Re Akoto and Seven others

Prepared by Group A

Level: Supreme Court

Fact of the Case:

-Baffour Osei Akoto who was a senior linguist to Asantehene at the time and seven others.
-They were arrested and detained on Preventive Detection Act (PDA). Parliament passed the
Preventive Detention Act in 1958. This law gave the President the power to arrest and
detain any person without trial and imprison him for, at least, five years to prevent the
person detained from acting in a manner prejudicial to the state.
-Re-Akoto and the seven others offence was that they acted in a manner that was
prejudicial to the security of the state at the time. On the 11 th November 1959, an order was
issued for their arrest and detention.
-They appealed at the High Court on a writ of Habeas Corpus ad subjicendum with seven (7)
main points, namely:
(1) The learned judge acted in excess of jurisdiction in refusing the application without
making an order for a formal return.
(2) By virtue of the Habeas Corpus Act of 1816 the court is required to enquire into the truth
of the facts contained in "The Grounds" upon which the Governor-General was satisfied that
the order was necessary to prevent the appellants from acting in a manner prejudicial to the
security of the state.
(3) The Minister of Interior who signed the order for and on behalf of the Governor General
was actuated by malice.
(4) The grounds upon which the appellants were detained do not fall within the ambit of the
expression. "Acts prejudicial to the security of the state".
(5) By virtue of section 3 of the Criminal Procedure Code, Cap. 10 of the Laws of the Gold
Coast (1951 Rev.) now section 1 of the Criminal Procedure Code 1960 (Act 30), the
Governor-General is precluded from exercising the powers conferred on him under the
Preventive Detention Act, to make an order for the arrest and detention of the appellants
without trial except in accordance with the Criminal Procedure Code.
(6) The Preventive Detention Act, 1958, by virtue of which the appellants were detained, is
in excess of the powers conferred on Parliament by the Constitution of the Republic of
Ghana with respect to article 13 (1) of the Constitution, or is contrary to the solemn
declaration of fundamental principles made by the President on assumption of office.
(7) The Preventive Detention Act not having been passed upon a declaration of emergency
is in violation of the Constitution of the Republic of Ghana.

However, their application was refused.

(1) the affidavits disclosed all the facts relevant for determining whether the writ should
issue or not. Rule

14 of Order 59 does not oblige a judge to make a formal return in every case. He is entitled
to dispose of the case on the affidavits. Dicta of Goddard, L.J. in R. v. Home Secretary, ex
parte Greene [1941] 3 All E.R. 104 at p. 123 applied;

(2) although the Habeas Corpus Act, 1816, is a statute of general application, it does not
apply to this case because the Act under which the appellants were detained vests plenary
discretion in the Governor- General (now the President) if satisfied that such an order is
necessary. Upon production of the order the only question which has to be considered is its
legality. If the order is lawful the detention is lawful: Liversidge v. Anderson [1942] A.C. 206,
H.L. followed;

(3) the court can only look into allegations of bad faith by high officers of the state if there is
positive evidence, which is singularly absent in this case: Nakkuda Ali v. M.F. De S. Jayarakne
[1951] A.C. 66 at p. 77, P.C. cited;

(4) the term "security of the state" is not limited to the defence of Ghana against a foreign
power, and the powers of the Preventive Detention Act may be invoked where the basis of
law is sought to be undermined and attempts are being made to cause disruption in the
normal functioning of government; [p.525]

(5) the Preventive Detention Act is to be distinguished from the Criminal Code, (Act 29), in
that the code concerns itself with acts already committed whereas the Act is aimed at
preventing the future commission of acts prejudicial to the safety of the state;

(6) Article 13 (1) of the Constitution imposes only a moral obligation upon the President of
Ghana. Throughout the declaration, which is similar to the Coronation Oath of the Queen of
England, the word "should" is used and not "shall". The declaration does not constitute a bill
of rights and does not create legal obligations enforceable in a court of law;

(7) the effect of Article 20 of the Constitution is that Parliament is sovereign and its
legislative powers are qualified only with respect to the entrenched Articles thereof;

(8) the Preventive Detention Act, 1958, is therefore not contrary to the Constitution and
Parliament is competent to pass such an act even in peace time.

The supreme court held among other things that the PDA was not contrary to the
Constitution and that, Parliament has power to pass such a law in peace time. The appeal
was then dismissed.

Commentary:
-The case was criticized as not given room to fundamental Human Rights.
-A big constitutional case that has shaped our 1992 Constitution
-The PDA was passed by Parliament at the time
-Re Akoto is a symptom of bad law
-Constitutional development and fundamental human rights
-Incarcerating people without due process of law
-They were in prison until after the 1966 Coup when they were released.

Reference: