Introduction
It is a truism that democracy is threatened in the absence of respect and recognition for human rights. Increasingly, the recognition of human rights among the comity of nations has advanced from the known traditional rights as the right to life and freedom of speech to such rights as the right to be forgotten as recognized among nations like the United States of America.[1]
The 1992 Constitution of Ghana proclaims these rights under Chapters 5[2] and 6.[3] These chapters provide for civil and political rights, socio-cultural rights and economic rights. All persons, whether natural or juristic are under a constitutional mandate to respect and uphold the fundamental human rights recognized under Ghana’s Constitutional dispensation. These rights are enjoyed by both citizens and non-citizens and cannot be derogated from unless sanctioned by law.[4]
The present topic invites an interrogation of the jurisprudence of the Ghanaian Courts in the enforcement and adjudication of human rights disputes. The paper shall be structured in four parts. The first part shall attempt a definition of human rights. This part shall also consider some of the human rights guaranteed under the Constitution and the attitude of the courts in their enforcement and recognition. Part two shall consider the enforcement of fundamental human rights in Ghana. This part will entail a discussion of the jurisdiction of CHRAJ, the Courts, issues of locus standi and the reliefs obtainable. Part three focuses on developing issues concerning the enforcement and adjudication of human rights disputes. The final part shall be the conclusion and reflections.
Human Rights Defined
Despite the various strands of definition of human rights in the literature, the consensus appears to be of two schools of thought. The first, the broader view is grounded in natural law and the other, the restricted view on the positivist school of thought. The naturalists view human rights as entitlements or claims that human beings are entitled by virtue of their humanity.[5] This thinking views human rights as an inherent entitlement of man. Therefore, in so far as a person is a human being, he ought to be accorded and enjoy such rights. For the positivists, human rights are nothing but entitlements proclaimed by the law to be enjoyed by human beings. Therefore, the test for the enjoyment here must be based on it being posited in a written law. The positivists school will therefore not recognize any right as a human right unless the law sanctions same.
Depending on its nature and character, a particular right may be classified as fundamental. Fundamental human rights however differ from jurisdictions. In Ghana, chapter 5 of the Constitution, 1992 recognizes some of these fundamental human rights as the right to life, freedom of speech, freedom of movement, privacy rights, fair trial rights and spousal rights.
The essence for the respect for fundamental human rights has been captured under the first International instrument on human rights, the 1948 Universal Declaration of Human Rights . The declaration proclaims that recognition of these rights is the foundation of “freedom, justice and peace in the world.”[6]
These rights, at the very least defines the essence of man. It seeks to uphold the dignity of human beings, ensures and promotes justice, equity and equality. Their recognition and enforcement promotes accountability of institutions and upholds the democratic credentials of the state.
Fundamental Human Rights under the 1992 Constitution of Ghana
Two chapters of the Constitution have been devoted to human rights. Chapters 5 and 6 focus on fundamental human rights and directive principles of state policy. The rights as recognized under chapter 6 of the Constitution are mainly economic in character and are only presumed justiciable.[7]
Article 12 of the 1992 Constitution under Chapter 5 of the Constitution proclaims that:
- The fundamental human rights and freedom enshrined in the chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforce by the Courts as provided for in this Constitution.
As provided in clause 2 of Article 12, the fundamental human rights as recognized under the Constitution must be respected by all persons, whether natural or artificial and whether as citizens or not.
The Constitution 1992, seems to have been grounded on the naturalist perspective of human rights as the rights are not limited to only those that are expressly provided for in the Constitution. Article 33(5) of the Constitution states that:
The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.
Thus, where a person can demonstrate that a particular right is inherent in a democracy and that that right is intended to secure his freedom and dignity as man, he shall be entitled to the enjoyment of such right although the right may not have been expressly provided for in the 1992 Constitution of Ghana.
The enjoyment of rights in Ghana is however not absolute. It is subject to the larger public interest and the respect of the rights of others.[8] It needs further mention that the enjoyment of rights is associated with the correlated obligation of the performance of duties.[9]
Selected Rights under the 1992 Constitution of Ghana
Civil, political and socio –economic rights
The 1992 Constitution provides for several rights that may be categorized into civil and political rights, socio-cultural rights and economic rights. The Constitution makes provision for the protection of life, protection of personal liberty, respect for human dignity, protection from slavery, protection of privacy of home and other property, fair trial, equality and freedom from discrimination, property rights of spouses, administrative justice, educational rights, cultural rights and practices, women’s rights, children’s rights, rights of disabled person, rights of the sick and protection of rights by the courts.
[1] This right allows a person to object to the continuous retention of information bout him such as past convictions to remain on the internet.
[2] Chapter 5 of the Constitution constitutionalises the fundamental human rights
[3] This chapter contains the directive principles of state policy.
[4] Article 12 of the 1992 Constitution.
[5] Jack Donnelly, ‘Universal Human Rights: In Theory and Practice’ (2003) Cornel University Press,1-19.
[6] Preamble to the Universal Declaration of Human Rights.
[7] Ghana Lotto Operators Association and Others v National Lottery Authority [2007-2008] 2 SCGLR 1088.
[8] Article 12(2).
[9] Article 41 obliges citizens to inter alia promote the prestige and good name of Ghana, uphold and respect the laws of Ghana, respect the rights and freedoms of others and generally contribute to the development and well-being of the State.
Civil and Political Rights : Freedom of speech and expression
The freedom of all persons in Ghana to speech and expression is guaranteed under Article 21(1)(a) of the Constitution , 1992. This freedom has been augmented by press freedom and freedom of the individual as guaranteed under Article 162(1) -(4). This freedom is held in high esteem in every liberal democracy.
It is an avenue for citizens and other stakeholders to put the ruling government on its toes through constructive criticisms. As noted by Article 12(2) of the Constitution, the enjoyment of rights must be correlated with the respect of the rights of others. Failure of a person to exercise his or her right to free speech and press in tune with the constitutional sanctions may lead to the tortious action of defamation or even contempt.
In the Supreme Court case of New Patriotic Party v Ghana Broadcasting Corporation,[1] the Supreme Court had the occasion to pronounce on the freedom of expression and speech under the Constitution, 1992. The facts of the case are that in 1993, when the Budget Statement of the Government of Ghana was read, it sparked several controversies and criticisms among the general public. As a result, the Minister of Finance on behalf of the government appeared on radio and television to defend the budget. The plaintiff, a registered political party and then the main opposition party applied to the defendant, a statutory body responsible for radio and television broadcasting to be allowed air time to also present its views on the budget. This application was however refused by the defendant. The Plaintiff sued in the Supreme court for a declaration that the defendant’s conduct was a violation of its rights under Articles 55(11) and 163 of the 1992 Constitution. More so, it argued that the defendant breached its right to freely express itself when it refused to grant it airtime.
The Supreme Court unanimously held that the defendant’s refusal to allow the Plaintiff airtime amounted to institutional pre-selection of information to the public which was against the spirit of the Constitution. The Court emphasized that the said refusal was an unnecessary fetter on the plaintiff’s freedom of expression and the right to information of the Ghanaian populace.
At page 373 Justice Amua-Sekyi intoned persuasively as follows “The temptation to ride roughshod over the opinions of others must be resisted; for it is only the free flow of ideas and discussion that error is exposed, truth vindicated and liberty preserved.”
However, in the case of Republic v Independent Media Corporation of Ghana (Radio Eye Case)[2] the Supreme Court reiterated that the enjoyment of this right is not absolute. As justice Acquah noted in that case, there is the need for “some form of regulatory measures and limitations” as they are “essential to ensure sane and healthy establishment and operation of broadcasting services.”[3]
These two cases supra clearly shows the ambit of the right to free speech in Ghana. Whiles NPP v GBC received recognition and enforcement, the Radio Eye Case cautioned against abuse of this right. Members of the public must therefore be measured in their utterances so as not to be caught in abusing the enjoyment of this right.
Freedom of Association and the Courts
On the freedom of association, one scholar , Alexis de Tocqueville has posited as follows :
The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.
This reflection is constitutionalised under Article 21(1)(e) of the 1992 Constitution. The article provides for the freedom of association of all persons including the right to form and or join trade unions or other associations be they national or international. In realizing this right, the state has been duty bound under article 37(2) to put in mechanisms.
The case of Mensima & Others v Attorney-General [4]presented the Supreme Court of Ghana with the opportunity to uphold this right. The plaintiff submitted before the Supreme Court that the Manufacture and Sale of Spirits Regulation 1962 (LI 239) an existing law which required the plaintiffs as a pre-condition to distilling akpeteshie to belong to a registered distillers co-operative society. More so, the joining of such corporation was essential to grant a licence to the plaintiff to operate their distillery.
The Supreme Court however declared the said law unconstitutional as violating the freedom of association of the plaintiffs. Justice Acquah asserted that “the essence of freedom of association is the liberty or lack of compulsion on the individual to form or join an association.”[5] He noted that the right of association includes the right not to associate with persons one does not wish to associate with.
The above authority teaches the learning that, no person can be forced to exercise his right or freedom guaranteed under the Constitution and that any attempt to fetter same will receive resistance from the courts.
[1] [1993-94] 2 GLR 354
[2] [1996-97] SCGLR 258
[3] p283.
[4] (1996-97) SCGLR 676
[5] at 715.
In New Patriotic Party v Attorney –General (CIBA Case)[1] the Supreme Court again upheld the freedom of association guaranteed under the Constitution, 1992. In this case, the plaintiff challenged the constitutionality of the Council of Indigenous Business Association Law , 1993 (PNDCL 312). The law required certain associations specified in its schedule to be compulsorily registered with the Council. More so, the Council was to be controlled by a Minister of state. The court was thus called upon to answer the question whether the compulsory registration with the Council and ministerial control was a violation of the Association’s right to form or join an association of their choice. The Supreme Court answered this in the affirmative.
Bamford Addo JSC (as she then was) pronounced as follows “Freedom of association means freedom of the people to voluntarily join together to form associations for the protection of their interests free from state interference. This freedom is effectively taken away in this case by the compulsion of the stated organisations to join CIBA…”[2]
The courts and Freedom of Assembly and the Right to Demonstrate
The freedom to freely assemble and demonstrate, seen as a fundamental freedom is considered a pillar in ensuring healthy multi-party democracy. Article 21(1)(d) of the 1992 Constitution allows for the free exercise of the right to assemble and take part in demonstrations and processions subject to the public interest. The attitude of the courts in Ghana with regards to this freedom was demonstrated in the case of New Patriotic Party v Inspector General of Police[3]. The Plaintiffs in this case , then the main opposition party staged a demonstration in Accra against the government’s budget. The police however stormed the demonstration and dispersed the crowd on the grounds that the Plaintiff failed to obtain a permit as required by the then Public Order Decree, 1972 (NRCD 68). The Plaintiff therefore brought an action challenging the constitutionality of sections 7,8, 12(c) and 13 of NRCD 68 on the grounds that those sections violated the right to demonstrate guaranteed under Article 21(1)(d) of the Constitution upon the requirement of a permit.
In a unanimous decision, the Supreme Court held that sections 7,8 and 13 of NRCD 68 violated the right of assembly on the account of their requirement for a prior permit. For Justice Hayfron-Benjamin the Constitution 1992 was “intended that the citizens of this country should enjoy the fullest measure of responsible Human and Civil Rights. Therefore ay law which seeks to abridge these Rights and Freedoms must be struck down as unconstitutional. The requirement of a permit or licence is one of such abridgement of the constitutional right.”[4]
Rights of Disabled persons
Article 29 of the 1992 Constitution proclaims the rights of disabled persons in Ghana. Under the said provision, disabled persons have the right to live with their families or with foster parents and also to participate in social, creative or recreational activities.[5] A person who is disabled must not be subjected to differential treatment in respect of his residence other than that required by his condition or by the improvement which he may derive from the treatment.[6] Further if the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions there shall be as close as possible to those of the normal life of a person of his age. In administering justice, the courts are under a constitutional duty to take into account the physical and mental conditions of any person who is disabled and who is a party to the action.[7] The Constitution further requires that public places provide appropriate facilities for disabled persons and finally, the Constitution under Article 29(7) requires that special incentive be given to disabled persons engaged in business and also to business organisations that employ disabled persons in significant numbers.
In conformity with Articles 29(8) and 37(2)(b), Parliament has enacted the Persons with Disability Act, 2006 (Act 715) to detail out and fortify the rights of disabled persons guaranteed under the 1992 Constitution.
Whereas the courts will uphold the existence of these rights of the disabled, some of their enforcement being positive in character may pose certain challenges. This is mainly due to them being contingent on the availability of resources. Therefore, the absence of such resources could lead to their denial.[8]
It is however hopped that our courts will continue to influence political decisions in order to fully ensure the enjoyment of this right as happens in jurisdictions such as South Africa, Norway and Philippines.[9]
Administrative justice as a fundamental human right
The 1992 Constitution under Articles 19, 23 and 296 provides for the rules of natural justice in relation to the performance of the functions of administrative bodies, officials and persons exercising discretionary power. In particular, Article 19 incorporates rules on fair trials in criminal matters. Even in civil actions, Article 19 (13) of the Constitution, 1992 demands that their adjudication be fair to each party. Article 23 requires administrative tribunals and officials to comply with the due process of law. Likewise the requirement that due process be followed in the exercise of discretionary powers by sate officials a have been provided for under Article 296 of the 1992 Constitution.
On the requirement that administrative bodies and persons exercising discretionary powers follow due process and also comply with the rules of natural justice, the case of Awuni v West African Examination Council[10] is apposite. In this case, following a preliminary investigation that established that the plaintiff had engaged in examination malpractices, the defendant cancelled the result of the appellant and twelve others. According to the defendant, the cancellation decision undertaken was necessary to protect the sanctity of the examination. Further according to them, the examination malpractices were apparent and hence there was no need for the Appellant to be invited. However, the court held that by not inviting the appellant before cancelling the result, the defendant had breached the audi alteram partem rule of natural justice and that was a violation of Article 23 of the Constitution. The court noted that the conduct of the defendant was not fair and same was unreasonable. Sophia Akuffo JSC (as she then was) stated that “Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect qualities of fairness, reasonableness and legal compliance.”[11]
In similar tone, Kpegeah JSC (As he then was) pronounced as follows:
I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights…”[12]
The constitutional demand that administrative bodies, institutions and persons exercising discretionary powers follow due process of law in the execution of their mandate is very crucial in ensuring that the fundamental human rights guaranteed under the constitution is not infringed upon by these bodies and or persons under the alter of administrative function.
The Ghanaian Courts and socio-economic rights
Socio-economic rights under the 1992 Constitution include the right to education, property rights, rights of workers in employment and property rights of spouses. Such other socio-economic rights as the right to water, food, adequate housing and health care have not had express provision in the Constitution. However as provided for under Article 33(5) of the Constitution 1992, these rights are enforceable if an applicant can satisfy the court that they are inherent in a democracy and intended to secure the freedom and dignity of man.
The realization of most of these socio-economic rights have been provided for under Chapter 6 of the Constitution which contains the Directive Principles of State Policy.[13]
The debate on the justiciability or otherwise of the directive principles of state policy is now settled in the case of Ghana Lotto Operators Association and others v National Lottery Authority [2007-2008] 2 SCGLR 1088. The Supreme Court speaking through Date-Bah JSC (As he then was) held that :
A presumption of jusiciablity in respect of Chapter 6 of the Constitution would strengthen the legal status of ESC human rights in the Ghanaian jurisdiction. Of course, there may be particular provisions in Chapter 6 which do not lend themselves to enforcement by a court. The very nature of such a particular provision would rebut the presumption of justiciablity in relation to it. In the absence of a demonstration that a particular provision does not lend itself to enforcement by courts, however, the enforcement by this Court of the obligations imposed in Chapter 6 should be insisted upon and would be a way of deepening our democracy and the liberty under the law it entails. Applying this presumption of justiciability, our view is that the economic objectives laid out in Article 36 of the Constitution are legally binding and are not merely a matter of conscience for successive government of our land. The objectives, have though, to be liberally construed in order not to interfere with the democratic mandates of successive governments.
Per this decision therefore, the directive principles of state policy which mainly centers on the realization of the economic rights of the state must be presumed justiciable unless the very nature of that right does not lend itself to being justiciable. For instance, the courts are likely to hold as not justiciable such rights which are positive in character and therefore a sine qua bus non to their enjoyment is the availability of resources.[14]
The jurisdiction in human rights cases in Ghana
Under the 1992 Constitution, it is only the High Court that has exclusive original jurisdiction in the enforcement of fundamental human rights. This jurisdiction of the High Court is noted in Article 140(2) of the Constitution which provides that “The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.” In that regard, as provided by Article 33(1) of the Constitution, where a person alleges hat a provision of the Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, that person can apply to the High Court for redress.
These two provisions therefore oust the jurisdiction of any court, be it the Court of Appeal or the Supreme Court from entertaining at first instance any matter the substance of which is human rights.[15]
However where a matter before a court is not a human rights matter but in the course of the proceedings an issue bothering on the enforcement of human rights arises, the court will be fortified to deal with it and the matter ought not to be referred to the High Court.
Recently, the Supreme Court has proclaimed that, notwithstanding the exclusive jurisdiction given the High Court in the enforcement of human rights matters, where the matter albeit a human rights matter is of greater public interest, the court shall have the jurisdiction in that regard. This was the holding in the case of Adjei Ampofo v Accra Metropolitan Assembly & Attorney General.[16]
By virtue of Article 130 of the Constitution, 1992 the Supreme Court shall be the only court with jurisdiction to interpret and enforce the Constitution. This means that, even where the high court is deciding on a human rights matter but the matter raises an issue of constitutional interpretation, the High Court must stay proceedings and refer the matter to the Supreme Court.[17]
[1] [1996-97] SCGLR 929.
[2] at 751.
[3] [1993-94]2 GLR 459.
[4] Ibid, 505-506.
[5] Article 29(1) of the 1992 Constitution.
[6] Article 29(2).
[7] Article 29(5).
[8] This is reflected in Article 38(3) of the Constitution 1992 which provides inter alia that ‘ the state shall subject to the availability of resources provide ….resettlement of disabled persons.’
[9] See for instance the South African case of Minister of Health and Others v Treatment Campaign and Others [No. 2] CCT8//02A the South African Supreme court held that it could make orders impacting on the policy of the government provided that the laws or the Constitution envisaged a basic item for the citizenry.
[10] [2003-2004] SCGLR 471.
[11] At page514
[12] at page 489
[13] Per Article 34(1) of the Constitution, 1992, the Directive Principles of State Policy shall guide ‘all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting the Constitution or any other law and in making and implementing any policy decisions, for the establishment of a just and free society.’
[14] Federation of Youth Associations of Ghana (FEDYAG) (No 2) v Public Universities of Ghana& Ors [2011] 2 SCGLR 1081.
[15] Edusei v Attorney General [1997-98] 2 GLR 1; Joseph Sam v Attorney-General [2000] SCGLR 305.
[16] [2007-08] SCGLR 611
[17] Article 130(2) of the Constitution 1992; Republic v High Court, Accra Ex Parte Commission on Human Rights and Administrative Justice (Anane Interested Party) [2007-2008] SCGLR 213.
Making an application to the High Court for the enforcement of human right
The procedure by which a person could seek the enforcement of his right is governed by Article 33(1) of the Constitution, 1992 and Order 67 of the High Court Civil Procedure Rules, 2004 (C.I. 47). Under Order 67 rule 1, a person who seeks redress in respect of the enforcement of any of the human rights in relation to that person under Article 33 must do so by way of an Application to the High Court.
Locus Standi
An application to the High Court pursuant to Article 33 of the 1992 Constitution will not be entertained by the High Court unless the applicant is the victim. This requirement is reflected clearly in the wording of the article that “Where a person alleges that a provision of this Constitution on the fundamental human rights and freedom has been, or is being or is likely to be contravened in relation to him…”. Busy bodies cannot therefore purport to seek an enforcement of human rights. The enforcement under Article 33 is therefore personified.
The person within Article 33 is not limited to only natural persons but also covers artificial or juristic persons like companies, partnerships and political parties in Ghana.[1] As provided for under the Interpretation Act,[2] a ‘person’ includes “a body corporate, whether corporation aggregate or corporation sole and an unincorporated body of persons as well as an individual.”[3]
In Nana Adjei Ampofo v AG, the Plaintiff was not the victim of human rights abuse however, the Supreme Court exercised jurisdiction in the case on the basis of the significant public interest issue that was raised in the case. It stands to reason that in appropriate cases hinging on public policy and public interest, the Supreme Court will make pronouncement seeking the enforcement of rights of others where although the suit was brought by a person not the subject of human rights abuse.
Mode of making application
The application for the enforcement of human rights under Article 33 shall be made by a motion that is supported by an affidavit and signed by the Applicant himself or his lawyer detailing the following particulars :
- The full name and address for service of the applicant and the lawyer of the applicant;
- The facts upon which the applicant relies
- The relief or remedy sought by the applicant and the ground on which the applicant seeks the relief or remedy; and
- The full name and address for service of any person directly affected by the application.[4]
A copy of the application shall also be served on the attorney-general and any such person at the direction of the court.[5]
Time for making the application
The application must be submitted to the High Court within six months of the occurrence of the alleged contravention or three months of the applicant becoming aware that the contravention is occurring or it is likely to occur.[6] Notice of the application must be served on the Attorney General and all parties named in the application if the court finds same desirable. [7]
Response to the Application
Within twenty-one days of service of notice of the application on the Attorney General or any other person affected by the application, the Attorney-General or that person shall file an affidavit in answer to the application. The respondent must state facts and law, if any, on which the respondent relies in support of his case.[8]
Where a party seeks to amend, the party must seek leave from the court and upon grant amend the application or file supplementary affidavit within seven days of the grant of the leave.
Setting down the application for hearing
Within twenty-one days of the service of an affidavit in reply to the application the applicant shall set down the application for hearing and he shall give notice of same to the other parties in the proceedings.[9]
During the hearing of the application a party may call any witness in support of the application and likewise, the court is also allowed to call any witness it deems relevant to testify.[10]
Reliefs Granted
In securing the enforcement of its human rights jurisdiction, the high court may issue directions and orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate.[11]
Any person dissatisfied with any of the orders and or directions issued by the High Court may appeal to the Court of Appeal and has a further right of appeal to the Supreme Court.[12]
Emerging issues in the recognition and enforcement of Fundamental Human Rights in Ghana
Judicial Pragmatism in the Enforcement of Privacy Rights
Following Anas Aremeyaw Anas’ expose #No. 12, there has been series of debates on his method of getting information to advance his cause. Without delving into a discussion on issues of entrapment which is a primary subject regarding the extraction of information, it suffices to say that, there has been a new breath into the enforcement of privacy rights guaranteed under Article 18(2) of the Constitution 1992. The article frowns upon interference with the privacy of a person’s home, property, correspondence or communication ‘except in accordance with law and as may be necessary in a free and democratic society for pubic safety or the economic well-being of the country, for the protection of health or morals , for the prevention of disorder or crime or for the protection of the rights or freedoms of others.’
The Supreme Court in two recent decisions , Abena pokua v Agricultural Development Bank[13]and Raphael Cubagee v Michael Yeboa Asare & Ors [14] has affirmed the privacy rights of individuals under Article 18(2) of the Constitution. The court has reasoned that a person cannot without the consent of another secretly take recordings of communication of that other and tend to use same as evidence in court.
In Raphael Cubagee v Michael Yeboah , in the course of testifying in a land case before the District Magistrate, the plaintiff sought to tender in evidence audio recording of a telephone conversation he had had with one another wherein that order ( a Rev. Minister) sought to corroborate the case of the Plaintiff. Counsel for the defendant objected to the tendering on the basis that same was clandestinely procured which was in violation of the privacy rights of the Rev. Minister. In consequence the court referred the matter to the Supreme Court to decide whether the secrete recording was a violation of privacy rights under Article 18(2) of the Constitution and whether same could be tendered in evidence. The Supreme Court speaking through Pwamang JSC held that the said secret recording was in breach of the privacy rights and same was inadmissible as evidence. In upholding the privacy rights under Article 18(2) of the Constitution, 1992 Pwamang JSC maintained that the essence of the constitutional guarantee of the privacy rights of the individual was to protect ‘the individual against unwarranted intrusion, scrutiny and publicity and guarantees his control over intrusions into his private sphere.’ The court further pointed out that the individual may decide the extent to which he will allow such interference by stating that ‘[W]hen a person talks on telephone to another, the conversation is meant to be oral communication since if the speaker wanted the speech in a permanent form he cold elect to write it down or record and send to the other person…It would be wrong for the person at the other end to assume that the speaker has waived his rights of privacy and consented to him recording the conversation and rendering it in a permanent state.’
It needs mention that the court did not lay out a blanket rule. A judge has the discretion to assess whether the evidence procured in breach of Article 18(2) ought to be admitted nonetheless by considering the nature of the rights that has been violated, the manner and degree of the violation, the gravity of the crime being tried the manner in which the offence was committed as well as the severity of the sentence which the offence attracts.
The Right of every accused person to all evidence and other materials the prosecution decides to rely on in a criminal case or in the possession of the prosecution relevant to the case
In securing the enforcement of fair trial in criminal cases in Ghana, the Supreme Court has adopted the policy of disclosures that exist in civil suits in Ghana. In civil cases parties at the case management stage are enjoined to make disclosures and exchange documents that are necessary to facilitate the trial and avoid surprises. There has however not been any judicial pronouncement on this in criminal trials despite the adequate fair trial provisions in the Constitution.[15] However, in the recent Supreme Court case of The Republic v Eugene Baffoe-Bonnie and 4 Ors,[16] the Supreme Court adopted the approach in civil cases and concluded that accused persons are also entitled to all evidence that the prosecution intends to rely on in the course of the trial. This in the view of the court is essential to allowing such accused persons to mount adequate defence and thereby satisfying the right to fair trial.
In fortifying the above decision of the Supreme Court, there has been a recent 2018 practice direction wherein her ladyship the Chief Justice has directed that the following materials must be disclosed by the prosecutor to the accused[17]:
- Copy of the Charge Sheet/Indictment
- Copy of the Facts of the Prosecution’s case
- Copies of Statements made by the Accused person before commencement of trial (such as Cautioned Statement, Charge Statement, Statutory Statement as well as any further other Statements made by the Accused person before trial commences).
- Copies of all Witness Statements made to the Police and other law enforcement or investigative bodies by persons who may or may not be called upon to testify for the Prosecution at the trial.
- Copies of any documents in possession of the Prosecution which are relevant to the case and which the Prosecution may or may not tender at the trial.
- Photographs of any real evidence (objects) in possession of the Prosecution which are relevant to the case and which the Prosecution may or may not tender at the trial, such as guns, cutlasses, knifes, etc.
- Copies of any other materials in possession of the Prosecution which are relevant to the case including audio, video and other electronic recordings as well as any unused materials which may assist the Accused person in the preparation of his defence.
- Copies of any exculpatory evidence in possession of the Police and other law enforcement or investigative bodies (the Prosecution is under an obligation to inquire from the relevant law enforcement or investigative bodies the existence of such evidence procure and preserve same for disclousre0
- Further that without prejudice to paragraph h, the court on its own motion or on an application by the Accused (Defence), may order that any statement, document, object or material in possession of the Police or other law enforcement or investigative bodies that is relevant to the case but which the Prosecution has not disclosed by disclosed.
Whilst enjoying disclosures from the prosecution, the accused person is also without prejudice to the presumption of innocence also for purposes of case management, disclose the names and addresses of all witnesses he expects to call should the Court call upon him to enter into his defence at the close of case for the Prosecution. Further, where before making disclosure the Prosecution requires an undertaking of non-disclosure by the Accused person for the protection of third parties or the public interest, the Accused person shall provide such undertaking before the disclosure is made.
Again, the accused shall indicate if there are nay witnesses he expects to call by use of witnesses summons to enable the summons to be issued on time and where the accused intends to put forward as a defence a plea of alibi, the Accused shall give timely notice of the alibi.
These disclosures enjoined on both the prosecution and accused to be made before a criminal trial furthers the right to fair trial of all accused persons and it is a welcoming step in our criminal justice system.
[1] New Patriotic Party v Attorney-General (31st December case) [1993-94] 2 GLR 35.
[2] Interpretation Act, 2009 (Act 792).
[3] See also the Supreme Court case of New Patriotic Party v Attorney-General (31st December case) wherein the Supreme court noted that Article 33 of the Constitution availed artificial persons such as political parties.
[4] Order 67 rule 2(1) of C.I. 47.
[5] Order 67 rule 2(2) of C.I. 47.
[6] Order 67 rule 3 (1) of C.I. 47.
[7] Order 67 rule 3(2) & (3) of C.I. 47.
[8] Order 67 rule 4 of C.I. 47.
[9] Order 67 Rule 5als.
[10] Order 67 rule 6 of C.I. 47.
[11] Order 67 rule 8 of C.I. 47.
[12] Order 67 rule 9 of C.I. 47.
[13] Suit No. CA/J4/31/ 2015 dated 20th December 2017.
[14] Case No. J6/04/2017 SC dated 28th February 2018.
[15] Articles 19 and 14 of the 1992 Constitution.
[16] Suit No. J1/06/2018, judgment given on 6th June 2018.
[17] An accused has been interpreted to include the lawyer for the accused.
Conclusion and Reflections
This lecture has attempted a cursory overview of the human rights regime in Ghana. It considered the courts with jurisdiction over human right cases, the enforcement procedures and some emerging rights that have received firm pronouncement by the Supreme Court.
The learning being taught is that, the naturalist’s perspective of human rights is very operational in Ghana and that the courts will at all times seek the enforcement of any right that satisfies the tests of being inherent in a democracy and intended to secure the freedom and dignity of man.
The entitlements of these rights as noted enjoins the respect of the rights of others and as the popular aphorism goes, where one’s right ends, another’s begins. It should not be forgotten however that some of these rights, especially the economic rights may be positive in character. That is, their enjoyment may be contingent on the availability of resources. In that regard, the courts will be slow to make them justiciable. However, as demonstrated the courts should be ready to greatly influence political decisions as the rights of individuals cannot be toiled on the alter of politics.
THANK YOU!