The Attitude of Ghanaian Courts towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical Review.
Introduction
Ghana has a chequered past; one interspersed with both civilian and military governments since its independence from Great Britain in 1957. The concept of human rights enshrinement in the Constitution was not foreign to the Ghanaian setup. Prior to the adoption of the 1992 Republican Constitution human rights were provided in the 1969 and 1979 Constitutions of Ghana. It was provided to a limited extent in Chapter Six of the 1979 constitution of Ghana. During the deliberations leading to the adoption of the 1992 Constitution, the Committee of Experts noted that even though there has been compartmentalization of human rights into civil and political right; and economic, social and cultural rights, they felt that whatever the material scope of the rights, all persons were entitled to them. (Paragraph 137 of Report of Committee of Experts on Proposals for Draft Constitution of Ghana).
The 1992 Constitution of Ghana has its Bill of Rights being Chapter Five of the Constitution. A reading of the constitution evinces a number of civil and political rights as well as socio- economic rights in the Bill of Rights. The socio-economic rights include: protection from deprivation of property (Article 20), property rights of spouses (Article 22), right to work under safe, satisfactory and healthy conditions and right to form trade unions (Article 24), right to educational opportunities and facilities (Article 25), women’s rights (Article 27),children’s rights (Article 28), rights of the disabled (Article 29). Also, a number of these socio-economic rights such as the right to a healthy environment (Art. 36(9)); the right to work; the right to good health care and the right to educatio
The Directive Principles of State Policy (DPSP) are to serve as guidelines in the application and interpretation of the constitution (Article 34(1) of the 1992 Constitution of Ghana). Due to this, it has been suggested that the directive principles are not justiciable. However, a provision in the constitution stipulates that the fundamental human rights mentioned in Chapter Five are not to be regarded as excluding others not specifically mentioned (Article 33(5)). In other words, Chapter Five does not exhaust the socio-economic rights.
The question then is, whether the socio-economic rights which are not mentioned in chapter Five are rights which can be enforced by the courts? The High court has been charged with the duty of enforcement of the fundamental rights with right of appeal to the Court of Appeal and then, the Supreme Court. A number of cases involving socio-economic rights under chapter Six of the constitution have come before the courts for interpretation.
1. The Legal Arguments Emanating from the Courts
The Ghanaian decisions to be examined in this respect are: the New Patriotic Party (NPP) v Attorney-General (the 31st December case, 1993-94, 2 GLR 35- 192) ; New Patriotic Party (NPP) v Attorney-General (CIBA case 1996-97, SCGLR 729-803) and Ghana Lotto Operators Association & 6 Ors. v National Lottery Authority (Lotto case, 23rd July 2008, unreported)).
In the 31st December case, an action was brought by the plaintiff, a registered political party in the supreme court for a declaration that the celebration of the 31st December as a statutory public holiday was inconsistent with articles 3, 35(1) and 41(b) of the Constitution. Amongst the issues for determination was whether the directive principles of state policy were justiciable. This was because the declaration sought was in respect of two provisions under chapter Six of the constitution.
Adade JSC, in giving the lead judgment of the court stated that “The Directive Principles of State Policy contained in the 1992 Constitution, Chapter Six were justiciable because the Constitution as a whole was a justiciable document and accordingly, if any part was non-justiciable, the Constitution itself had to indicate it”. But no provision in the constitution had indicated that chapter Six was not justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be internal to the constitution otherwise it would be in conflict with it and thus be void and inadmissible. He stated further that “although in some quarters it had been said that the use of the phrase ‘shall guide’ in article 34(1) of the 1992 Constitution implied that the directive principles were not meant to be justiciable, the argument was weak and unimpressive and that though, all laws were for guidance, they had not on that account, be said to be non-justiciable”.
It must be said that though this was not a unanimous decision of the house either some members of the house inferring the non- justiciability of the directive principles from the Committee of Experts and Consultative Assembly reports, it must be said that the deliberations leading up to its adoption in the 1979 Constitution of Ghana does not support such a position nor does the express language in Article 34(1) suggest same. The majority decision is the one supported as such a decision can be said to be the natural deduction and conclusion to be inferred from the preamble and Article 1 of the constitution that the will of the people shall be supreme and that the fundamental human rights and freedoms shall be protected and preserved.
The CIBA case was concerned with a declaration sought under article 2(1) of the 1992 constitution by the NPP to the effect that the Council of Indigenous Business Association (CIBA) law was inconsistent and thereby contravened Articles 21 (1) (e), 35(1) and 37(2)(a) and (3) of the 1992 constitution of Ghana. The defendant raised a preliminary objection to the suit on the ground that the articles sought to be relied on by the plaintiff fell under chapter Six of the 1992 Constitution titled Directive Principles of State Policy (DPSP) and were thus not justiciable. In ruling on the preliminary objection to the action, the majority of the house held that the Directive Principles of State Policy had the effect of providing goals for legislative programmes and a guide for judicial interpretation but were not of and by themselves legally enforceable by any court.
According to Bamford Addo JSC, as a mouth piece of the unanimous majority, the Directive Principles of State Policy were of and in themselves, not justiciable. She made reference to Par. 95-97 of the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana especially par.96 which stated that the principles should not of and by themselves be legally enforceable by any court. She however qualified this statement to the effect that they could be justiciable when read in conjunction with other enforceable provisions of the constitution by reason of the fact that the courts are mandated to apply them, they become justiciable. Also, that any provision in chapter Six that could be interpreted to mean a guaranteed fundamental right also became justiciable. She concluded by stating that the justiciability of any provision under Chapter Six of the constitution would rest on the peculiar facts of the case presented before the court. The position stated by Bamford Addo remained the position as regards the directive principles of state policy until a new position was stated by the Supreme Court of Ghana in 2008 in Lotto case.
The Supreme Court decision in the Lotto case can be said to be the most recent and hence the current position of the law on the Directive Principles of State Policy. In this case, a reference was made to the Supreme Court of Ghana for a determination as to whether The National Lotto Act, 2006, Act 722 violated Articles 33(5), 35(1) and 36(2) of the 1992 constitution of Ghana.
The background to the case concerned the issue of a writ by some private lotto operators in Ghana by virtue of newspaper announcements by the defendant established under the National Lotto Act, 2006 to the effect that no person other than the National Lotto Authority from operating any form of lottery in Ghana. The plaintiffs who were aggrieved sought a declaration inter alia that, Act 722 violated the afore-mentioned provisions.
Date- Bah JSC, giving the judgment of the court made some very interesting pronouncements on the justiciability of the Directive Principles of State Policy. It is this aspect of the case that shall be subject to our perusal. After establishing the fact that the plaintiffs had failed to make a case concerning the first two articles, he stated that the most relevant issue to be determined was whether the Act violated Article 36(2) of the constitution. He examined this article by stating that an issue was justiciable if it was capable of being settled by a court. For him all the provisions in the constitution were justiciable because it contained the most important rule on political governance.
In so stating, he reiterated the view earlier expressed by Adade JSC in the 31st December Case that all the provisions in the constitution were justiciable unless the constitution categorically stated otherwise. He distinguished the restraint on Indian judges to adjudicate on the Directive principles by reference Article 37 of the Indian Constitution which unequivocally stated that the Provisions in Part IV therein was unenforceable by any court as against a non- express exclusion in the Ghanaian constitution. After examining the Committee of Experts report on the adoption of the constitution of Ghana, he came to the conclusion that there was no language in the constitution suggestive that the Directive principles are not of and by themselves legally enforceable by any court. He stated that even if the original intention of the Committee may have being to make the principles unenforceable that did not appear in the constitution as such.
He continued that as the problems of the nation changed, the interpretations of the constitutions by the judiciary also had to change to reflect modern practices. A statement he made which is at the heart of this article bears repeating. He stated that the rights set out in chapter Six are predominantly the economic, social and cultural rights which by international and domestic practice are becoming just as fundamental as the rights in chapter Five.
The enforceability of these economic, social and cultural rights was a legitimate purpose for the court to seek to achieve through appropriate purposive interpretation and so any interpretation to Article 34 of the constitution should take into account the purpose of expanding the range of enforceable human rights in Ghana. He emphasized the need for the elaboration and enforcement of economic, social and cultural rights in light of the history, culture and legal system as a need of the present times and for the test of Article 34 if it could help meet this need, then the court should fulfil it.
He added that a presumption of justiciability in respect of Chapter Six of the constitution would strengthen the legal status of socio- economic and cultural rights in the Ghanaian jurisdiction and that any provision that does not lend itself to enforcement by its nature would rebut such a presumption as this would go a long way to deepen our democracy. Any ambiguity in article 34 should be resolved in favour of enforceability so as to strengthen the enforcement of fundamental human rights as a core value of the current legal and constitutional system.
Date-Bah however cautioned that the enforceability of these economic, social and cultural rights did not mean that the implementation in respect of it would be the same as the civil and political rights embodied in Chapter Five. The court thus needed to be flexible and imaginative in determining how provisions under the Chapter Six would be enforced.
Aside the courts, a body clothed with competence to hear complaints on the fundamental human rights is the Commission on Human Rights and Administrative Justice (CHRAJ) hereinafter known as CHRAJ. CHRAJ which is an elaboration of the Ombudsman in the 1979 constitution has now per Article 218(a) and section 7(1) (a) of the CHRAJ Act the mandate to investigate complaints of violations of fundamental rights and freedoms. In line with this mandate, CHRAJ has given a number of decisions on the fundamental human rights specifically the socio-economic rights. However it has not given a decision in respect of the justiciability of socio-economic rights.
2. Conclusion
Having recognized that the CIBA case was a departure from the 31st December case and that there was a conflict between two previous decisions, of the supreme court and thus the court was free to choose between the two or formulate a different rule, the court still went ahead to choose a presumption of justiciability of chapter Six of the 1992 constitution. This is probably due to the fact that the court recognized the increasing trend in various jurisdictions to this position as a need of our time and hence important that it does likewise.
After a reading of the various cases, it can be boldly stated that the Ghanaian position on the Directive Principles and thus, the socio- economic rights has now been established by the Lotto case and has been resolved in favour of the justiciability of the socio- economic rights. Ghana has therefore joined hands with other jurisdictions to safeguard the protection of the socio- economic rights, thus changing the attitude of the courts in that direction.
Oswald Seneadza is a Senior Lecturer in the Faculty of Law of Kwame Nkrumah University of Science and Technology, Kumasi. He is currently Head of Department of Public Law and the Assistant Editor of KNUST Law Journal. He teaches Public International Law, Administrative Law, Environmental Law, Principles of Law. His research interest is in the areas of Environmental Protection and Human Rights
