and mouth completely, when that person is in a public place or leaving or returning to his or her place of abode. The law applied to the entire territory of Ghana for a period of not more than three months. The police were mandated to undertake random checks to ensure enforcement and compliance with the mandatory wearing of face coverings. A person failing to comply with the law was subject to the sanctions specified under Section 6 of the IRA Act.⁷⁵

80.  Entry into Ghana was only allowed for Ghanaians from 16 to 22 March 2020. These individuals were quarantined for 14 days at the state’s expense, tested, and allowed to go home when their results were negative. By 22 March 2020, the land, sea, and air borders were closed to all individuals, whether Ghanaian or not. The air borders remained closed until 1 September 2020, when they were reopened with a new set of entry requirements. In addition to passports, visas (where necessary), and yellow fever vaccinations, entry into Ghana by air is now only possible if travellers have a negative PCR test that was taken less than 72 hours prior to travel from their country of origin as well as a negative antigen test taken at the airport in Ghana.⁷⁶ A non-Ghanaian individual who tests positive for Covid-19 upon arrival in Ghana is mandatorily quarantined and treated for a week at the traveller’s expense. These individuals will also be tested three days later at their own expense and a week later at their own expense if they still tested positive on day three. Ghanaians are taken to the isolation centre and treated at the state’s expense. The land and sea borders remain closed, although anecdotal evidence suggests that individuals are entering Ghana by land

81.  Ghana reopened it air borders on 1 September 2020 with a new set of entry requirements. In addition to passports, visas (where necessary), and yellow fever vaccinations, entry into Ghana by air is now only possible if travellers have a negative PCR test that was taken less than 72 hours prior to travel from their country of origin, as well as a negative antigen test taken at the airport in Ghana.⁷⁷ A non-Ghanaian individual who tests positive for Covid-19 upon arrival in Ghana is mandatorily quarantined and treated for a week at the traveller’s expense. These individuals will also be tested three days later at their own expense and a week later at their own expense if they still tested positive on day three. Ghanaians are taken to the isolation centre and treated at the state’s expense. The land and sea borders remain closed, although anecdotal evidence suggests that individuals are entering Ghana by land. Ghana also implements an ongoing regime of nationwide vaccinations with regular updates provided by the Ghana Health Service. ⁷⁸

82.  EI 65, passed on 30 March 2020, further provided for contact tracing and testing. It required a person who tested positive for Covid-19 to provide all relevant information to the health authorities to enable contact tracing of persons who have come into contact with that person. Furthermore, a person identified through contact tracing to have come into contact with an infected person shall be tested for Covid-19, and where the result of the test is positive that person shall be taken to a designated medical isolation centre for treatment. On 11 April 2020, the Imposition of Restrictions (Coronavirus Disease (Covid-19) Pandemic) (No 04) Instrument 2020 (EI 67) was introduced to extend restrictions imposed on movement outside the place of abode of persons resident within the areas specified in El 65 for a further period of one week.

83.  EI 134, passed on 1 June 2020, provided that a person who tested positive for Covid-19 shall provide all relevant information to the health authorities to enable contact tracing of persons who have come into contact with that person. Again, a person, who is identified through contact tracing to have come into contact with an infected person shall be tested for Covid-19, and where the result of the test is positive, that person shall be taken to a designated medical isolation centre for treatment.

84.  Another EI passed on 23 March 2020 was EI 63, the Emergency Communications System Instrument.⁷⁹ This Instrument allowed for the establishment of an emergency communications system which made it possible for the state to collect the personal information of all mobile phone subscribers and then trace all contacts of persons suspected of or actually infected by Covid-19 and identify places visited by such persons. The Covid-19 tracker app was launched by the Vice-President of the Republic of Ghana on 13 April 20210. A private legal practitioner contested this Instrument soon after it was published, arguing that it violated privacy rules. On 22 July 2021, the High Court in Accra ordered the Government to stop collecting personal information of mobile phone subscribers.⁸⁰

85.  The Government established Covid-19 isolation centres in parts of the country. Additionally, the Government set up the Ghana Infectious Disease Center, which is a new 100-bed hospital in response to the COVID-19 pandemic. No special homes or facilities were specifically designated for the care of the elderly.⁸¹

86.  The Ministry of Education and heads of public and private educational and training institutions were tasked by EI 134 to enforce the restrictions and protocols in educational and training institutions. For the public gatherings exempted under EI 134, the owners and managers of public events, facilities, or establishments were to ensure enforcement and strict adherence to all applicable protocols. EI 134 further provided that a designated regulatory body shall, with the assistance of the police, undertake random checks to ensure enforcement and compliance with all protocols. The law further provided that an institution, facility, or establishment that failed to comply with the protocols may be closed down for non-compliance and the relevant sanctions applied.

87.  The IRA Act has due process concerns, addressed above in Part II.B.

88.  Moreover, the sanction regime under the IRA appears to be discriminatory and anti-poor. As previously observed in Part II.B above, by Section 6 of the Act it is a criminal offence punishable by ‘a fine of not less than one thousand penalty units (GHS 12,000) and not more than five thousand penalty units (GHS 60,000) or to a term of imprisonment of not less than four years and not more than ten years or to both if a person fails to comply with a restriction imposed under the Executive Instrument issued by the President’.⁸² The only way for a convicted person to escape a jail term is to pay a fine of at least GHS 12,000. Many poor Ghanaians (who are more likely to infringe these restrictions for a variety of reasons) are unlikely to be able to pay fines of at least GHS 12000 in a country where the daily minimum wage is GHS 11.82 (approximately USD 2.03).⁸³

89.  Generally, compliance with the measures introduced to tackle the pandemic was mixed. Anecdotal evidence would suggest there was substantial compliance with the imposition of curfews, lock-downs, hand washing under running water, use of alcohol-based sanitizers, and wearing of masks, etc. However, there is also evidence that there was non-compliance with some public health measured adopted to fight the pandemic. For instance, in a study of 850 public buses, a fifth of them had less than three people wearing face masks.⁸⁴

Prof Kofi Quashigah, University of Ghana

Prof Akosua Adarkwah, University of Ghana

Dr Abdul Baasit Aziz-Bamba, University of Ghana