CONSTITUTIONALITY OF THE SECURITY AND INTELLIGENCE AGENCIES BILL 2025 AND OTHER MATTERS
CONSTITUTIONALITY OF THE SECURITY AND INTELLIGENCE AGENCIES BILL 2025 AND OTHER MATTERS
BY MARTIN A. B. K. AMIDU
THE PROLOGUE
The first Parliament that convened under the 1992 Constitution on 7 January 1993 was composed of members of Parliament from the National Democratic Congress (NDC) and the National Convention Party (NCP) which contested the elections after the New Patriotic Party (NPP) boycotted the December 1992 parliamentary election when it lost the November presidential elections. Nonetheless, under the supervision of the late Captain (Rtd.) Kojo Tsikata, who was the Presidential Advisor on National Security, the Government was determined to enact Security and Intelligence Agencies legislation which would be in conformity with Article 83 of the 1992 Constitution and be acceptable to succeeding political parties and governments. The Security and Intelligence Agencies Bill, 1996 was accordingly prepared by the Office of the Attorney-General under the supervision of Captain Tsikata with assistance from the government of the United Kingdom. This writer was the lead participant from the Office of the Attorney-General who saw the Security and Intelligence Agencies Bill, 1996 through Parliament to become the Security and Intelligence Agencies Act, 1996 (Act 526) on 31 December 1996 (after the 7 December 1996 elections). The Security and Intelligence Agencies Act, 1993 (Act 526) became a pioneering law of its kind in Africa at the time as Johnny Kwadjo discussed in his “Changing the Intelligence Dynamics in Africa: The Ghana Experience” 2009. (See Kwadjo, J., 2009, 'Changing the Intelligence Dynamics in Africa: The Ghana Experience', in Changing Intelligence Dynamics in Africa, eds. S. Africa and J. Kwadjo, GFN-SSR and ASSN, Birmingham, UK, pp. 95-124).
The second NDC government under the 1992 Constitution designated and appointed a Minister for National Security under Act 526 when it returned to office on 7 January 1997; the first and second NPP governments also appointed a Minister for National Security in its second tenure; the third and fourth NDC governments designated and appointed Ministers with responsibility for Security and Intelligence while the third NPP government also designated and appointed a Minister for National Security without needing to amend Act 526 before the Security and Intelligence Agencies Act, 2020 (Act 1030) replaced it.
After over twenty-four years of the Security and Intelligence Agencies Act, 1996 (Act 526) being operationalized under alternating NDC and NPP governments, Act 526 was replaced by a bi-partisan NPP and NDC Parliament with the Security and Intelligence Agencies Act, 2020 (Act 1030) which substantially re-enacted the provisions of Act 526. Barely four years thereafter the succeeding government intends by the Security and Intelligence Agencies Bill 2025 now laid before Parliament to re-enact another legislation as though every government must own the security architecture it wishes to operate under while in power. How viable is this mentality in a democracy under the regime of the rule of law and not of men?
INTRODUCTION
An examination and analysis of the Security and Intelligence Agencies Bill, 2025 leaves one with the irresistible impression of an unconstitutional power grab for the National Security Co-ordinator and/or a fight for territory within a security architecture not derived from Article 83 of the 1992 Constitution as operationalized under the Security and Intelligence Agencies Act, 1996 (Act 526) which had served this country and several democratically elected governments well since 7 January 1993. Indeed, less than four years ago Parliament bi-partisanly re-enacted the original Security and Intelligence Agencies Act, 1996 (Act 526) as the Security and Intelligence Agencies Act, 2020 (Act 1030) with additions which the operationalization of Act 526 over twenty-four years had disclosed needed to be upgraded to ensure the full attainment of the constitutional objectives of democratic and civil control of the security and intelligence apparatus of the nation.
I wish to assume that when Parliament considered the Security and Intelligence Agencies Bill 2020 that led to the enactment of the Security and Intelligence Act, 2020 (Act 1030) it was satisfied that the Bill complied with Article 106(2)(a) of the 1992 Constitution. For the avoidance of doubt, Article 106(2)(a) of the Constitution states that:
“No bill other than such a bill as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced into Parliament unless- (a) it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction;...” (Emphasis supplied).
The first threshold hurdle the Security and Intelligence Agencies Bill, 2025 has to overcome for Parliament to be seized with the power to accept it for consideration is to demonstrate compliance with Article 106(2)(a) by the accompanying explanatory memorandum setting out the policy and principles of the bill, the defects of Act 1030 as the existing law, the remedies the bill proposes to deal with those defects and the necessity for the introduction of the bill to Parliament. One cannot find in the explanatory memorandum accompanying the bill laid before Parliament compliance with Article 106(2)(a) of the Constitution.
The explanatory memorandum accompanying the Security and Intelligence Agencies Bill, 2025 laid before Parliament is signed and dated 3 July 2025. The Government assumed office on 7 January 2025 and in a letter from the President to Parliament, read by the Speaker during a sitting on Friday, 7 March 2025, “the President assigned ministerial responsibility for national security to the Minister of the Interior, Hon. Mohammed-Muntaka Mubarak.” The decision was made pursuant to Section 64 of the Security and Intelligence Act, 2020 (Act 1030). Soon thereafter preparation of the bill before Parliament started, approved by the Cabinet and submitted to Parliament under the signature of the Minister for National Security.
In view of the fact that the government prepared and submitted this bill within six months of assuming office it is imperative that the explanatory memorandum accompanying the bill informs Parliament whether the existing Security and Intelligence Agencies Act, 2020 (Act 1030) is tainted with any unconstitutionality or is fatally defective and the policy and principles justifying the introduction of the bill to Parliament. This imperative of complying with Article 106(2)(a) of the Constitution is more urgent because part of the environment surrounding the preparation and submission of the bill to Parliament is buttressed by the fact that after the new government assumed office on 7 January 2025 one of the first acts of the President was to appoint a still serving Assistant Commissioner of Police who was his Aide de Camp (ADC) during his previous administration and tenure as the National Security Co-ordinator. The National Security Co-ordiantor was then promoted to the rank of a Deputy Commissioner of Police and again as a Commissioner of Police within the first six months of the President’s administration.
The foregoing environment within which the Security and Intelligence Agencies Bill, 2025 was conceived and laid before Parliament within the first six months of the present government provides background information and knowledge for assessing the attempt in the bill to give to the Office of the National Security Co-ordinator and the Co-ordinator supraordinate powers which the office never had under both Act 526 and the existing Act 1030.
ARTICLE 106(2)(a) OF THE CONSTITUTION AND THE SECURITY AND INTELLIGENCE AGENCIES BILL, 2025
The Security and Intelligence Agencies Bill 2025, even upon casual reading, is inconsistent with and contravenes Article 106(2)(a) of the 1992 Constitution governing the mode of exercising legislative power. Article 106 (2)(a) mandatorily demands that: “No bill other than such a bill as is referred to in paragraph (a) of article 108 of this Constitution, shall be introduced into Parliament unless- (a) it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction;...”
Unfortunately, the explanatory memorandum accompanying the Security and Intelligence Agencies Bill, 2025, failed to state in detail the policy and principles of the Bill and the considerations underpinning the “current policy direction of government” to enable an objective appraisal of the underlying government policy and principles alongside its consistency with the constitutional architecture of the 1992 Constitution to ensure civil control of all the security and intelligence apparatus of government including the Ghana Armed Forces and the law enforcement institutions entrusted to a constitutionally and democratically elected President as the repository of the executive power of Government.
Without a policy framework and principles located within the constitutional structure and scheme of the 1992 Constitution, particularly, Article 83 thereof justifying and supporting “the current policy direction of Government”, the self-serving statement in the memorandum accompanying the Bill which states that: “The policy direction of government is to provide for a security architecture where the National Security Co-ordinator co-ordinates the activities of the security and intelligence agencies in the country” does not provide justification and compliance with Article 106(2(a) of the Constitution for a sudden interference and dismemberment of the Security and Intelligence architecture in Act 1030 established under Article 83 of the 1992 Constitution.
The existing law was operationalized during the existence of the Constitution since 1996 when the NDC Government enacted Act 526 to bring the operations of the Security and Intelligence Agencies into conformity with the constitutional and democratic mandates of the Constitution, particularly Article 83 thereof. Act 1030, which is substantially a re-enactment of Act 526 must, therefore, be shown by the bill before Parliament to offend against the constitutional design, structure, and scheme or to be defective as required under Article 106(2)(a) of the Constitution.
Consequently, it is important that whatever government policy and principles informs the need for a completely new law to replace Act 1030 is expressly articulated to demonstrate the defect in the existing legislation and/or any inconsistencies in its operationalization which necessitates not just an amendment but a complete replacement of the Act. It is unconstitutional to introduce a bill in Parliament just for the sake of providing for an anointed National Security Co-ordinator whose office predates the 1992 Constitution and continued to exist and exercised functions under Act 526 and 1030 for the sake of giving for the first time to such a person express supraordinate powers of coordinating “the activities of the Security and Intelligence Agencies in the country.”
Both Act 526 and Act 1030 recognize the constitutional and democratic imperative of a Minister of State being responsible for the Security and Intelligence Agencies and being answerable to Parliament for those agencies. Any attempt, therefore, to dilute the powers of the Minister responsible for Security and Intelligence Agencies by elevating the National Security Co-ordinator to have for the first time by law supraordinate supervisory responsibilities over the Security and Intelligence Agencies and thereby usurp the ministerial functions of the Minister of State is a potential recipe for disaster and turf war between the Minister, the National Security Co-ordinator, and the Directors-General of the Intelligence Agencies. This is particularly so, when there are no clearly stated policy and principled objectives or defects in the existing law anchored on any framework policy documentation for the proposed changes.
The only impression an objective reader gets from the Bill is the fact that there has been a change of government and consequently the President thinks that the structure of the current security architecture established by his immediate predecessor President and Parliament must be changed to enhance the powers or level of authority of the National Security Co-ordinator whose office is not even mentioned in the scheme of Article 83 of the Constitution.
In the absence of any policy and principles underpinning the bill and the defects of the existing law it seeks to cure one cannot overlook the environment surrounding the hasty introduction of the bill in Parliament immediately the new government assumed office on 7 January 2025 where the National Security Co-ordinator appointed by the President as part of his first acts in office on or about 15 January 2025 was an Assistant Commissioner of Police who served as his official Aide de Camp (ADC) in his previous administration. The National Security Co-ordinator while still a serving officer in the Ghana Police Service has since been promoted to the rank of Deputy Commissioner of Police and within a few months further promoted to the rank of a Commissioner of Police within the first six months of the President’s administration. Only time will tell whether this first in history serving Police officer and National Security Co-ordinator will soon not be additionally promoted the Inspector-General of Police (IGP) under this government.
The foregoing environment within which the Security and Intelligence Agencies Bill, 2025 was conceived and laid before Parliament within the first six months of the present government, therefore, provides the background information and knowledge for assessing the attempt in the bill to give to the Office of the National Security Co-ordinator and the Co-ordinator supraordinate powers which the office never had under both Act 526 and the existing Act 1030.
The Objective and Purpose of the Security and Intelligence Agency Bill, 2025
The objective and purpose of the bill are stated in the first six opening paragraphs of the accompanying explanatory memorandum to the Bill. Stripped of all pretentions and form, the substantive objective is to make provisions for the establishment of an “Office of the National Security Co-ordinator to coordinate activities of the security agencies responsible for national security” allegedly “in order to protect and preserve the unity and stability of the State….”
The second paragraph of the Memorandum to the Bill recognizes the fact that the Security and Intelligence Agencies Act, 1996 (Act 526) was repealed after over twenty-four years by the Security and Intelligence Agencies Act, 2020 (Act 1030) which has been in existence for four years after its operationalization. The purpose of the Bill is simply stated as “the need to re-enact Act 1030 to reflect the current policy direction of Government.”
The third paragraph of the Memorandum accompanying the Bill states the policy direction of the Government as follows: “The policy direction of Government is to provide for a security architecture where the National Security Co-ordinator co-ordinates the activities of the security and intelligence agencies in the country. The Bill envisages that the National Security Council, which is chaired by the President, will work directly with the Office of the National Security Co-ordinator and the Directors-General of the intelligence agencies.”
The explanatory memorandum accompanying the Security and Intelligence Agencies Bill, 2025 makes no attempt whatsoever in the six paragraphs stating the objective and purpose of the bill or in any other paragraphs of the memorandum to set “…. out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction” in Parliament as mandatorily demanded by the Constitution. The purpose of the Bill which is simply stated as “the need to re-enact Act 1030 to reflect the current policy direction of Government” is insufficient to satisfy the constitutional requirement of providing in the explanatory memorandum the detailed policy and principles of the bill. Similarly, the statement in the third paragraph of the explanatory memorandum stating that: “The policy direction of Government is to provide for a security architecture where the National Security Co-ordinator co-ordinates the activities of the security and intelligence agencies in the country” is insufficient without setting out in detail the policy and principles of the bill and the defects in the existing law warranting “the need to re-enact Act 1030 to reflect the current policy direction of Government.”.
The further justification for the Bill which states that: ‘The Bill envisages that the National Security Council, which is chaired by the President, will work directly with the Office of the National Security Co-ordinator and the Directors-General of the intelligence agencies” only wittingly or unwittingly goes to confirm that what the Security and Intelligence Agencies Bill, 2025 seeks to do is to enthrone the President’s former ADC whom he has appointed the National Security Co-ordinator as Lord and Master over the Minister responsible for National Security, and over the intelligence agencies.
This is a dangerous whimsical basis for changing existing laws without complying with Article 106(2) of the Constitution even if the government has the numbers in parliament to achieve its objective. The next government will for a similar reason repeal and enact its own whimsical alternative Security and Intelligence Agencies law. Act 526 would not have survived for a quarter of a century if the NPP had viewed Act 526 as a partisan piece of legislation enacted by an NDC government when the NPP was not represented in Parliament in 1996.
Without underscoring the fact that Security and Intelligence Agencies Act, 2020 (Act 1030) re-enacted most of the provisions of the Security and Intelligence Agencies Act, 1996 (Act 526) with additions to take care of policy deficits revealed or disclosed by its operationalization over those twenty-four years, the Security and Intelligence Agencies Bill, 2025 simply states that: “Four years after the operationalization of Act 1030, there is the need to re-enact Act 1030 to reflect the current policy direction of Government.” Must Ghana have a new security architecture enshrined in legislation every four years when there is a change of government as a policy objective when no defects in the existing law has been demonstrated as mandated by Article 106(2) of the 1992 Constitution?
Office of the National Security Co-ordinator as a Supraordinate Intelligence Agency
The Security and Intelligence Agencies Bill 2025 seeks to convert the Secretariat of the National Security Council and its Co-ordinator whose existence predates the 1992 Constitution into a supraordinate intelligence agency for the first time in the history of this country under Clauses 12 (a), 14 (1), 15, 17(1(f), and 19(e) of the Bill with the National Security Co-ordinator as the head. Clause 15, for instance, spelling out the new functions of the supraordinate National Security Co-ordinator subjugates the constitutionally recognized intelligence agencies under Article 83 and their briefing authorities of the President as reserved only for the National Security Co-ordinator. All the other Clauses of the Bill substantially re-enact Act 526 as upgraded by Act 1030.
The extent of the enormous power grab for the President’s former Aid de Camp as the National Security Co-ordinator can be gleaned from a comparison of Sections 18, 19, and 20 of Act 526, Sections 20, 21, 22, and 23 of Act 1030, with Clauses 14, 15, and 16 of the Security and Intelligence Agencies Bill 2025. The situation is worsened by the fact that whilst the Bill purports to establish the Office of the National Security Co-ordinator as an intelligence agency alongside the existing two intelligence agencies, the National Security Co-ordinator, unlike the Directors-General of the Intelligence Agencies, is not enjoined to “pursue and ensure political party neutrality…” of the Office of the National Security Co-ordinator in the performance of its functions. (See Sections 14(c) of Act 526 and Section 16(c) of Act 1030 and contrast that with Clauses 15 and 19(c) of the 2025 Bill on the functions of the Co-ordinators and the Directors-General of the Intelligence Agencies respectively).
Whatever unarticulated policy and principles underpinned the Bill, the substantive changes the Bill seeks to make to the existing law, Act 1030, are to simply create a monopoly for, and a form of dictatorship of the National Security Co-ordinator over the Directors of Internal and External Intelligence contrary to the letter and spirit of the entrenched provision of Article 83 of the 1992 Constitution. Article 83(1) states that: “There shall be a National Security Council which shall consist of - (g) the Director of External Intelligence; (h) the Director of Internal Intelligence; ... and (k) three persons appointed by the President.” The offices of “(g) the Director of External Intelligence; (h) the Director of Internal Intelligence” predated the 1992 Constitution as was the office of National Security Co-ordinator when the framers of the Constitution purposefully excluded the latter from membership of the National Security Council.
There is, therefore, everything constitutionally wrong with any Bill that seeks to establish a supraordinate intelligence agency by legislation and elevating its head, a non-recognized constitutional member of the National Security Council, over expressly named constitutional members of the National Security Council. Article 83 is an entrenched provision of the Constitution which can only be amended after a national referendum and no President and Parliament have the power to dilute the powers of members of the Council designed by the Constitution by elevating any preferred appointee over them by means of legislation.
COMPARATIVE ANALYSIS OF ACT 526, ACT 1030, AND THE 2025 BILL
The Security and Intelligence Agencies Act, 1996 (Act 526) dealt with ministerial responsibility for intelligence agencies under Section 17 by stating that the President shall assign ministerial responsibilities of the intelligence agencies to the Minister whom the President considers appropriate. This was because Article 78 is the empowering provision for the appointment of Ministers of State. Act 526 did not make any provisions for the functions of the Minister in the legislation nor for a Ministry for the Security and Intelligence Agencies because the establishment of Ministries for specific subject matters and the Chief Director for the Ministry are governed by the Civil Service Act, 1993 (P.N.D.C.L. 327) pursuant to which each President made an instrument establishing the Ministries under his administration. There was also no express provision made for a Ministerial Co-ordinating Committee of the National Security Council as this was permissible under Section 10 of Act 526 empowering the National Security Council to establish committees of the Council consisting of Members of the Council or non members or both to perform a function of the Council.
The Security and Intelligence Agencies Act, 2020 (Act 1030) chose to expressly provide for a Ministerial Security Co-ordinating Committee of the Council in Section 11 despite the fact that the preceding Section 10 made it permissive if the Council so decided. Act 1030 also made express provision for the appointment of a Deputy National Security Co-ordinator in Section 22. And then, under the sub heading of Responsibilities and Roles for National Security it provided for the functions of the Minister in Section 24, and functions of the Chief Director in Section 25. Sections 24 and 25 of Act 1030 were reinforced with the provisions of Sections 39 and 40 giving the Minister power over accounts and audits including submitting the accounts of the Council to the Auditor-General, and the submission of the annual reports and other reports to Parliament, respectively. Sections 17 and 33 of Act 526 had vested account keeping and audit functions in the Co-ordinator to the Council and the annual reporting function to Parliament in the Minister.
It is instructive that Section 24 of Act 1030 recognizes that it was not the place of the Act to prescribe the functions of Ministers of State when the opening words of the section began thus: “Without limiting the functions specified in the Civil Service Act, 1993 (P.N.D.C.L. 327) and any other enactment, the Minister shall perform the following functions:..” Section 24 of Act 1030 is conditioned upon whether the President in exercise of his authority to appoint Ministers of State under Article 78 of the Constitution chooses to designate one as Minister for National Security. It is also instructive that Section 25 of Act 1030 on the functions of the Chief Director also recognized that it was not the place of the Act to prescribe the function of the Chief Director when the opening words of the section also began by stating that: “Without limiting the functions specified under section 15 of the Civil Service Act, 1992 (PNDCL 327) or any other enactment, the Chief Director of the Ministry shall perform the following functions…”.
Consequently, upon the change of government on 7 January 2025 following the 7 December 2024 elections, the President in the execution of his executive functions grounded under the Civil Service Act, 1993 (Act 327) established by Executive Instrument the number of Ministries of State for the administration of the country under his regime. It is for this reason that on 9 January 2025 President John Dramani Mahama exercised his authority under Act 327 to establish only twenty-three (23) Ministries of State for the administration of Ghana by signing the Civil Service (Ministries) Instrument, 2025 (E.I. 1). E.I 1 of 2025 disestablished the Ministry of National Security by not including such a Ministry in the list of sector ministries. Thereafter, Sections 25 and 24 of Act 1030 automatically fell into desuetude or became dormant provisions and the Head of Civil Service was enjoined to recall any Chief Director appointed under Section 25 of Act 1030. A future government may revive those provisions by a new Civil Service (Ministries) Instrument, if it so wished.
The Security and Intelligence Agencies Bill, 2025 virtually reinstates section 17 of Act 526 as its Clause 11 of the Bill and omits Sections 11, 22, 24 and 25 of Act 1030 on a Ministerial Security Co-ordinating Committee of the Council, the appointment of a Deputy National Security Co-ordinator, the functions of the Minister, and the functions of the Chief Director respectively without offering any detailed explanation for doing so or the defects disclosed in the application of those provisions. The Bill laid before Parliament also transfers the powers of the Minister over accounts and audit in Section 39 of Act 1030 to the National Security Co-ordinator and the annual reporting function in section 40 to the Minister.
An examination of Act 526 and Act 1030 alongside the Security and Intelligence Agencies Bill 2025 now laid before Parliament suggest that the substantive reasons for the introduction of this Bill to replace the existing Act 1030 is the fact that this Government disagrees with the provisions made by the 7th Government and Parliament under Sections 11, 22, 24, 25, 39 and 40 of Act 1030 on a Ministerial Security Co-ordinating Committee of the Council, the appointment of a Deputy National Security Co-ordinator, the functions of the Minister, and the functions of the Chief Director, vesting in the Minister authority over accounts and audit, and annual reporting to Parliament respectively.
The only substantive additions introduced by the bill now before Parliament is the enthronement of the Office of the National Security Co-ordinator and the National Security Co-ordinator as a supraordinate national security agency. The Bill does this by elevating and enhancing the status and powers of the Office of the National Security Co-ordinator and its Co-ordinator over the Security and Intelligence Agencies and any Minister assigned responsibility for the Security and Intelligence Agencies in clauses 12(a), 15(c), 17(f), and 19(e), dealing with the Office of the National Security Co-ordinator as one of the intelligence agencies, the functions of the Co-ordinator to provide appropriate orientation and general guidance to the intelligence agencies, enjoining the internal and external intelligence agencies to perform any other functions directed by the Co-ordinator, and enjoining the Directors-General to perform any other functions directed by the Co-ordinator.
In sum, the functions of the Minister and the Chief Director under Sections 24, 25, and 39 of Act 1030 are being repealed and transferred to the supraordinate new Office of the National Security Co-ordinator and the Co-ordinator instead of even the Minister with responsibility for National Security being established again in Clause 11 thereof. The Bill seeks to entrench the supraordinate position of the National Security Co-ordinator for the first time by subjugating the Directors of Internal and External Intelligence to his express control in clauses 15(c), 17(f), and 19(e), of the Bill in giving him the functions to provide appropriate orientation and general guidance to the intelligence agencies, enjoining the internal and external intelligence agencies to perform any other functions directed by the Co-ordinator, and enjoining the Directors-General to perform any other functions directed by the Co-ordinator
The Security and Intelligence Agencies Act, 1996 (Act 526) and the Security and Intelligence Agencies Act, 2020 (Act 1030) never created the Office of the National Security Co-ordinator and the Co-ordinator as a Supraordinate intelligence agency over and above the internal and external intelligence agencies for a simple reason. Article 83(1)(g) and (h) expressly made the Directors of the Internal and External Intelligence members of the National Security Council as a matter of right. This is an entrenched provision of the Constitution that can only be amended through a referendum.
Even though the Office of National Security Co-ordinator predated the 1992 Constitution the framers of the constitution never made the National Security Co-ordinator a member of the National Security Council. As a matter of the personal knowledge of this writer, at the time of enacting the Security and Intelligence Agencies Act, 1996 (Act 526) it would have been inconsistent with and in contravention of the Constitution to elevate the Co-ordinator above the Directors of the Internal and External Intelligence by legislation in the teeth of Article 83(g) and (h) by requiring members of the Council to take directives from a non-member of the Council instead of directly from the President or the Council. I believe that it was for the same reason that Parliament did not create the Office of the National Security Co-ordinator and the Co-ordinator as a supraordinate intelligence agency over and above the internal and external intelligence agencies in Act 1030.
In view of the fact that the Security and Intelligence Agencies Bill 2025 exhibits an intention to repeal Sections 24 and 25 of Act 1030 and enthrone the Office of the National Security Co-ordinator and the Co-ordinator as a supraordinate intelligence agency over and above the internal and external intelligence agencies under clauses 15(c), 17(f) and 19(e) of the Bill the memorandum accompanying the Security and Intelligence Agencies Bill 2025 should in accordance with Article 106(2)(a) of the Constitution mandatorily set out in detail the policy and principles justifying the bill to replace the existing Act 1030 anchored on any alleged unconstitutionalities and other defects in the Security and Intelligence Agencies Act, 2020 (Act 1030), and the remedies proposed to deal with the unconstitutionalities or defects alleged as necessitating the introduction of the Bill in Parliament to replace the existing Act 1030.
The Bill as presently laid before Parliament has failed to comply with the mandatory provisions of Article 106 (2)(a) for it to be introduced in Parliament for its acceptance and consideration. It follows, therefore, that the Bill before this Committee is incompetent as having failed to comply with Article 106(a) notwithstanding the fact that it was gazetted under Article 106(2)(b) thereof.
OBSERVATIONS
Regional and District Security Councils
The Security and Intelligence Agencies Bill before Parliament seeks to expand the composition of the Regional and District Security Councils contained in the existing Act 1030 without setting out the defects in the existing law which gives the Regional Minister and the District Chief Executive authority to demand security briefs from the heads of the agencies being added to the list of membership of those councils. It is as though more jobs and allowances are being created by the government for the “boys” from the public purse.
The Security and Intelligence Agencies Act, 1996 (At 526) established Regional and District Security Councils, their composition, and functions under Sections 5, 6, 7, 8, and 9 thereof. The succeeding Act 1030 which replaced Act 526 substantially re-enacted the provisions under Act 526 on the Regional and District Security Councils in Sections 5, 6, 7, 8, 9 and 10 of Act 1030 with the addition of the Regional and District Directors of the National Disaster Management Organization as a member of the Regional Security Council and District Security Councils respectively. The Security and Intelligence Agencies Bill, 2025 needlessly expands the composition of the Regional and District Security Councils to include the regional and district officers in charge of the Narcotics Control Commission, the National Identification Authority, the National Ambulance Service, three members of Parliament from the region and one member of Parliament from the district nominated by the Regional Minister and the District Chief Executive respectively. Can it seriously be agreed that the Regional and District Directors of Health Services, Agriculture, Information Services Department, and many others do not perform security related functions?
The Regional and District Security Councils were intended to replicate the composition of the National Security Council set forth in Article 83 of the Constitution at the regional and district levels instead of providing avenues for generating further benefits and allowances from the public purse for selected “boys” without any explanation of the necessity for including them in the Bill.
Negation of the constitutional rights of members of the National Security Council in the Bill
The Bill also seeks to unconstitutionally negate the effect of Article 83 of the Constitution that allows the Members of the National Security Council which includes the Directors-General of the External and Internal Agencies (Article 83 (g) and (h)) thereof), and the responsible Ministers, (Article 83(c) thereof) to be capable as of right of briefing the Council and sharing ideas to enhance the security of the state. The Security and Intelligence Agencies Bill 2025 by enthroning the Office of the National Security Co-ordinator and the Co-ordinator as a supraordinate intelligence agency over and above the internal and external intelligence agencies under clauses 15©, 17(f) and 19(e) purports to subjugate members of the National Security Council to the Office of the National Security Co-ordinator and the Co-ordinator.
This is clearly inconsistent with and contravenes the letter and the spirit of the 1992 Constitution and is void ab initio. One may ask why the intelligence agency named in Article 83(l) as “the Director of Military Intelligence” has also not been subjugated to the National Security Co-ordinator?
Discretion of the President to appoint other persons to the National Security Council
The Bill before Parliament also seeks to entice the President in exercising his discretion to appoint three other members to the Council to have regard to the Ghana Immigration Service, the Ghana National Fire Service and gender balance as members of the National Security Council established under Article 83(1)(k). The three persons who the President appoints as members of the Council pursuant to Article 83(1)(k) of the Constitution is matter entirely within the President’s discretion and the attempt in Clause 1(2) of the Bill to circumscribe the President’s discretion is inconsistent with and contravenes the Constitution.
CONCLUSIONS
This memorandum to Parliament demonstrates that without an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed to deal with those defects and the necessity for its introduction accompanying the Security and Intelligence Agencies Bill 2025 that was laid before Parliament and referred to the Intelligence Committee of Parliament any further action on the bill to enacted it into legislation would be a violation of Article 106(2)(a) of the 1992 Constitution.
The foregoing discourse contained in the memorandum also shows that it is not the place of Parliament to enact legislation for the purpose of granting powers as reward for services previously rendered to elected Presidents or any other persons elected under the 1992 Constitution. It has been contended that for the first time in the history of this country the Security and Intelligence Agencies Bill 2025 seeks to elevate the person occupying the Office of the National Security Co-ordinator over and above constitutionally recognized members of the National Security Council using the instrumentality of legislation without demonstrating any defects in the existing law warranting such grab of powers for the family, friends and cronies of the President.
The duty of Parliament and of every patriotic Ghanaian is to assist the President to exercise the executive power vested in him in accordance with his oath of office without fear or favour, affection or ill will and not to mislead the President to resort to acts that partake of breaches of his constitutional duties by actions that may be interpretated as favouring family, friends, and cronies of the President.
It is for these reasons that I submit this memorandum to Parliament in the hope that Parliament will be bold to assert its powers as a check on the executive arm of government when the provisions of the 1992 Constitution are threatened with non-compliance. The Parliamentary Committee on Security and Intelligence should, therefore, return the Security and Intelligence Bill, 2025 back to the plenary of Parliament with the recommendation that it failed to meet the threshold provisions of Article 106(2)(a) of the Constitution to give Parliament the power to consider and enact it into law.
Sycophancy breeds autocracy which slowly erodes democracy and the rule of law, and eventually kills democracy. That is how democracies die! Parliament must, therefore, never be seen to be on the leash by the Executive arm of government in its law making functions under Article 106 of the 1992 Constitution.
Submitted please.
Martin A. B. K. Amidu