REPUBLIC v. ASSISTANT DIRECTOR OF PRISONS; EX PARTE DAGOMBA AND OTHERS

JUDGMENT OF AGYEPONG J.

The applicants are detainees incarcerated in Nsawam Medium Security Prisons under the Preventive Custody Decree, 1972 (N.R.C.D. 2), s. 2, which provides:

"2. The National Redemption Council may, by executive instrument authorise the arrest and detention of any other person in respect of whom they are satisfied that it is in the interest of national security or in the interest of the safety of the person so to do and any such instrument may amend or repeal the Schedule to this Decree."

By section 1 of the said Decree certain named persons, being political figures of the civilian government that was overthrown by the National Redemption Council on 13 January 1972, were to be taken into protective custody. While the detention of the people in section 1 of the Decree was geared towards the stabilisation of the new military government, it is apparent from section 2 that the detention of the people under that section was not geared towards the stabilisation of the new military government.

The applicants challenge the legality of their detention and in answer thereto the respondent has produced executive instruments promulgated by the Supreme Military Council (formerly the National Redemption Council) under section 2 of N.R.C.D. 2 covering the detention of the applicants. (The court has already ordered the release of 175 of the applicants whose detention was not backed by executive instruments.) The applicants say the mere production of the executive instruments before the court is not sufficient justification in law for the detention of the applicants; the return is woefully inadequate; and. it must contain the reasons for which the Supreme Military Council is satisfied that it is in the interest of national security and in the interest of his safety that each [p.4] applicant has been detained; the applicants submit that the court has power to go behind the statement of satisfaction to see if there existed facts upon which the satisfaction could properly be based, relying on State v. General Officer Commanding the Ghana Army; Ex parte Braimah [1967] G.L.R. 192, C.A. (full bench) where the court called for, and inquired into, the reasons for the continued detention of the applicant after the expiry of the 28 days initially provided by the Criminal Procedure Code, 1960 (Act 30), s. 15 as amended by the Criminal Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93).

Learned counsel for the applicants, Nana Akufo-Addo, rightly remind