11.04.2018 Feature Article

The Moon Is Out

The Moon Is Out
LISTEN APR 11, 2018

A very popular Ga folk song goes, “the moon is out, we shall play and dance”. Sing along if you want, but this has become serious business, albeit a foolishness in lessons of mischief. At this time, I am ashamed of the politics and particularly the politics of opposition, as we transcended the depths of the gutter to another level of misleading the less literate into a frenzy of a US monster. My only reassurance is that some educated persons I know very well also fell for the paranoia and echoed what became a contrived and hyped view of an impending doom, which has been with us for more than twenty years.

I would have let all alone except that my too known friend, Ace Ankomah, made it impossible to ignore when he posted this on the OçcupyGhana platform and I am sharing without his permission all the education he has posted in this piece.

“After much reading and research, I concluded that to fully understand what's happening, we need to start by going through a summary of diplomatic immunities under the Vienna Convention to which Ghana is a party and which has been passed as law in Ghana.

Let's see if any of these sound familiar within the context of what we may find objectionable under the 2018 Agreement.

* Article 9. The host nation may declare a diplomat persona non grata. Then the sending state must recall him within a reasonable period of time, or otherwise he may lose the diplomatic immunity.

* Article 22. All premises of a diplomatic mission are inviolable, meaning you can't enter except by permission and you must protect them from intrusion or damage. You can never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residences of diplomats.

* Article 24. The archives and documents of a diplomat are inviolable. You may not seize or open such documents.

* Article 27. You must permit and protect free communication between diplomats and between them and their home country. A diplomatic bag (essentially all items leaving from or coming to a diplomat) must never be opened even on suspicion of abuse. Even a diplomatic courier cannot be arrested or detained.

* Article 29. Diplomats are not liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.

* Article 34. They are exempt from most taxes
* Article 36. They are exempt from most customs duties.

* Article 37. Even family members enjoy most of the same protections as the diplomats themselves.

Right after WWII, especially when allied forces kept troops in other countries, discussions began in how to treat Visiting Forces. The UK led the way as usual with what ultimately became their 1952 Visiting Forces Act, which was aimed at granting some protections to such soldiers. FYI, this Act has been specifically amended to mention Ghana as one of the countries whose soldiers enjoy protections in the UK. And FYI, Ghana copied this Act in 1962. Same name, different year.

Let's focus on the Ghana Act. It provides that Ghana courts will try foreign soldiers for all offences they commit in Ghana. Three key exceptions: 1. if the offence relates to the soldier's country or a colleague, then Ghana cannot try him. 2. If the offence is committed WHILE ACTING IN AN OFFICIAL CAPACITY, Ghana court's cannot try him. 3. If that offence committed in an official capacity affects a civilian in Ghana, then our Defence Minister and the head of the Forces will have to meet and agree on which court will try him.

Our Act further specifically permits foreign troops to bear arms and engage in military exercises within Ghana. Ordinarily, those would have been offences. You and I would be arrested for doing that.

And so even without dealing with the question of diplomatic immunities directly, you can see that some of what we now consider objectionable, have been part of our law since 1962!!

As the world became more and more unipolar, Americans started demanding more. This time they asked that the immunities under the Vienna Convention to be extended to their visiting troops.

The fact is that soldiers aren't automatically diplomats. That status has to be specifically conferred by the receiving state before non-diplomats may enjoy it.

Note the summary I provided earlier. If you therefore enter into even a one line agreement or treaty with them that simply says “I grant your soldiers the immunities under the Vienna Convention”, you have given them ALL the immunities with all the bells and whistles, without having to set or flesh them out.

To our knowledge, Ghana did this with the US in 1998, yes, the 1998 Agreement signed by the then Foreign Minister, Victor Gbeho. I suspect that there have been other and earlier agreements, but they have all been held in secret.

You know what's worse for Ghana, we didn't even have copies of this agreement. The US gave us a copy last year. So they could have changed it and we wouldn't even know. That's how foolish we are and How stupid we must look to them.

Note, the 1998 Agreement has no termination clause. Even if it did, we haven't terminated this.

The meaning is that at least for two decades, and I suspect it's much longer, the Americans have had practically ALL the protections that we are now worried about, relying on both the 1962 Visiting Forces Act and the 1998 Agreement.

Massa, they and other military have been coming and going without being checked at the entry points for at least 20 years!!

In 2015, I did a case in Ghana. I attached an Argentine war ship because the country owed my client money, arguing that Argentina waived all sovereign immunities and that unlike the US and UK, we don't have specific laws in Ghana that stopped me from doing what I did.

I won on some points but lost on the point on immunities. The court held that although Ghana doesn't have specific legislation that stopped Ghana from interfering with foreign military equipment, there should be a rule of public policy that we should not.

In other words there is now a law in Ghana, effectively enacted by the Supreme Court, which gives all Visiting military forces immunity from interference with their military accoutrements. Simple!!

And, contrary to what we have been told, our military assets enjoy the same immunity in the US on account of their Foreign Sovereign Immunities Act.

But trust the Americans to do a “turf creep” when they realize that you are sleeping. I am reliably informed that they approached one other government with some expansions, which was turned down, at least, once.

Come 2015, and with the change in African security dynamics, the threat of Boko Haram and Al Shabab, Ghana signed the Logistics Agreement with the US. We also signed a couple of diplomatic notes, letters and even an MOU, which effectively allowed them to use Ghana as a staging post. If that's not a BASE, then tell me what is. Under the MOU, we allowed them to establish what's called a “training facility.” What's that? Training who for what?

The 2018 Agreement has set out in more particulars and details some of the protections that they already had under the 1962 Act and 1998 and 2015 Agreements. But they were clearly expanding the agreements.

And so by 2018, the US was fully here by a combination of the 1962 Act, the 1998 Agreement and what we may call the 2015 set of Agreements.

So why a new Agreement in 2018? Subtle enhancements, aimed at some sort of 'ex post facto' legitimizing of what has accrued to them historically. And, they and others have been sending troops here even from the 1970s, especially to Bundase and Jungle Warfare School in Achiase.

I can see the government's dilemma. If you don't sign, they still get practically all that we had afforded them historically, because those agreements were in full force and effect. If you signed you got a measly $20M tossed at you per annum.

I cannot speak to the extent of negotiations. I'm not privy to that information. I note and respect the point raised by IMANI that we could have negotiated for more and better. Maybe. If it's negotiations, then I haven't seen the alleged $20M written in the agreement. Maybe it's in a side letter or diplomatic note. Then maybe we can negotiate for more and better next year.

I can understand public apprehension. But that has more to do with the fact that this information was suddenly thrust upon us one night, and the emotions, spin and din that have accompanied it haven't allowed for any settles, mature and intelligent discussion of the matter. And the speed with which Parliament acted is at best described as “indecent.”

But I still can't shake the fact that on the day the Agreement was sent to the relevant joint parliamentary committee, the minority outnumbered the majority. The minority raised objections at the committee. But somehow the Agreement was approved by a “majority” WITH NO VOTE, when the minority had more numbers than the so-called majority.

Such convolution can only come from our parliament, where members who accused a ministerial nominee of having tried to bribe them would still give a “unanimous” endorsement of him!

But I have a cynical and almost flippant view on why this passed both the Committee and the House. Show me a single MP with sufficient testicular or mammary fortitude to put his or her name in the official record as having opposed this, when probably the most prized possession of a Ghanaian politician is his/her American visa!! When their kids are Americans because the kids were born there. When their kids will enter 'unis' in the US and pay much less fees than internationals. And, if in the now extremely unlikely event of civil war, they will gladly surrender their Americo-Ghanaian kids to….. ah, US Forces in Accra, to take them to the safety of America.

From Sydney Casely Hayford

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