Of all the exploits of democracy, the most fundamental, I suppose, is the rule that forbids the punishment of persons outside the province of the law. As a people who believe in the rule of law, our deepest revulsion must not only be against the commission of crime per se, but also against the use of means not sanctioned by the law to punish people in a purported attempt to enforce the law. In this lies the whole essence of the rule of law. Extra-legal punishment is any form of punishment that is not permitted by law, and therefore falls outside the province of the law.
Since the outbreak of the COVID 19 pandemic, the government of Ghana has resorted to various approaches to curb and, if possible, prevent the spread of the pandemic. The government’s first legal approach to control the spread of the pandemic was the enactment of The Imposition of Restrictions Act, 2020 (Act 1012). Pursuant to this Act, the government has made some Executive Instruments (EIs) to impose specific restrictions and measures to achieve the stated purpose of Act 1012. The most recent EI is the Imposition of Restrictions (Coronavirus Disease (Covid 19) Pandemic (No. 10) Instrument, 2020 (E.I. 164). E.I. 164 makes it a criminal offence for a person to be in a public place without wearing a face mask, face shield or any other face covering that covers the nose and mouth completely. Other protocols are regular hand washing, use of hand sanitizers and observing appropriate social distancing in public places.
The law on COVID 19 specifically mandates the police and other security agencies to strictly enforce compliance with the protocols, and persons who violate the protocols are liable to be prosecuted. In the face of clear provisions of the law, law enforcement agencies have been subjecting members of the public to brutalities under the guise of enforcing COVID 19 protocols. The purpose of this article is to explore the province of the punishments permitted by the COVID 19 laws, whilst condemning the use of extra-legal force and brutalities by the police on persons who violate the protocols.
Justifiable punishment for violating COVID 19 protocols
It must be emphasized that the COVID 19 protocols have the force and nature of penal law. Act 1012 is a penal legislation, and any violation of the protocols instituted pursuant to the Act constitutes a criminal offence. The parent Act of Parliament that provides the basis for all the COVID 19 protocols is Act 1012. All the Executive Instruments on COVID 19 are made pursuant to Act 1012. Under section 6 of Act 1012, punishment for violation of any of the protocols is a fine of less than one thousand penalty units and not more than five thousand penalty units or a term of imprisonment of not less than four years and not more than ten years or both.
Being a penal legislation, the law on COVID 19 must be enforced according to criminal procedure. Consequently, persons who violate the protocols are liable to be arrested, prosecuted and punished accordingly. The COVID 19 protocols are not mere Executive stipulations; they are law to be observed and enforced.
Lawlessness in enforcement of the law
The canker of brutalities of citizens by law enforcement officers is rapidly eating on the vitals of our democracy including the rule of law. Much as the fight against COVID 19 requires our collective efforts, our approach towards it must be devoid of illegalities of any form and shape. John Rawls once said:
“Justice is the first virtue of social institutions… Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”
The wisdom in this statement cannot be impeached. The alarming rate at which the coronavirus is spreading and tearing societies apart is no justifiable basis for riding roughshod over the rights and liberties of individuals. The law must be enforced within acceptable limits imposed by law.
Following the enactment of the laws on COVID 19 and the subsequent imposition of restrictions and protocols, there have been regrettable trends of brutalities of non-complying members of the public by law enforcement officers. On daily basis, members of the COVID 19 task force are seen on our principal streets subjecting members of the public who fail to observe the protocols to all forms of physical abuses and torture. Whilst some people are publicly flogged, others are made to do such menial activities as weeding, desilting gutters, sweeping the streets, lying on the ground for hours, and so forth. There have been instances where offenders were made to carry heavy stones, bags of cement and other heavy objects. These are extra-legal forms of punishment as they fall outside the province of the law. The law on COVID 19 forms part of the criminal law of Ghana and therefore it cannot be enforced illegally.
The only legally permissible punishment for violating any of the COVID 19 protocols is either a fine or imprisonment or both. Beyond this, the law imposes no liability for violation. Under our law, it is only a court exercising criminal jurisdiction that can impose punishment for a criminal offence. This is borne out of the use of the words “liable on summary conviction” in section 6 of Act 1012. Before a person may be punished for violating any of the COVID 19 protocols, that person must be arrested, charged with a stated offence, prosecuted and convicted. Police beatings, brutalities and other forms of physical torture are unknown to the criminal law. Military and police officers enforcing the COVID 19 protocols are legally required to arrest offenders and prosecute them. It is only a court of competent jurisdiction that can punish a person who violate the protocols. Any other punishment not expressly sanctioned by law is extra-legal and therefore unlawful.
The law does not give the COVID 19 task force power to beat up, brutalise or manhandle persons who act contrary to the protocols. Indeed, it is unlawful for a military or police officer to beat up or physically abuse or manhandle a criminal suspect. A person may lawfully resist any such illegality by fighting back or using any reasonable means to defend himself. Law enforcement must be governed by rules of procedure and due process. Our system of law does not only frown upon the commission of crime; our law equally frowns upon the abuse of the rights and liberties of even convicted persons.
Beating of criminal suspects, subjecting them to physical pain and placing unnecessary fetters on them, all fall outside acceptable limits of law enforcement. Law is said to have been enforced when a suspected criminal is brought to the court on a criminal charge, and where he is found guilty, a criminal sanction is imposed according to law. In a free society, law enforcement cannot involve abuse of the rule of law itself, no matter how minimal.
Non-compliance with law is a universal feature of all legal systems, but the abuse of State power in the enforcement of law is not a mark of democracy. In its bid to control and prevent the spread of the Covid 19 pandemic, the State must use legitimate means and approaches. Our civilization does not only concern crime control; it also involves legitimate use of State power on the citizenry. The law will fail to protect society if it fails to condemn illegalities in law enforcement.
Indeed, no one can underestimate the adverse impact of the coronavirus pandemic. Every facet of our national life has been egregiously affected by the pandemic. Whilst everyone is expected to strictly observe the health protocols to curb the spread of the pandemic, it is equally important for law enforcement officers to act within the parameters of the law. The COVID 19 protocols must be enforced lawfully. It is unlawful for security officers tasked to enforce the COVID 19 protocols to resort to extra-judicial measures such as beatings, brutalities or torture of offenders. In a democracy, law is best enforced when due process is observed. Let the law be enforced lawfully.
The writer is with Adom Legal Consult,4th Floor, Cocoa House Sunyani
Email: [email protected]