Mobillah and extra judicial killing in the aftermath of 2004 elections (1)

The recent election in Ghana is being cited as a success for Ghana's future and a model for other struggling democracies on the African continent. The tangible significance of this step forward, however, has been threatened by Police and Military misconduct as well as the breaching of constitutional provisions. This is symbolised by the circumstances surrounding the death of Alhaji Issah Mobillah which exposed the ability of the police and military to overreach the tenets of the Constitution that keep civil rights abuses in check as well as the inability of civil society, to effectively demand official accountability and transparency. The highly anticipated December 7th Presidential and Parliamentary Elections were successful by most accounts, however, the wait for results witnessed some conflicts. During the evening of Wednesday December 8th and the morning of Thursday December the 9th, gun fire was reported in the suburbs of Tamale, the Northern capital Lamsheggu, Sakasaka, Chogu and Aboabo. In response to the security issues in the Dagbon region, The Northern Regional Security Council 'REGSEC' issued a statement on 9th December, 2004, inter alia directing those arrested for lawlessness to be sent to military and for the security agents to return 'fire for fire' in whichever direction it came.
Mobillah was the Northern Regional Chairman of the Convention People's Party and an important contributing figure to the campaign of the National Democratic Congress Party during the recent elections. A Burkinabe by birth, he had lived in Tamale since childhood.
On Dec 9th, Mobillah's driver returned from having his car serviced and informed him that his vehicle had been impounded and searched by the Police. After calling on the Gukpegu Regent, the Traditional Head of Tamale, Alhaji Mobillah reported to the Police Station accompanied by the Gukpegu's secretary, Abdul-Iatif Sahana. Upon arrival at the Police Station, he learned that his house had also been searched. He was detained and questioned on allegations of illegal firearm possession despite the failure of the earlier police searches of his home and vehicle to produce any evidence supporting this charge. He wrote a statement and denied the charges. When his family returned to the Police Station at 4:00 pm to secure bail, as they had been instructed earlier that day, they were told of his transfer to the military Kamina Barracks on the orders of REGSEC 1(Endnotes).
Later that night Mobillah's dead body was delivered to the Tamale Hospital Mortuary.
The following day Alhaji Iddris, the President of Mobillah's community, received a message from the Regional Minister of the Northern region that Mobillah had died while in custody. When the family was able to locate the body, it was identified by Issahaki Jesiwuni, the Secretary of the Burkinabe Moshie Community, and the representative for Mobillah's family in the events that followed.
A Coroner's inquest was carried out and a pathologist from the Komfo-Anokye Teaching Hospital in Kumasi performed the autopsy on 17th December 2004. The Post Mortem Report dated 17th December, 2004 and reference numbered PM/T/I indicated that official reports state that Alhaji Mobillah collapsed while in military cells during the night and died later at the Barracks Clinic. The examination revealed multiple abrasions over the body, five fractured ribs, and collapse of the left lung with haemothorax and identified these findings as the cause of death. On the 17th of December 2004, the Mobillah family officially lodged Petition for an explanation of his death to the Northern Regional Commander of the Ghana Police; they are still awaiting a response.
In the Daily Graphic of January 27, 2005, the Inspector General of Police reported that investigations into the death of Alhaji Mobilllah have been completed and the case docket forwarded to the Attorney-General for study and advice.
The Security and Intelligence Act, 1996, the Dagbon State of Emergency and action of REGSEC
Political tensions in Northern Ghana during the December 2004 elections were high but this was not a recent development. Tamale and the surrounding Dagbon area had for some time suffered from political tensions and a lack of stability. For two years, the Tamale and the Dagbon area was under a curfew and state of emergency, that was lifted in mid August, 2004. There was no state of emergency in Tamale when the REGSEC issued the directive to the security agencies to return 'fire for fire' and hand over arrested persons to the military, they were therefore obliged to comply with the law in arresting persons during the December 2004 election period. Even if the military were operating under a state of emergency was REGSEC legally empowered to issue such a directive?
A State of Emergency can be called by the President on the advice of the Security Councils under Article 31 of the 1992 Constitution. It may be declared if the situation is deemed likely to render necessary the taking of measures which are required for securing the public safety, the defence of Ghana and the maintenance of public order”2.
The effect of a declaration of a state of emergency includes a temporary suspension of certain fundamental human rights. The most direct consequence of a state of emergency is that measures can be taken to derogate from protection normally afforded by the Bill of Rights.
Even if Alhaji Mobilah was arrested under a state of emergency, he would have been afforded some legal protection and rights; he would have been informed of the cause of his arrest in writing, his relatives and family would have been informed of the arrest within 24 hours, his arrest would have been made public, he would have been allowed legal counsel, and his case would have been reviewed at least every three months by Judges appointed by the Chief Justice of Ghana.
The Security and Intelligence Agencies Act, 1996 (526) provides for the establishment of Regional and District Security Councils and the agencies responsible for implementing government policies on security of the state. This Act is a tool to regulate and sustain peace and safety under any circumstances in Ghana.
The body upon which the security of Tamale fell was the Regional Security Council 'REGSEC', whose membership includes the Regional Officers from the Military, Police, Prison and Internal Intelligence bodies. Section 7 of the Act empowers REGSEC to operate as a committee of the National Security Council, performing functions that the National Security Council may assign to it, and providing early warning to government of the existence or likelihood of a security threat to the region or country. No where in the Act is the REGSEC empowered to issue directives on arrest or detention of citizens; REGSEC does not have the powers to determine how persons should be arrested, nor does it have the powers to determine the agency that should have custody of arrested and detained persons. The Northern region REGSEC therefore acted contrary and ultra vires the Security and Intelligence Agencies Act, 1996 by issuing the directive dated December 9th 2004. The Police handed over Alhaji Mobillah over to the Military pursuant to this order
The elections were apparently taken into consideration in the decision to lift the state of emergency in Dagbon, they were well anticipated and certainly not a surprise. The Police Service had time to prepare for increased security concerns; this was in fact their duty. Under Article 200 sub-section 3 of the Constitution, the Police Service “shall be equipped and maintained to perform its traditional role of maintaining law and order”. If they were not capable of this, and Dagbon was indeed a matter of concern for the
REGSEC, then there were procedures to be followed to ensure that the situation did not inhibit the maintenance of regional security. REGSEC overstepped the powers of arrest and detainment of the Police when they issued the directive to transfer “suspects of lawlessness” to the military. This decision was made in a meeting, the minutes of which also included the decision to “return fire for fire”. Nowhere in the Security and Intelligence Act is the Regional Security Council in Ghana given the power to issue directives to Security Agencies on usuage of ammunition and how to defend themselves. The directive of REGSEC ordering the military and police to return fir for fire in the Northern Region pursuant to their letter of 9th December 2004 was unlawful. Shootings had been reported and there were legitimate concerns for the safety in Dagbon that had to be addressed. This justified searches, questioning and interrogation, but did not exempt any security agency from usurping the provisions and protection afforded citizens by the 1992 Constitution.
Police officers, who obtain information about the intentions of any citizens to commit offences, are to report these findings to the officers authorized (Act 30.40). Responsibility into investigations into suspicions of Mobillah's involvement in the possession or distribution of arms fell on the Regional Police Commander, who holds the responsibility for the control and supervision of arms and ammunition3. Investigation of criminal actions and detainment of citizens, as usual, lay in the hands of the Police. These rights and procedures do not change, even in times of conflict; in fact, this is when adherence to them is the most critical.
The 1992 Constitution has very clear stipulations on the rights of arrested detained and accused persons. According to article 15(2) of the Constitution, a person who is arrested, restricted or detained shall not be tortured or subjected to cruel or inhuman or degrading treatment.
Alhaji Mobillah made a statement, the police informed his family to return to secure bail. Under the Criminal Procedure Code, 1960 once the arrested person's name and address are recorded and appropriate bail is set they are free to appear in court at a set time (Act 30.11). If there was a need for further questioning, Mobillah should have been released to return to the police station. If his detainment was imperative, bail should not have been set. As detainment serves to hold an individual while they are waiting to appear before a court; he should have been held by the Police for that purpose, whether or not questioning was completed (Act 30.15).
By Kate Fraser and Nana Oye Lithur Commonwealth Human Rights Initiative Africa Office