Understanding National Security Law with O.B. Dickson – Ghana

“DRAFT ARTICLE”  – this piece is still a work in progress; with a lot of editing to be done. It does not constitute legal advice or reflect establishment opinion.  It is mainly my contribution to global commons, thought leadership and law practice – from a Solicitor’s perspective. It was actually first written in January 2019, but has been updated and customized to fit the 2019 Bar Conference conversations on National Security Law and Policy. I welcome serious opinion and comment – Lawyer Dickson

INTRODUCTION

The 2019/2020 Conference of the Ghana Bar Association comes off from 8 -13 September 2019 and is historically themed – “Enhancing National Security and Rule of Law: Prospects and Challenges” – I have been invited by the National Bar as one of this year’s Speakers, on the subject-matter of National Security Law – Opportunities and Challenges.  I intend that in the days and weeks prior to taking to the podium, I lighten the legal and policy space with some background discussion and forays into the field of National Security Law (NSL).

THE MODERN PREOCCUPATIONS OF NATIONAL SECURITY

The modern preoccupations of National Security transcend the issues of regime security, war and conflict, use of force, and the military instrument of power. This is because the idea of security within the international system has broadened to encompass internal security, political security, economic security, individual/personal, energy and natural resources, the proliferation of weapons and natural disasters, pandemic disease such ebola, climate change and its effects like the hurricanes and poverty. National security has come to implicate many questions of development, law, and justice.

In view of the wide range of risks, the security of a nation-state has several dimensions and therefore lawyers specializing in national security have significant latitude to focus on vastly different dimensions of the field –  internal security, economic security, energy security, physical security, environmental security, food security, border security, cybersecurity, maritime security, health security, political security, energy and natural resources security, regional and international security.

The 1992 Constitution of Ghana grants extensive national security powers to the Executive in regard to national security matters. This is significant because we are dealing with critical matters of state policy as well as the rule of law.  The Constitution in Articles 83 and 84 address this matter minimally under the Executive.  In some jurisdictions, like the United States, for example, the State Constitution distributes extensive national security powers to both Congress and the President of the United States. Article I grants Congress authority to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress is also empowered to “raise and support Armies,” and “provide and maintain a Navy.” Article II just like Article 57 (1) of our 1992 Constitution designates the President as the “Commander in Chief”. In the case of Ghana, the description is even more elaborate, Head of State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana.

The legal and policy role that Parliament plays, by current practices, is in my view, largely in the domain of oversight; and this area is gradually developing with our nascent democracy. In July of this year, Parliament met to receive for practically the first time the Annual Report on the Security Intelligence Agencies. This is one of those actions that crystallizes legislative oversight on the Executive as provided under the Security and Intelligence Agencies Act, 1996 (Act 526).  The role of the Bar Association and Civil Society Organisations (CSOs) in respect of our national security in terms of such reports remains to be seen. National Security Advocacy is like National Security Governance; both are long-term processes, and both are important and require citizenry participation in a balanced manner.

International law can and does have a domestic effect when incorporated into domestic law. The effect is, therefore, to see international law itself, as having a putative, positive, and expansionary effect on national security law and rule of law matters. International Humanitarian Law, International Human Rights Laws, Maritime Laws, Migration laws, Cyber laws, Fisheries International laws, Counter-Terrorism treaties, Money Laundering Laws, Arm Conflict laws, Trafficking, and Refugee laws, UNSCR Resolutions, Recommendations. Anti-Terrorism Laws, etc interact with municipal law.

A number of substantive statutes are also applicable directly in the field of national security law. The list of applicable statutes in this area is growing. In 2017, CSDS, SGI and Lex Mundus published a legislative guide which I reviewed together with the late Prof Stephen Offei. That research work sought to create for the first time a typology of Ghanaian national security instruments. It is a significant piece of work which I really recommend to you.

As with all areas of the law, there is also a litany of common law cases which deal specifically with, or which impact the subject of national security law. These common law cases, in my view, seek to do two critical things; (1) establish some of the substantive rules and (2) expound the legal effect of the existing law on public policy one way or the other.

As one of the leading practitioners in this field, I have many times been asked to define, expound or enumerate what National Security Law (NSL) entails; and it doesn’t really seem to matter whether I am in Tunis, Geneva, Garmish, London, Nairobi, San Antonio or Accra. To begin with, defining and setting clean boundaries to National Security Law (NSL) is relatively complex. The field covers areas such as, intelligence practice, national defense, law enforcement, customs regulation, immigration control, public health,  public international law, human rights, border, cyber and maritime matters in which public law, governmental powers and/or state practice is implicated.

Every one of the areas I have touched upon embraces a vast myriad of international as well as national legal issues, public policy considerations, rule of law issues and fast-evolving legal norms creating a truly multifaceted legal domain that is both as deep and challenging as any legal field imaginable. Like any complex field, along the highway, one gets to specialize in certain specific domains. I receive a significant volume of external or international legal and policy work as I do with domestic, and then get to specialize in collective security law, intelligence, national defence, armed conflict law, nuclear, cyber, border and maritime security issues – due to my intense interest in matters involving control and governance of external or transnational security threats.

In 2012, with support and encouragement from  Professor  George  Ofosu Amarh and Professor Justice A. K. P. Kludze JSC, I established Lex Mundus & Cencla – the country’s first law firm dedicated exclusively to national security and business law. The firm acted as a consultant on World Bank and Africa Development Bank projects. We specialized in Anti-Money Laundering (AML), cybersecurity, maritime security, security intelligence, law enforcement, defense, international armed conflict law, human rights, international trade, and investment law. We participated and were specially invited to participate as subject matter experts in national and international security law matters. We nurtured good relations with Harvard University, the KAIPTC,  the GAFCSC, Police Academy, the BNI Training School, Wisconsin University, development partners and helped to create one of the first programs on Forensics, Intelligence, and Security Management. We targetted government-to-government representational work, especially jobs implicating procurement contracting in national security, national defense, intelligence and law enforcement including, employment law issues affecting the national security community. Issues of trade-related human right issues, maritime security, offshore petroleum, and extra-territoriality law. The firm also did work involving AML, the US Foreign Corrupt Practices Act and the UK Bribery Act. During this time, I taught in various Universities,  spoke on national security matters, foreign relations and published three books. The last and most popular being, Principles of Security Law – which if you are aiming to assimilate this field into your practice you should get a copy of.

During the period preceding January 2017,  I served as Director, Legal and Regulatory and Company Secretary to the Expresso Telecom Group (owners of Kasapa Telecom) and later worked with the South Dakota US healthcare giant, Sanford Health, as Chief Legal Officer for operations in Ghana. I moved back to the National Security Community as Chief Legal Advisor ( I had previously served some 15 years) in 2017. In this position, my legal work and requirements come from both domestic enforcement agencies within the national security community and from external transnational entities, such as the UN, AU, ECOWAS, COE, IAEA, GICNT, EU,  World Bank or other Governments concerned with international, regional or sub-regional peace and security. You need to be familiar with both domestic and international law to operate at the cutting-edge. This is important as you tend to meet the best and brightest lawyers from every nation. You also get to participate in the activities of some of the  world’s best institutions as expert participant, tenant, student or alumnae member – e.g. George C. Marshall Center for European Security Studies, the African Center for Security Studies, the Belfer Center at Harvard University, the IAEA’s International School for Nuclear Lawyers, War and Peace Colleges etc. There is significant international travel opportunity to all continents. You also get to advise the most important personalities – H.E. the President, key Ministers, International Bodies and Regional Organisations that decide national, regional and world affairs.

The area of international trade, investment, and human rights are linked to national security and the rule of law.

Ghana, for example, is the 70th largest export economy in the world and the 111th most complex economy according to the Economic Complexity Index (ECI). In 2017, Ghana exported $17.1B and imported $13.2B, resulting in a positive trade balance of $3.9B. In 2017 the GDP of Ghana was $59B and its GDP per capita was $4.49k. Our top exports are Gold ($8.35B), Crude Petroleum ($2.97B), Cocoa Beans ($1.77B), Cocoa Paste ($538M) and Coconuts, Brazil Nuts, and Cashews ($325M), using the 1992 revision of the HS (Harmonized System) classification. Its top imports are Cars ($793M), Delivery Trucks ($442M), Refined Petroleum ($415M), Rice ($369M) and Non-fillet Frozen Fish ($278M).

The top export destinations of Ghana are currently India($5.09B), China ($1.9B), Switzerland ($1.84B), South Africa ($918M) and the Netherlands ($911M). The top import origins are China ($3.08B), the United States($1.1B), India ($660M), Belgium-Luxembourg ($637M) and the United Kingdom ($587M).

Ghana borders Burkina Faso, Cote d’Ivoire, and Togo by land and Benin and Nigeria by sea.

Foreign policy and the extra-territoriality laws in your closest trading partners is of considerable interest in this field. To illustrate, for example, if you regularly advise commercial companies that trade with the US in sensitive for example, you will need to be aware of for example:

• National security reviews of foreign investments in or acquisitions of U.S. companies under the Foreign Investment and National Security Act (FINSA) administered by the Committee on Foreign Investment in the United States (CFIUS).
• The Foreign Corrupt Practices Act of 1977 is a United States federal law known primarily for two of its main provisions: one that addresses accounting transparency requirements under the Securities Exchange Act of 1934 and another concerning bribery of foreign officials
• U.S. trade embargoes administered by the Office of Foreign Assets Control (OFAC) within the U.S. Treasury Department against other countries
• Munitions export controls under the International Traffic in Arms Regulations (ITAR) administered by the Directorate of Defense Trade Controls (DDTC) within the U.S. State Department
• “Dual-use” export controls under the Export Administration Regulations (EAR) administered by the Bureau of Industry and Security (BIS) within the U.S. Commerce Department
• Nuclear technology export controls administered by the office of International Regimes and Agreements (OIRA) within the National Nuclear Security Administration (NNSA) of the U.S. Energy Department and nuclear commodities export and import controls administered by the Nuclear Regulatory Commission (NRC)

The UK has been a leader in the development of soft law mechanisms to support corporate respect for human rights.  These include the development of professional standards against which Private Security Companies can be certified as they implement the International Code of Conduct for Private Security Providers (ICoC). Understanding of these instruments is vital when dealing with the corporate governance or corporate responsibility of UK firms in oil, mining or relate extractive businesses for example when a number of UK businesses operating in Africa tend to focus on.

The UK Companies Act 2006 sets out the requirement for quoted companies to report on human rights as part of their duty to provide a strategic (non-financial) report on an annual basis where it is necessary for an understanding of the business (section 414C (7)(iii) refers. For advocates who are interested in human rights and rule of law, for example knowing and directing advocacy efforts at the UK’s Human Rights & Democracy Department, of the Foreign & Commonwealth Office (FCO) may be inherently useful.

The Foreign Corrupt Practices Act (FCPA)  Act has extra-territorial reach both for UK companies operating abroad and for overseas companies with a presence in the UK.

UK companies doing business overseas.

Companies registered in the UK must take note of the extra-territorial reach of the Bribery Act. A company can commit an offense under section 7 of failure to prevent bribery if an employee, subsidiary, agent or service provider (‘associated persons’) bribes another person anywhere in the world to obtain or retain business or a business advantage.

A foreign subsidiary of a UK company can cause the parent company to become liable under section 7 when the subsidiary commits an act of bribery in the context of performing services for the UK parent. If the foreign subsidiary were acting entirely on its own account it would not cause the UK parent to be liable for failure to prevent bribery under section 7 as it would not then be performing services for the UK parent.

However, the UK parent might still be liable for the actions of its subsidiary in other ways such as false accounting offenses or under the Proceeds of Crime Act 2002.

There are considerable international opportunities for lawyers specialing in national security and business law. Where rule of law issues are constantly in friction with  the behavior of state, non-state and individual actors

The rule of law ensures that international law and the principles of justice apply equally to all States and are equally adhered to. Respect and promotion of the rule of law generate an enabling environment for obtaining lucrative international work with over 50 UN, AU, RECs. It also provides opportunities for legal academics and experts to participate and be engaged as consultants at international, regional, national even corporate levels both for rulemaking and policy development. This is a perfect fit for lawyers, be we tend to be active in advocacy and our extraordinary background training involves critical thinking.

So what are some of the lucrative and fast-evolving areas in national security law? : cyber, maritime, transnational crime and borders. What allied areas of retraining are particularly necessary, international law, trade and public law including, cyber, maritime, regional, borders and criminal law.

LEGAL PRACTICE DEVELOPMENT: ROLES, AND OPPORTUNITIES

Knowledge, experience, and understanding of the substantive law are critical first and foremost. There are vast opportunities for lawyers in NSL  given the complexities of the 21st century international and national security arena, national security laws and policy or strategy should be developed with a great understanding of the most effective and efficient approaches to dealing with threats in accordance with national and international laws.

From the classroom to chambers, lawyers take on diverse roles at the national level. One such role is to serve as a barrister/advocate prosecuting matters involving national security interests. In performing this task lawyers must fight for the best interest of the state (client) and not the political outfit which runs the state. This surely is in consonance with the very duties of the lawyer, recognized by the rules governing the practice of lawyers even in Ghana.

Another role played by lawyers in the national security field is to serve as policy counselors or advisors. Here, lawyers in both public and private practice provides advice to the state agencies, foreign powers, government ministeries of the President.  Closely related to this role is the oversight supervision of a head or lead counsel. In Ghana, this oversight position is conferred on the Attorney General who is to ensure that all state agencies keep in line and adhere to the relevant roles governing security.

The role of lawyers in the development of global as well as national security policies and strategies are crucial to ensuring that state and non-state actors operate within the rule of law. Thus meeting obligations under municipal and international law. Lawyers have a continuing role in (translating conventions into domestic instruments and setting up compliance yardsticks to measure conformity to the rule of law.

Within the international community bodies such as the United Nations, focus on security policies which are then formulated into conventions, resolutions, and recommendations and again, the role of lawyers become essential.

Ghana is under faces a variety of criminal maritime threats with considerable land border management challenges. Offshore, threats undermine security in its coastal waters as well as hurt prospects for economic development, including piracy, terrorism, illegal oil bunkering, narcotics trafficking, illegal fishing, and environmental degradation, transnational criminal organizations such as human trafficking, money smuggling, and the illicit flow of arms and weapons.
Each of these threats creates an opportunity for a lawyer ranging from maritime lawyers, defense lawyers, immigration lawyers, prosecutors, etc.

An example is the Ghana – Cote D’Ivoire border dispute that was decided at International Tribunal for the Law of the Sea (ITLOS). The lead lawyer although a Ghanaian practice outside this jurisdiction because he had the expertise in maritime and boundary space. The question, therefore, is could any of us have been consulted to do the work he did? That opportunity for us (lawyers) in Ghana slipped away.

Ghana has begun negotiations with Togo on the maritime boundary delimitation and that opens another opportunity for lawyers with the expertise to play a role in the process. It may end with an agreement or at ITLOS and at any of this forum, a lawyer role is important. It is unfortunate that Ghana cannot boast of about twenty (20) maritime lawyers but we have a wide maritime space coupled with the increasing threats of piracy and other forms crimes at sea will require lawyers with expertise prosecute, defend, advice, etc.
The whole security community ranging from international organizations to national institutions engage the lawyers as external solicitors to advice, defend, drafting agreements and policies and also provide training for the institution. Some are engaged as consultants to do specific work. An example is what is provided for in Sections 1 and 5 of Act 526, the establishment of NSC, REGSECs and DISECs to deal with security threats in the country. Lawyers have a critical to play and thus create and thus, create opportunities for the smart lawyers to be engaged in the development and implementation of their policies and strategies.

Prosecution and defense opportunities also exist in large part because of the criminal or public law quality of NSL. There’s no better place to engage the criminal legal system than within its changing National Security Community.

Civil litigation for domestic and international tort claims, actionable wrongs and breaches of contract on the part of security industry contractors also offer unending work.

One inevitable and perhaps most important role of lawyers and law professors lies in the teaching of national security law to students. The very nature of national security law is that it evolves. The next generation of practitioners must, therefore, be provided with in-depth insight on the intricacies of the law, the permissible actions, and inactions and the rules governing times of emergency. Within academia, where I have considerable experience, I observe that  all over the world there are lucrative scholarship options for lawyers, legal academics and policymakers in Security, Intelligence and Defence (SID)Matters

Lawyers and policymakers n NSL are part of a closely-knit global epistemological community that is increasingly both highly technical and specialized.  We meet around the world routinely to advance new concepts and responses to national and international security threats, security intelligence law,  or issues like border management, disarmament, nuclear proliferation, internal security and human rights, national security policy and strategies in CMBLID, CVE, TNOC, and terrorism. Heavily funded and driven by UN, AU, EU, ECOWAS, GICIT, USG, REGs, etc.

The Bar must appoint qualified professionals with subject matter knowledge to key public institutions with a national security character, such as the Police Service Council, Armed Forces Council, Fire Service Council, Immigration Service Board, etc. Specialists in NSL have an unequivocal advantage in terms of such specialize appointments.

Cyber Security law is the new area which offers vast opportunities for lawyers. The opportunities range from policy and strategy formulation to prosecution, advice defense both at the international and national level. The opportunities are wide because Ghana is still developing its policy and strategy which will eventually result in either drafting new legislation or fill the gaps in the existing laws. From where l stand, we may draft cyber law to secure that space. Remember now Ghana is doing everything digital and the associated threats must be address. I can say that the majority of us gathered here do not know the laws governing the cyberspace.

CONCLUSION: AN OVERVIEW OF CAREERS IN THE NATIONAL SECURITY FIELD

Many career opportunities lie open to both fresh graduates and practicing lawyers in the national security arena. These opportunities include:

a. Career Opportunity in Central Government and state security agencies. In Ghana, these agencies include the Attorney General’s Department, the CID, Security Services and National Security Council Secretariat.

b. Career Opportunities in Local Government Level: Here lawyers may serve on the local government or regional security councils of their regions or states advising the states on matters involving the security of the state particularly regional security.

c. Careers in Law Enforcement, Intelligence or Defence (LEID) as an advocate you may join the LEID to serve as the in-house counsel advising on the permissible limits which officers trek in order to protect the interest of the state.

The internal security agencies, under the Ministry of Interior, are critical to internal security and public safety. The police service exists to maintain law and order, detect and prevent crime (Constitution of The Republic of Ghana 1992, Article 200, Police Service Act 1970, (GH), Act 350). It is the frontline internal security organization and enforcer of the country’s criminal laws. The Prisons Service as an important element of the criminal justice system is responsible for the safe custody of inmates and the provision of correctional services to inmates in an environment of respect for human rights and dignity. (Constitution of The Republic of Ghana 1992, Article 205, National Redemption Council Decree 1972 (GH), NRCD 46). The Customs Division and Immigration Service are border security agencies responsible for revenue collection and regulation of entry and movement of persons in and out of Ghana. (Customs, Excise and Preventive Service Law (Management) Law 1993 (GH), PNDCL 330, Ghana Revenue Authority Act 2009, Act 791, Immigration Service Act 2016, Act 908). The Ghana National Fire Service has a mandate for fire fighting and rescue operations. It focuses on fire and safety education and enforcement of fire and safety regulations in all organizations. It assists the police and other investigative agencies in arson investigations and violations of fire and safety regulations (Ghana National Fire Service Act 1997, Act 537). The area of criminal justice has witnessed, and continue to see significant legislation in response to changing trends in crime and threats to internal security such as terrorism, cybercrime, kidnapping and violent extremism, cross-border crime and illegal migrants, hence opportunities for special expertise in cybercrime law, terrorism law, kidnapping, international human rights law which are required by the Investigation and prosecution departments and for advisory roles at the Ministry of  Interior.

d. Careers in Policy Think-Tanks, Research, Academia, Training Centers, Advocacy Organisations and Human Rights NGO’s: As an expert on national security you may join various think tanks in your country, whose focus are on the national security of the country and how to help the government protect the national security of the country.

The above areas are critical areas of civil society activity. They are crucial to shaping public policy and advancing security sector governance, and effectiveness. Notable among these organizations include Kofi Annan International Peacekeeping Training Centre, Center for Strategic and Defence Studies (CSDS), West African Network for Peacebuilding (WANEP), Commonwealth Human Rights Initiative (CHRI), Amnesty International. Opportunities for security research, national security law training, security policy analysis and advocacy. The CSDS focuses on cybercrime, maritime security, border security, and terrorism, requiring legal expertise in the various areas for research, training and policy analysis.

e. Legislators and Drafters of National  Security Law

My brief bio below may possibly shed light on me, my field of legal expertise and some of the legal things national security lawyers around the world get to do with the law they studied at law school:

BIO- Dickson is an internationally known national security lawyer, author, and legal academic. He is currently Chief Legal Advisor at the National Security Council Secretariat and Coordinator of the US-Ghana Security Governance Initiative (SGI). He was educated at University of Ghana, Harvard University and the Ghana School of Law.

His expertise lies in the law and governance of extreme risks, particularly those bearing on national security – chemical, biological, radiological and nuclear (CBRN) threats, money laundering, terrorism, cyber, maritime, border and internal security crises. He graduated Uni in 1996 and has 22 years experience in operational roles implicating corporate management and leadership, as well as strategic experience advising top government officials and policy-makers on security-legal matters. Dickson is a rigorous litigation lawyer and one of Africa’s leading attorneys in security governance, national security intelligence, cyber, border, maritime, CBRN and nuclear matters. He is a member of the Ghana Bar Association; the International Bar Association; the International Society for Military Law and Laws of War; the Business Law Society of Ghana and the World Institute for Nuclear Security.

He was the recipient of the 1st Prize of the Ghana School of Law’s 44th Moot Court Competition held at the Supreme Court. In 2016, he also won the 4th Joy Fm Debate on national security intelligence with Dr. Kwesi Aning. He has authored three (3) books, is an Adjunct University lecturer, Board member of Ghana’s Financial Intelligence Center (FIC) and National Focal Point for the International Criminal Court (ICC). His interests span Business, international law, and National security.

International Contribution:

Dickson has contributed heavily to international security programs hosted by the UN, AU, the U.S. Government, and the EU. He has served as moderator, speaker, team leader, participant, and expert in many countries including Ghana, Kenya, Nigeria, Togo, Malawi, Ethiopia, Colombia, UAE, Russia, UK, U.S. Germany, Switzerland, and China. His articles and books have also been read and cited internationally.

I encourage lawyers to venture into this field to help advance Africa’s contributions to NSL  The field of CBRN, nuclear and cyberlaw are for example some of the most exciting fields where international and regional legal work is booming. My second book ‘Dickson on Principles of Security Law’ is, however, a must-read for those who are new to the field of security, and particularly national security.  By the way, copies are just a phone call away on +233(0)24102264.

Acknowledgments:

Lex Mundus & Cencla, Corporate and National Security Lawyers, West Africa

Center for Strategic and Defense Studies, Africa

The Dickson Foundation (TDF)

Prof. George Ofosu-Amaarh, Fmr Dean UG Law School, University of Ghana

Lawyer Kwaku Boadu, Kwame Gyan & Associates

Mr. Alexander Adu-Antwi, Law Student Intern, Lex Mundu & Cencla, West Africa; and National Security Reseach Fellow, CSDS Africa

Mr. Moses Jatuat, National Security Research Fellow, CSDS Africa

N.B The Dickson Foundation offers many resources related to global and national security law on the following pressing concerns: Cyber Crime & National Security,  Global Terrorism,  Maritime Security, Unmanned Systems, Climate Change, Pandemics, Epidemics, and Immigration.