Why the MoU with the USA is unconstitutional

By Francis Asare OWUSU

 “It is an MOU at this stage. Just an understanding. MOU’s are not ratified… when this is elevated beyond an MOU and it is a full agreement; we will go to Parliament under Article 75 and have it ratified. At this point, it is just a loose understanding…we sought the advice of the Attorney General (AG) and his counterpart, the Attorney General of USA who also said it is an MOU and MOU’s do not require ratification…we are working with the AG’s advice and the AG’s advice is that when this is elevated to an agreement, it can be ratified”.

The above is the statement made by the Minister of Foreign Affairs, Samuel Okudzeto Ablakwa when he appeared on the Point of View programmed aired on Channel One Television on 17^th September, 2025 when answering a question on the deportation of West African Nationals from the USA to Ghana by the US government.

From the minister’s statement, the government did not need to seek the approval of Parliament before accepting the deported West African Nationals from the USA because in the words of the minister;

“it is just a loose understanding”

Thus what the minister is saying is this agreement is not an agreement in its strict sense which would have required Parliamentary approval under Article 75 of the 1992 constitution of Ghana.

Background

In 2017, the Supreme Court in the case of Margaret Banful and another v. The Attorney General and another writ no. J1/7/2016 dated 22^nd July 2017 made a determination regarding Article 75 of the constitution. In that case the plaintiffs (Margaret Banful and another) sued the defendants (Attorney General and another) for a declaration that the decision of the President of Ghana in agreeing to the transfer of Mahmud Umar Muhammad Bin Atef and Khalid Muhammad Salih Al-Dhuby (both citizens of Yemen and had formerly been held in detention by the USA at its facilities at Guantanamo Bay) into Ghana be declared as unconstitutional because it required the ratification by an Act of Parliament or a resolution supported by the votes of more than one-half of all the members of Parliament.

The court in its judgment agreed with the plaintiffs and thus declared the said agreement unconstitutional because in the words of the court;

“it required the ratification by an Act of Parliament or a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament and by virtue of the failure to obtain such ratification the agreement is unconstitutional”.

In the stated case above, the defendants in extension the argument of the Government was that;

“the said Article (Article 75) does not cover every from of agreement that Ghana might enter into with another state or non-state actor as it covers only treaties, agreements and conventions in more solemn form than mere diplomatic notes and therefore no need for Parliamentary ratification”.

The government further argued that;

“the agreement that resulted in the arrival of the said two persons in Ghana are notes verbales, which are “purely administrative and confidential in nature” and are not to be approved by Parliament and are therefore not caught under Article 75………”

Therefore, flowing from above, the Government believed and was convinced at that time that Article 75 covers only treaties, agreement and conventions in more solemn form and also they were in the form of notes verbales which are purely administrative and confidential in nature and as such are not caught under Article 75.

Again the Government sought to persuade the court that in interpreting Article 75, the court must make a distinction between an agreement intended to create legal liability and one which although made between two state parties is not intended to create legally binding obligations and rights.

The current MoU between Ghana and USA

President Mahama at his press encounter on Wednesday 10^th September, 2025 at Accra reported by Thomas Naadi of BBC Africa, the president stated;

“we were approached by the US to accept third-party nationals who were being removed from the US and we agreed with them that West African nationals were acceptable”.

He further added that fourteen (14) persons had already arrived in the country including several Nigerians and a Gambian and that Ghana had already facilitated the return of the Nigerians to their country by bus while the Gambian was still being assisted to return home.

The foreign minister in his interview also indicated that apart from the fourteen (14) persons who had been deported into the country, forty (40) more persons were to arrive from the US. Again the President added which was also reiterated by the minister during his interview that there is a free movement protocol among the ECOWAS bloc that allows citizens of member states to enter and reside in other West African countries without a visa for up to 90 days and thus by extension those deported nationals can enter and reside in Ghana without visa for 90 days.

Is Ghana’s MoU with USA an agreement under article 75 of the constitution

Section 10(4) of the Interpretation Act, 2009 (Act 792) provides;

(4)        Without prejudice to any other provision of this section, a court shall construe or interpret a provision of the Constitution or any other law in a manner

(a)        that promotes the rule of law and the values of good governance,

(b)        that advances human rights and fundamental freedoms,

(c)         that permits the creative development of the provisions of the Constitution and the laws of Ghana and

(d)        that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana.

Section 58(1) and (2) of the 1992 Constitution stipulates;

• The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the provisions of this Constitution.
• The executive authority of Ghana shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by this Constitution.

Article 75 of the same constitution also reads;

• The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.
• A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by-
• Act of Parliament; or
• A resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.

The Supreme Court per Article 130(1) (a) (b) has exclusive original jurisdiction in matters relating to the enforcement or interpretation of the  Constitution and in matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under the Constitution.

Again, the Supreme Court in its judgment in the Margaret Banful case  interpreted Article 75 of the Constitution as not only limited to treaties, agreements or conventions alone but any document that the Government of Ghana binds the Republic of Ghana to certain obligations in relation to another country or group of countries also falls under Article 75 and shall be subject to ratification by an Act of Parliament or a resolution of Parliament supported by the votes of more than one-half of all members of Parliament. In that judgment, the court per Justice Sophia Akuffo (the then Chief Justice) held;

“the language of Article 75 is perfectly clear. The Article forms part of the set of provisions governing the role of the Executive arm of government in Ghana’s international relations. The scope of the Article deals with treaties in general (c.f. the side notes) and the body of the text makes reference to ‘treaties, agreements and conventions’. It is also clear that the instruments referred to relate to Ghana’s international relations with other countries or groups of countries and the Article requires that such instruments must be ratified by Parliament. The Constitution makes no mention of any formal distinctions that are dependent on the formality with which such an instrument is formatted or brought into being. From the aforementioned principles of constitutional interpretation in Ghana, there is no doubt that where, by various forms of documentation, the Government of Ghana binds the Republic of Ghana to certain obligations in relation to another country or group of countries, an international agreement comes into existence. Taking into account the substance of Exhibit A, we are in no doubt that, despite the form in which it has been drafted and the text couched, it is intended to create an obligation on the part of Ghana to the USA whereby, inter alia, Ghana binds herself to ‘receive’ and ‘resettle’ the said two persons, and assure that, ‘for at least two years, or longer if warranted by circumstances’ these persons kept under such conditions (i.e monitored and surveilled) as would accord with ‘the security assurances in this agreement to be implemented’.

Thus from the above, it is clear what the foreign minister refers to as an MOU falls under the broad category of treaties, agreements or conventions that Ghana has with other states and as such falls under the ambit of Article 75 of the 1992 constitution.

In the interview on Channel One’s point of view, the minister also stated, “I have inherited so many MOU’s that did not go to Parliament for verification”.

I presume the minister added this to bolster his argument, but we must avert our minds to the case of Tuffour v. Attorney General [1980] GLR 637 @656 where Justice Sowah stated;

“No person can make lawful what the constitution says is unlawful. No person can make unlawful what the constitution says is lawful. The conduct must conform to due process of law as laid down in the fundamental law of the land or it is unlawful and invalid”.

Thus, it is the duty of the Minister of Foreign Affairs to ensure that the MOU’s he claimed to have inherited that did not go through Parliament for ratification are taken through the right process to make them constitutional.

 

The ECOWAS protocol

Article 3(2) of the ECOWAS protocol relating to free movement of persons, residence and establishment provides;

“A citizen of the community visiting any member state for a period not exceeding ninety (90) days shall enter the territory of the member state through the official entry point free of visa requirement. Such citizen shall however, be required to obtain permission for an extension of stay from the appropriate authority if after such entry the citizen has cause to stay for more than ninety (90) days”.

The operative word in this article is a citizen of the community visiting any member state but from the President’s statement at the encounter with the media he stated;

“we were approached by the US to accept third party nationals who were being removed from the US…..”

The question here is can the word visitor be interpreted as people being removed from a country they were previously living in? I think not because a visitor travels on his/her own free will and not under any compulsion or duress. But in the case of these deportees, they are being deported not of their own free will and also they are being deported into countries they have not agreed to be sent to but rather by virtue of an MOU between Ghana and USA, they find themselves in Ghana not as a visitor but as a deportee of another country moving in Ghana and not to talk of the cost of sending them back to their home country and who bears that cost.

Thus the reference to the said ECOWAS Protocol as one of the reasons for accepting them into Ghana is misleading since the protocol uses the word visitor and not deportee.

Finally, per the noscitur a sociis rule (a thing is known from its associates), the word deportee cannot be associated in meaning with the word visitor which is captured in the ECOWAS protocol.

CONCLUSION

Article 2(2) (3) and (4) of the 1992 constitution states;

(2)               of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.

• Any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.
• Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-President, constitute a ground for removal from office under this Constitution.

Therefore, the Government of Ghana in my respectful view must reconsider this MOU again and act appropriately.

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