Supreme Court: CEPS is a security agency and can therefore not unionize
Gilbert Boyefio
11/02/09
The issue as to whether or not workers of the Customs, Excise and Preventive Service can unionize was put to rest yesterday when the Supreme Court ruled in a three to two majority decision that CEPS is a security agency and can therefore not unionize.
According to majority of the panel members, made up of Justices Jones Dotse, Julius Ansah and Anin Yeboah, the assertion that CEPS is not mentioned as a security agency in the Security and Intelligence Agency Act, Act 526 and therefore is not a security agency is misleading. They held that Article 83 (1) puts CEPS amongst the organizations that form the National Security Council. They noted that by its membership on the NSC, CEPS is a security agency.
The majority panel members indicated that the National Labour Law, Act 651 (1), which excludes CEPS from the organizations that cannot unionize, contravenes and is inconsistent with the Security and Intelligence Agency Act.
They further observed that Article 234 states, “Except as otherwise provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Commission shall not be subjected to the direction or control of any person or authority in the performance of its functions”. Article 235 (1) of the 1992 Constitution allows the Chairman of CEPS to enjoy the same terms and conditions of service as a Justice of the Court of Appeal, and a Deputy Chairman of the Commission, the same terms and condition of service as a Justice of the High Court.
The majority panel members held that Article 1 (2) of the 1992 Constitution indicates that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. They pointed out that Article 24 (4) allows restrictions to be placed on the right of CEPS workers to unionize in the interest of national security or public order or for the protection of the rights and freedoms of others.
In reaction to these views, the minority panel members, comprising Justice William Attuguba, who presided over the panel, and Justice Sophia Adanyirah, were of the opinion that Article 24 (3) of the 1992 Constitution gives every Ghanaian worker the right to join a trade union of his choice for the promotion and protection of his economic and social interest. They said the Security and Intelligence Agency Act did not bring CEPS under the fold of Security Services. According to them, under the Constitution CEPS is considered a revenue agency, with the primary aim of protecting the economic security of the country and also patrolling its borders to prevent smuggling.
They submitted that if the court denied CEPS the right to unionize it would be undemocratic and also against the conventions of the International Labour Organization to which Ghana is a signatory. They further pointed out that there was no express law that restricts CEPS from unionizing, unlike the Police Service that has been stated clearly in the Police Service Act that workers cannot unionize.
They further stated that under the NLA Act CEPS is not among the organizations excluded from unionizing.
CEPS is challenging Section 1 of Act 651 of the Labour Law which according to it, contradicts the Constitution. It is also praying the Supreme Court to declare null and void and of no effect a Collective Bargaining Certificate dated March 27, 1987 which was issued to cover the CEPS.
11/02/09
The issue as to whether or not workers of the Customs, Excise and Preventive Service can unionize was put to rest yesterday when the Supreme Court ruled in a three to two majority decision that CEPS is a security agency and can therefore not unionize.
According to majority of the panel members, made up of Justices Jones Dotse, Julius Ansah and Anin Yeboah, the assertion that CEPS is not mentioned as a security agency in the Security and Intelligence Agency Act, Act 526 and therefore is not a security agency is misleading. They held that Article 83 (1) puts CEPS amongst the organizations that form the National Security Council. They noted that by its membership on the NSC, CEPS is a security agency.
The majority panel members indicated that the National Labour Law, Act 651 (1), which excludes CEPS from the organizations that cannot unionize, contravenes and is inconsistent with the Security and Intelligence Agency Act.
They further observed that Article 234 states, “Except as otherwise provided in this Constitution or in any other law which is not inconsistent with this Constitution, the Commission shall not be subjected to the direction or control of any person or authority in the performance of its functions”. Article 235 (1) of the 1992 Constitution allows the Chairman of CEPS to enjoy the same terms and conditions of service as a Justice of the Court of Appeal, and a Deputy Chairman of the Commission, the same terms and condition of service as a Justice of the High Court.
The majority panel members held that Article 1 (2) of the 1992 Constitution indicates that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. They pointed out that Article 24 (4) allows restrictions to be placed on the right of CEPS workers to unionize in the interest of national security or public order or for the protection of the rights and freedoms of others.
In reaction to these views, the minority panel members, comprising Justice William Attuguba, who presided over the panel, and Justice Sophia Adanyirah, were of the opinion that Article 24 (3) of the 1992 Constitution gives every Ghanaian worker the right to join a trade union of his choice for the promotion and protection of his economic and social interest. They said the Security and Intelligence Agency Act did not bring CEPS under the fold of Security Services. According to them, under the Constitution CEPS is considered a revenue agency, with the primary aim of protecting the economic security of the country and also patrolling its borders to prevent smuggling.
They submitted that if the court denied CEPS the right to unionize it would be undemocratic and also against the conventions of the International Labour Organization to which Ghana is a signatory. They further pointed out that there was no express law that restricts CEPS from unionizing, unlike the Police Service that has been stated clearly in the Police Service Act that workers cannot unionize.
They further stated that under the NLA Act CEPS is not among the organizations excluded from unionizing.
CEPS is challenging Section 1 of Act 651 of the Labour Law which according to it, contradicts the Constitution. It is also praying the Supreme Court to declare null and void and of no effect a Collective Bargaining Certificate dated March 27, 1987 which was issued to cover the CEPS.
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