Epistolary Jurisdiction of the Indian Courts and Fundamental Human Rights in Ghana's 1992 Constitution: Some Jurisprudential Lessons
Dr Ben Kunbor
Member of Parliament Ghana
This article aims to demonstrate how the choices made by the Indian judiciary has yielded some payoffs in advancing the rights of vulnerable segments of the Indian society. However, such choices are not necessarily a panacea to all human rights evils. It is a choice that has its fair share of internal and external contradictions. Certainly, no easy victories or even difficult ones are expected in such choices but it is a positive and confident first step to which many more can follow. It will then look into Ghana's Constitution of 1992 and the human rights protected therein.
Keywords: India, Ghana, Human Rights, Constitution, Civil and Political Rights.
This is a Refereed article published on 19 December 2001.
Citation: Kunbor B, 'Epistolary Jurisdiction of the Indian Courts and Fundamental Human Rights in Ghana's 1992 Constitution: Some Jurisprudential Lessons', Refereed article, Law, Social Justice & Global Development (LGD), 2001 (2) <http://elj.warwick.ac.uk/global/issue/2001-2/kunbor.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/kunbor/>
Human Rights discourses have happened to the world and in a big way too. The new millennium should therefore begin with a new discursive emplacement. The previous millennium was characterised by the proliferation of human rights enunciations and many possibilities for human rights. It was also one in which we discerned a convergence of human rights discourses. The hitherto polemics between Civil and Political Rights (CPRs) with Economic, Social and Cultural Rights (ESCRs) was beginning to be less merciless; the gap between non-justiceable and justiceable rights was beginning to narrow (though still present); and the difference between the politics of human rights and the politics for human rights (Baxi, 1999, p.131) was beginning to dawn on wider segments of society. We can agree with Santos that we are in the frontier of human rights thought and actions. Whether this would be a last or a lost frontier, would very much be conditioned by the political and socio-economic contingencies of individual national human rights spaces as they are informed by the global human rights space. Like all frontiers it would be characterised by:
Very selective and instrumental use of the traditions brought to the frontier by the emigrants; invention of new forms of sociability; weak hierarchies; fluidity of social relations; prosmicuity of strangers and intimates [and] mixes of heritages and inventions (De Sousa Santos, 1995, p.491).
The outcome of this frontier experience will further depend very much on the lessons humanity (in a generic sense) has learnt from human rights violations in the previous millennium. As a last human rights frontier we will not allow the inhuman violation of human rights over the past century to be a lost memory and as a lost frontier we will re-invent the wheel of human rights debates with no clear practical agenda for their realisation. In the case of the latter, the ghosts of the unhelpful binaries in human rights discourses will continue to rule our thoughts and actions from their graves. As Santos notes, the frontier experience is one of subjectivity in which one is in a better position to understand the oppression that the centre (from which human experience seeks to escape) reproduces and hides by means of hegemonic strategies (De Sousa Santos, 1995, p.497).
The saying goes that human calamity often forecasts their shadows. As we sit in this frontier we can look back to the future of human rights realisation in its contradictions; of progressive trends as well retrogressive attitudes arising from epistemological inertia. In the former, human rights jurisprudence shows bold steps either as judicial activism, public interest or social action litigation or epistolary jurisdiction . In the latter, human rights knowing have not transcended the epistemic boundary between human rights law and human rights subjectivity in some jurisdictions. Thus, human rights issues will continue to be tucked in with market conditions and as the privilege of only lawpersons and the self-acclaimed human rights activists.
Ghana's human rights provisions in her 1992 Constitution are a radical departure in its constitutional history. However, its praxis since the coming in to force of the Constitution (January 7, 1993) require some reflexivity in terms of how such legal norms translate in the human rights lives of vulnerable groups of the society. As we will argue in this article, the presence of the normative expression of ESCRs as against CPRs in human rights actions and judicial processes is one of absence. An explanation for such imbalance as we will argue, lies in yet another of Santos's frontier metaphor- coasting; a situation of experiencing limits without suffering it. In coasting as indicated by Santos, the further away the limits the greater the opportunity for autonomy but an extra step making the limits invisible might turn the exhilarating autonomy in to destructive chaos (De Sousa Santos, 1995, p.497).
Human rights actions in Ghana continue to be guided by its nostalgic past, regardless of the darkness of that past. Though the innovative provisions of the 1992 are noted, human rights actions and thought remain uncertain as to how to appropriate its emancipatory potential. It is in the light of this latent tension between the normative expression and practical realisation of human rights in Ghana that this article seeks to draw some lessons from India on how this can be brought about.
While our discussion will focus on judicial activity in Ghana we do not consider it to be the only path to the realisation of human rights. The advocacy work of civil society organisations, informal dispute resolution mechanisms by other institutions and more significantly the various forms of defiance and resistance of excluded groups to oppressive conduct of the wielders of public or private concentration of power are equally significant. However, the paradox of human rights actions in Ghana lies in the fact that the courts of law are it's final official arbiters. As to whether human rights actions in other institutional settings can be sustained depends very much on the jurisprudential orientation of the courts.
Our argument will be that the universality of human rights as basic or inalienable rights do not lie in their attachment to the human person very much as his/her limbs or arms, and he/she cannot loose them without loosing his person; but that what is basic, universal and inalienable about human rights is the right to be human and to remain human (Baxi, 1989a, pp.152-3). We will argue that the right to be human is premised on the materiality of social relations that affects the human condition. More often than not the human condition is hardly an issue in normative expressions of rights language. Such language sees only atomistic individual bearers of rights in which their material conditions are taken as a given or considered to be external to legal questions.
In this article we will draw firstly on some political, social, economic and ethical questions that have sufficiently moved the judges of the Indian courts towards new forms of human rights actions and thought; now understood popularly as epistolary jurisdiction. Secondly, we will indicate the salient features of the human rights provisions in Ghana's 1992 Constitution and how they illuminate or darken such new trends. We will illustrate with some decided cases by the Ghanaian courts and the Ghana Commission for Human Rights and Administrative Justice (CHRAJ) the trajectory of human rights discourse in Ghana. Thirdly, we will draw some lessons from the new approaches to judicial actions and thought in human rights law in India and their relevance to the Ghanaian context.
This article adopts an interdisciplinary approach to analysing legal issues and as such it might be cold comfort for the epistemological legal purists. As we will show in this article, human rights in its normative form address the concerns of the life chances of People in society. Therefore, without an appreciation of the social milieu within which the human rights norms are posited they will remain abstract concepts to the victims of violations.
The premise on which the notion of epistolary jurisdiction and associated notions emerged is the distinction often made between judicial activism and judicial conservatism. The dictum of Lord Denning who sees judges as divided between timorous souls and bold spirits though of a different genre, can be considered precursor to such characterisation of judicial attitudes. However, the focus of this article is on what can be considered a peculiar phenomenon that developed within a segment of the Indian judiciary about two decades ago. As noted by Bhagwati:
Social action litigation is the product of juristic and judicial activism on the part of some of the justices of the Supreme Court of India. Today we find that in the third world countries there are a large number of groups that are being subjected to exploitation, injustice, and even violence. In this climate of violence and injustice, judges have to play a positive role and they cannot content themselves by invoking the doctrines of self-restraint and passive interpretations (Bhagwati, 1987, p.20).
The Socio-political contexts that gave rise to such juristic attitudes in India are varied. However, for purposes of our narrative we identify two such contexts as also relevant to Ghana. The first context relates to the issue of the Indian judiciary seeking new ways to provide justice for the deprived and vulnerable sections of the Indian society and to fulfil the constitutional aspirations of the vast masses of the poor and underprivileged segments of society (Bhagwati, 1987, p.20). The Indian legal architecture designed for a colonial situation and its jurisprudence structured around a free market economy is held to be incapable of addressing legal problems engendered by such social differentiation. Secondly, human actions and relationships have assumed a collective rather than an individual character as they refer to groups, categories and classes of people. Thus, social rights are said to have emerged in the socially stratified Indian society and needs intervention by the state and other public institutions for their realisation.
Significant among these social rights are; freedom from indigence, ignorance, discrimination, the right to a healthy environment, social security, and freedom from commercial and corporate oppression. To such oppression Bhagwati poses the significant questions:
How can law based on the rights of individuals dealing with atomistic justice arising out of specific transactions meet the challenge of collective claims of groups- especially disadvantaged groups? How will this law dispense well-balanced, equitable and distributive justice? Can twentieth century justice be produced out of a nineteenth century mould? (Bhagwati, 1987, p.22).
These are problems he invites lawyers, judges and social activists to resolve in developing countries where there is enormous poverty and ignorance in which social minority groups cry out for social justice.
One of the main problems considered by the Indian judiciary, as impeding the development of effective use of law and the judicial system in aid of the disadvantaged is their accessibility to justice. The Indian Courts found sanctuary under articles 32 and 226 of the Indian Constitution. Article 32 states:
a) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by [i.e. Part III of the Constitution, containing fundamental rights] is guaranteed.
b) The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which ever may be appropriate, for the enforcement of any rights conferred by this part.
Article 226 provides that:
Every High Court shall have power [...] to issue to any person or authority, including in appropriate cases any Government [...] directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
As observed by Bhagwati, notwithstanding the widest terms in which these provisions are couched they meant nothing to the large bulk of the Indian population as the courts were for a long time used by only:
'the affluent and who [...] were repeat players of the litigation game. The poor having been priced out of the judicial system' (Bhagwati, 1987, p.24).
Beyond the lack of awareness and assertiveness of the majority poor, a further obstacle to effective access to justice was the traditional rule of locus standi. A legal tradition that insist that only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal rights or legally protected interests can bring an action for judicial redress.
To address these traditional legal difficulties the Indian Supreme Court took the view that it was necessary to depart from them. As noted by Justice Bhagwati (as he then was) in M C Mehta v. Union of India (1987):
It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect fundamental rights of the people and for that purpose this court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights (Ibid, p.1089).
This new jurisdictional basis asserted by the Indian courts in human rights matters is succinctly captured in Bhagwati's narrative. We allow him to speak for himself at length:
This has been done by providing that where a legal wrong or a legal injury is caused to a person or to a class of persons by reason of violation of their constitutional or legal right, and such person or class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group acting bona fide can main an application in the High Court or Supreme Court seeking judicial redress for the legal wrong or injury caused to such a person […] The Supreme Court also felt that when any member of the public or bona fide social organisation espouses the cause of the poor and downtrodden, he be able to move the court by just writing a letter (Bhagwati, 1987, p.24).
Thus, the procedure for moving the court by just addressing a letter on behalf of the disadvantaged class of persons, evolved into what is now popularly known as epistolary jurisdiction in Indian human rights jurisprudence.
The details of the Indian experience are littered in a series of decided cases. We cannot go into the ramifications of such a dense body of case law within the space of this article. However, other scholars have made reviews and commentaries on significant aspects of some of the cases (see Cottrell, 1993, pp.102-126, Baxi, 1988, and Agrawala, 1985). For now we turn to the relevant provisions of Ghana's 1992 Constitution and human rights actions.
While the current human rights and freedoms provisions are informed by Ghana's past constitutional experiences, the terms of reference of the Committee of Experts who drafted proposals for its 1992 Constitution is a useful starting point in appreciating them. The said term of reference was contained in the legislation that constituted the Committee (Committee of Experts, 1991). The relevant provision enjoined the Committee to among others make proposals that will:
Guarantee, protect and secure the enforcement of the enjoyment by every person in Ghana of the fundamental human rights and freedoms including the freedom of speech, freedom from arbitrary arrest and detention, freedom of assembly and association including the freedom to form political parties, women's rights, children's rights, workers rights and the rights of the handicapped (Ibid, section 4 (2)).
A significant proposal of the Committee was the acknowledgement of hitherto non-justiceable economic, social and cultural rights as enforceable human rights and freedoms. The relevant proposal states that:
The Committee also elaborated the social and economic aspects of human rights that are of particular relevance to the conditions of Africa and the developing world generally. Some of these aspects are included in the proposed Directive Principles of State Policy, except that here they are more precisely elaborated as rights. In addition the Committee also proposes specific provisions relating to the rights of categories of persons whose situations calls for special guarantees and protection in the (Constitution Republic of Ghana, 1991, par.65).
Most aspects of the Committee's proposals on human rights found expression in the 1992 Constitution. Relevant provisions include the following:
a) Articles 13 to 21 on civil and political rights;
b) Articles 22 to 30 on economic, educational, cultural, women's, children's, the sick and disabled persons rights;
c) Article 12 enjoin the executive, legislature, judiciary, all organs of government, natural and legal persons; to respect and uphold rights enshrined in the Constitution; and they are enforceable as such in the courts of law.
A significant provision is article 33(5) of the Constitution that states that:
The rights, duties, declarations and guarantees relating to fundamental human rights and freedoms specifically mentioned in chapter 5 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 (emphasis added).
This provision is central to issues we will raise in subsequent sections of this article and therefore will be considered in some detail later.
Other economic, social and cultural rights are contained in the Directive Principles of State Policy. The salient features are as follows:
a) The state through necessary action is to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and secure maximum welfare, freedom and happiness for all in Ghana (Ghana Constitution, 1992, article 36 (1));
b) It is to particularly take necessary steps to establish a sound and healthy economy that recognises that the most secure democracy is the one that assures the basic necessities of life for all it's people (Ghana Constitution, 1992, article 36 (2) (e));
c) That the state shall enact appropriate laws to ensure effective participation in development processes; rights of access to agencies and officials of the state in other to realise such participation; and to protect the rights of vulnerable groups in the development process (Articles 37 (1) and (2);
d) The state shall take steps to encourage the integration of appropriate customary values into the fabric of the national life and the conscious introduction of cultural dimensions to relevant aspects of national planning (Article 39 (1)).
If human rights enunciation were directly proportional to their realisation one could say without much equivocation that Ghana can be ranked one of the highest in the world of human rights innovations and standards. Unfortunately the constitutional proclamations seem to be rather too loud that they drown the dearth of their realisation. It is therefore instructive to explore how these constitutional provisions are translated in practice.
The celebrative tone of Hayfron-Benjamin in Edusei v. Attorney General & Another (1996/97) is indicative of the courts reception of some (if not all) of the human rights and freedoms provided in the Constitution. He observes that:
[...] It is not for nothing that chapter 5 is captioned FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS. A broad and liberal interpretation of its articles will ensure that we appreciate the correct intentions of the framers of the constitution. Their intention was that we should have freedom and have it abundantly...(Ibid, p.32) (original emphasis).
Further, in New Patriotic Party v. Inspector-General of Police (1993), the Supreme Court declared that under Article 21 (1) (d) of the 1992 Constitution, no permit was required for holding a public gathering or a demonstration. This decision led to the repeal of the Public Order Decrees . This enactment hitherto required that a permit be obtained from the responsible police officer before public gatherings could be held. They have been repealed and replaced by the current Public Order Act of 1994. Also, in the rather controversial case of New Patriotic Party v. Attorney-General (1993), the majority view of the Supreme Court was that under Constitutional rule, it was unconstitutional for the Government to continue to celebrate the 31st December Revolution as a public holiday with public funds. The reasoning behind the majority view would seem to be that constitutional rule was a democratic form of government with fundamental human rights as its basis. By implication (at least in the Ghanaian case) a revolution does not have these attributes. The jurisprudential basis as well as the constitutional history of both democracy and revolution remains unclear in this judgment. What can be said for certain is that this issue is sufficiently loaded with ideological preferences and we will revisit this case in detail subsequently. Our task for now is to catalogue major lineaments of human rights cases that have come before the courts since the coming into force of the 1992 Constitution.
We can add to the Ghanaian human rights litigation lists Ekwam v. Pianim (1996/97), Republic v. Independent Media Corporation of Ghana & Others ( 1996/97) and In re: NEC, Ex parte PCP (1996/97). This list is by no means exhaustive. Our interests in these cases is not so much their outcome or associated legal reasoning but that they all represent a particular genre of human rights and freedoms we will allude to shortly. Besides other commentators have engaged such issues at length (see Kumado, 1997, pp.34-39).
A discernible feature of all the above cases is that they relate to only civil and political rights with obvious repeat players in the litigation game. By this we are not suggesting that such developments do not advance human rights and freedoms in Ghana. Our argument is that we do not see similar developments on the issues of economic, social and cultural rights provided for in the Constitution. And it cannot be said that such rights are not violated in Ghana.
It might indeed be the case that the victims of such violations have both the duty and burden to activate the legal process. But this is precisely the issue at stake. If Ghana's contemporary political economy is anything to go by it is the rights and freedoms of vulnerable groups of the Ghanaian society who are immediately affected by the latter violations. They are at the same time the social category who lacks both the assertiveness and resources to appropriate the potential of the legal process. For those who have such resources and consider themselves as human rights crusaders, the question is; why are they not sufficiently moved by the daily violations of economic, social and cultural rights in Ghana?
Another discernible feature of this genre of cases is that they show continuity with a particular historical constitutional trend in Ghana- a struggle between political elites of the state against private concentration of power. That such struggles are about who controls the political power turf in Ghana cannot be discounted. It is therefore no coincidences that focus are on the civil and political rights. This 'politics of human rights' is legendary in Ghana. We can consider Re Akoto (1961), Kwakye v. Attorney Genera (1981) and Tuffour v. Attorney General (1980) as significant nodal points of such a development in post-colonial Ghana. Can such politics of human rights become a politics for human rights? Should Ghana's human rights activism be limited to only immediate concerns of the actors? We ask these questions from the backdrop of our new modern social contract captured in the preamble to the 1992 Constitution as:
We the people of Ghana [...] IN EXERCISE of our natural and inalienable right [...] AND IN SOLEMN declaration and affirmation of our commitment to; [...] Human Rights and Freedoms.
It is important that we note that some of the We in the preamble to the Constitution:
Have both bread and freedom; others have freedom and little bread or non at all; yet others have half a loaf (which is better than non, surely) with or without freedom; and still others have a precarious mix where bread is assured if certain (not all) freedoms are bartered (Baxi, 1989a, pp.152-3).
Our argument is that until ordinary Ghanaians begin to see their material concerns expressed in human rights actions (which include human rights litigation), they will continue to be cynical about human rights as lawpersons rights. As rightly noted, human rights will continue to be viewed as:
'a programschrift, a blue print for a just society; but one with vacant spaces, disallowing at the outset the pre-conditions for exercising the right to be human' (Baxi, 1989a, p.152).
While we appreciate the fact that ESCRs can be realised by non-judicial activities of groups and a commitment by the state to their realization, there is an additional importance in litigating over these rights. Firstly, the common law tradition of judicial precedent has become a sacred cow in Ghana's legal discourse. This principle of law has been given constitutional status in terms of binding decisions of the Superior Courts of Judicature in the hierarchy of the Ghanaian court system. Therefore, if no judicial precedent at the highest level of the court system exists on these rights we are unlikely to see a change in judicial attitudes on their enforceability.
Secondly, it gives human rights activists the useful mix of three forms of lawyering suggested by White. He sees lawyering as either: a contest of litigation, a public conversation or lawyering together towards social change (White, 1988). The first relates to the usual form of litigation as an adversarial contest; the second is a situation in which legal action is instituted not for the sole purpose of its outcome but to draw the public attention to the issues at stake; and the third is a process in which lawyers and non-lawyers evolve a critical consciousness as they reflect on injustices of their immediate world and take actions to challenge them (Ibid). The concrete forms of such lawyering techniques employed by the community of the little village of Driefontein in South Africa to resist the apartheid government's attempts at expropriating their land is illuminating. It is a social drama on a legal stage that commends itself to activists of oppressed and excluded social groups. Despite the extreme circumstances of apartheid South Africa at the time it is still the case as in Ghana that there is an unequal ability of all social groups to appropriate whatever liberational potential exists in the law. Therefore, new ways of engaging legal actions become important.
The Commission for Human Rights and Administrative Justice
An important feature of Ghana's 1992 Constitution is the provision for the establishment of a Commission for Human Rights and Administrative Justice (Article 216). The details of its functions are contained in Articles 218 and 219 of the Constitution as well as the relevant sections of the legislation establishing the Commission (see Commission on Human Rights and Administrative Justice Act, 1993, Act 456, Section 7). These functions can be categorised under three broad headings as:
a) The investigation of complaints of violations of human rights, injustice, corruption, abuse of power and unfair treatment;
b) The enforcement of its decisions before the courts of law; and
c) The education of the public on the fundamental human rights provisions in the 1992 Constitution.
In addition to Act 456, the procedure of the Commission is governed by a number of rules contained in the Commission's constitutional instrument (Constitutional Instrument number 17 (C I17)).
Salient features of the legal framework governing the Commissions activities include the following:
a) The power to investigate complaints concerning practices and actions by persons, private enterprises and other institutions, where such complains allege violations of human rights under the Constitution (Act 456, section 7 (1));
b) The mandate to establish regional, district and other lower structures of the Commission that will facilitate its operations (Ibid, section 10); and
c) The provision for either written or verbal complaints as sufficient to invoke the Commission's jurisdiction (Act 456, sections 12-16 and 18, and C I17 generally).
From the above legal framework there are two important features that have the potential to address the human rights of vulnerable segments of the Ghanaian society. These are the informal procedure of lodging complaints before the Commission and the decentralisation of its operations to the regions, districts and possibly to lower levels. An aspect of the traditional court system that prevent poor segments of the society from asserting violation of their rights has to do with both the fact that its procedure is cumbersome, expensive and the fact that only the Superior Courts (High Court, Court of Appeal and Supreme Court) have jurisdiction on issues of violations or alleged violations of human rights (1992 Constitution , article 140 (2)). Yet, both the Supreme Court and Court of Appeal are located in the national capital, with the High Court mostly found in regional capitals. The financial implications for potential human rights litigants outside these areas are obvious. We can therefore say for such communities that human rights justice has a relatively higher price.
In the Commissions first annual report to parliament it indicated that 61.5% of the cases handled over the reporting period were labour related as against 38.5% of all other cases taken together. In the reality of the contemporary political economy of Ghana the reason for the upsurge of such labour related disputes are obvious. A political economy premised on ERP/SAP with the private sector as the engine of growth and the market as its theology has implications not for only the rights of working people but other vulnerable segments of the society as well. This presents a dilemma for the adherents to a liberalised economy as the only path to development and who at the same time see themselves as human rights activists. It is in this light that Baxi's distinction between human rights and market friendly/trade related humans is a useful conceptualisation of human rights discourse (see Baxi, 1996, p.31).
Since the Commission's inception it has handled a large number of cases that are equally diverse. It will be impossible to attempt a commentary on even broad categories of such cases. We therefore use three such cases to illustrate its human rights thinking.
The petitioner in this case was a pregnant lady who received a letter from her employers declaring her redundant from her employment. She contested the position indicating that under section 43 of the labour Decree (NLCD 157) she ought not to be so declared given her pregnancy. The Commission in upholding her contention, declared that her redundancy breached article 27 of the 1992 Constitution; which provides that special care shall be accorded mothers during reasonable periods before and after childbirth. It held further that during such periods mothers are to be given paid-leave.
This Case involved a petition alleging that the confiscation of petitioner's house to the state by a previous government was a violation of his human right and that under section 35 (2) of the transitional provisions of the 1992 Constitution the Commissioner was enjoined to order a return of his house to him. The Commission in dismissing the claim indicated that the petition fell outside the ambit of section 35 (2) of the transitional provisions. It observed that even if it did, the previous government's policy of one-man one-house was commendable; namely, to ensure equitable distribution of the limited houses constructed by the state and to alleviate the problem of housing shortage especially for low income workers.
The complainant was an employee of an airline operating domestic flights within Ghana. The respondent is owner and Managing Director of the Airline. The complainant was dismissed without being given any reasons. In her petition to the Commission she alleged that the respondent had sexually harassed her because she rebuffed his sexual advances. During the hearing of the case she testified to several occasions the respondent had subjected her to unwelcome verbal remarks and physical contact of a sexual nature. The Commission found that the petitioner was discriminated against by the respondent contrary to articles 17 (1), (2) and (3), and 33 (5) of the 1992 Constitution and as such his conduct constitutes sexual harassment, sex discrimination and unwarranted reprisals (see CHRAJ, 1999, 18-22).
Central to the Commission's reasoning in the three cases is its sensitivity to the human condition, gender and the social context in which the human rights provisions has to be rightly posited. As observed elsewhere by the Commissioner:
The myth that economic, social and cultural rights are not important as civil and political rights has been laid to rest. Efforts should be made to give them the same legal recognition. Pursuit of civil and political rights does not justify violation of economic, social and cultural rights (Short, 1997, p.99].
Having sketched the legal framework of human rights institutional actions and thought it is important to raise some questions that arise therefrom for further consideration. Firstly, in what contexts can the Indian experience of epistolary jurisdiction feed into the Ghanaian experience? Secondly, what legal and institutional constraints are likely to impede such a cross fertilisation of jurisprudential ideas? and thirdly, how do we decentre our human rights actions and thought to give the ordinary Ghanaian the right to be human and to remain human?
We appreciate the pitfalls of recourse to the term jurisprudence that is sufficiently warm in controversy. However, for the limited purposes of this article we understand it to denote juristic theory and analysis, which are internal and external to the law. In its internal notion, it denotes the creation and delimitation of the field of law and explores the concepts, terminology and various parts of law. The external notion of jurisprudence denotes the relationships between rules and norms of the legal system; to government, society, ethical, economic, political and social beliefs and practices. In short, to things that are analytically distinct though not causally separated from the law (Patterson, 1953, pp.2-3). Therefore, within the context of human rights law our notion of jurisprudence is understood in terms of how the internal and external relationships of law shape human rights discourse. The external relationship of the legal rules on human rights addresses wider economic and socio-political practices that are the focus of subsequent sections of this article. By this expanded meaning of human rights jurisprudential thinking we avoid the often-false assumption of legal closure as a self-referential system of current narratives of legal autopoiesis (see Luhman, 1988, pp.335-48, also Teubner, 1988, pp.217-41).
A first lesson Ghana can learn from the Indian jurisprudential experience is the break from liberal western legal thought that advocates judicial restraint, impartiality and blindness of the law to the social circumstances of the bearers and victims of human rights. In the words of Justice Bhagwati:
The summit judiciary in India, keenly alive to its social responsibility and accountability to the people of the country, has liberated itself from the shackles of western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice to socially and economically disadvantaged groups (Bhagwati, 1987, p.20).
By this approach the Indian courts accept the social realities of India that are often ignored or considered external to the law. These include acknowledgement that society is differentiated; that such differentiation is socially constructed by the dominant social forces; that such differentiation has implications for the differential ability to appropriate legal rules against violations of rights; and that socially excluded groups are ascertainable as the socially and economically disadvantaged groups. They further acknowledge that given the conflicting interests implicated in human rights actions a choice has to be made in terms of the interests their new jurisprudence seeks to represent. With Shivji, we can argue that:
Once human rights conceptions are placed in their historical context, it is clearly seen that important declarations of rights were a kind of political manifesto of particular classes in the course of class struggle [...] they were cast in the language of universalism [...] universal in proclamation and particular in application (Shivji, 1989, p.51).
Ghana's human rights jurisprudence to a large measure is steeped in natural law (as natural rights) and legal positivism. Suffused within the framework of such dominant discourse lie a number of contradictions that questions what they promise. A few of such contradictions will illustrate the point being made.
Firstly, at the heart of such discourse lies the contradiction between natural law rights and legal positivism. The very basis on which dominant human rights discourse argues that such rights are universal and equally applicable to all people is provided by natural law. As noted:
If the ideology of natural rights was the rallying cry of the rising bourgeoisie, positivism became the ideology of the triumphant bourgeoisie...There were no more ideals to fight for, the is was the ought and therefore there was no need to look beyond existing law and state. Rights were those guaranteed by the state and all talk about inherent human rights was nothing but metaphysical (Shivji, 1989, p.47).
Secondly, as observed by Fritzpatrick the operation of liberal legality in the west still depends on resistant categories of nature such as gender, property and even the very notion of the free individual. And modern law seen as separated from an objectified nature provided the ultimate boundaries with which these categories of nature are constituted (Fitzpatrick, 1989). He raises the issue; how come that such notions of human rights in all its infamy should be applied to those regarded as not greatly emerged from the state of nature; as either underdeveloped or third world peoples? Adelman succinctly summarises these contradictions in the following way:
'under the hammer of natural law and the positivists anvil of raison d'etat lie the mangled bodies and empty stomachs, the twisted hopes and degraded lives, of millions in the developing world' (Adelman, p.36).
Lone but influential voices in Ghana are beginning to appreciate and engage such contradictions in human rights thought. A few excerpts from such voices are instructive:
Ghana, have gone through a series of political convulsions in which various constitutional experiments, political systems and development strategies have been launched with varying degrees of success. A salient feature of this is the abysmal record of human rights violations. Out of this painful experience which is homegrown, we in Ghana have, elected to promulgate a Constitution that enshrines human rights and freedoms which we consider critical to our political, social and cultural welfare. Whatever the origin of these formulations may be, we in Ghana in the light of our own experience, have adopted, adapted and expanded them to address our own needs- to ensure respect for human rights in the political, social, cultural and spiritual sense (Asante, 1997, p.6, emphasis added).
In another contribution in the same forum Graham observes that:
A notable feature of power in Ghanaian society is its authoritarian and unaccountable nature. This is a problem that radiates from parent-child through pupil-teacher, employee-employer to state-citizen relations. This is a key feature of the political economic soil within which the human rights norms of the Constitution were planted.
Whether such articulations would find expression in judicial decisions in human rights matters remain a moot point. As we indicated earlier, issues of ESCRs provisions in the 1992 Constitution have not as yet come before the courts for determination. However, if one examines the jurisprudential basis of previous judicial arguments there is no departure from the jurisprudential traditions of natural law and legal positivism. Two examples are the landmark cases of Kwakye v. Attorney General and New Patriotic Party v. Attorney General (31st December case). A common feature to both cases is that the Supreme Court divided along the lines of the natural law and legal positivist approaches on the understanding of democracy generally and human rights in particular.
The facts of the Kwakye case briefly are that the plaintiff a former Inspector General of Police issued a writ in the Supreme Court for a declaration that he was never tried, convicted or sentenced by the Special Court established under the Armed Forces Revolutionary Council Decree (AFRCD3, as amended). And that his purported imprisonment of twenty-five years imposed on him in absentia as published in the national press was an infringement of his fundamental human rights under chapter six of the 1979 Constitution. At the same time section 15 (2) and (3) of the transitional provisions of the said Constitution provided that:
15 (2) For the avoidance of doubt it is hereby declared that no executive, legislative or judicial action taken by or purported to have been taken by the Armed Forces Revolutionary Council or any person in the name of that council shall be questioned in any proceedings whatsoever, and accordingly it shall not be lawful for any court or tribunal to make any order or grant any relief in respect of any such act.
(3) The provisions of subsection (2) of this section shall have effect notwithstanding that any such action as referred to in that subsection was not taken in accordance with any procedure prescribed by any law.
The Attorney General raised a preliminary objection to the jurisdiction of the court in the light of the above constitutional provision. The court unanimously ruled that the defendant should provide factual basis as grounds for the operation of the ouster clause (see Kwakye v. Attorney General, 1981).
The defendant called three witnesses to testify to facts of the trial or purported trial of the plaintiff. The main issue for the court was whether there was a trial or purported trial of the plaintiff by the AFRC Special Court. On this issue, the Supreme Court divided five to two. The majority opinion relied on the express transitional provisions of the 1979 Constitution and held that:
'a purported judicial action was one whose claim to regularity, both procedurally and substantively was inaccurate but whose intention to be a judicial action was clear' (1981).
It therefore held that the court's jurisdiction was ousted.
The minority view held that the facts did not disclose a trial or purported trial in law and as such the courts jurisdiction was not ousted. The dissenting opinion of Taylor JSC (as he then was) are instructive and needs reproduction:
A capricious action or illegal action is not a judicial action and cannot have the appearance of a judicial action. Now assembling unlawfully in a secret in a caucus or as a court and without hearing evidence as approved by law, to administer unlawful secret oaths and to sentence a person has to resemblance to a judicial action or purported judicial action. It rather resembles a capricious act, or an illegal act (Ibid, Headnote iii).
Though Justice Taylor's argument appears to be based on an interpretation of section 5 of AFRCD3 and section 15 of the transitional provisions in the 1979 Constitution it was informed to a considerable extent by natural law discourse. This can be discerned from his choice of case law that ranged from extant jurisdictions as Israel to Pakistan. Apart from contending that the majority decision was wrong in law he saw it as scandalising:
I must confess that I am scandalised and ashamed that this court system of ours, which is one of the best in black Africa, which has imbibed all the best principles of the British common law tradition and which now has been distilled into it by our, Constitution, 1979, some of the best elements of the jurisprudence of the enlightened world, can be said to be capable of entertaining the secret trial system which is the hallmark of the worst totalitarian regimes of some countries of the world (Ibid, 1055).
The echoes of Rawls distinction of law societies and outlaw societies can be heard in the above assertion by Justice Taylor. The jurisprudential problematic is, by whose standard some societies are defined as the enlightened world and others as totalitarian?
Though the 31st December case is based on the constitutionality of declaring 31st December a public holiday in Ghana it raises important jurisprudential questions, which touch on the essence of democracy in a state and for that matter human rights law. The facts are that the government of Ghana announced that the 31st of December 1993 was to be observed as a public holiday in accordance with section 1 of PNDCL 220. The plaintiff, a national political party issued a writ in the Supreme Court for a declaration that the public celebration of the overthrow of a legally constituted government on the 31st December, 1981, and the financing of such a celebration from public funds contravened the spirit and letter of the 1992 Constitution- particularly articles 3, 35 and 41 of the Constitution.
Though this case raises a number of important legal questions our interest is in the extent to which the celebration of the '31st December Revolution' with public funds threatens the 'realization of freedom and justice, sovereignty of the people, the Constitution, and law' in Ghana as provided in articles 35 (1) and 41 (b) of the Constitution.
On this issue as in the Kwakye case the Supreme divided five to four. The salient arguments of the majority opinion are summarised as follows:
That the transitional provisions under section 34 of the 1992 Constitution indemnified persons involved in the 31st December coup, which presupposed that their conduct was improper or unlawful. And that it would be incongruous for the public to 'seek to romanticise the same event with carnivals and route marches' (per Adade JSC; as he then was).
That the effect of the 1992 Constitution was to frown upon the violent overthrow of a duly constituted government and to place an embargo on future coups. As such 'the admission that a violent overthrow of government occurred on 31st December, 1981 forecloses any sanctioning of its public celebration in a constitutional era' (per Francois JSC).
The minority opinion held that the celebration of the 31st December Revolution as a public holiday was neither inconsistent with neither the letter nor the spirit of the 1992 Constitution. As observed:
The human memory is eternal and everlasting. One cannot obliterate historical events from the minds of men who witnessed the event. Can we prevent Ghanaians from reminiscing on events of 31st December 1981 if they choose to? Certainly no? (Per Archer CJ; as he then was).
On the issue of the said celebration contravening the spirit of the constitution Justice Archer dismisses it as a 'Kantian obfuscation' and preferred to rely on the letter and intention of the drafters of Constitution. On the same issue, Abban JSC (as then was) was of the view that if 31st December as a public holiday would remind Ghanaians of coups and therefore was inconsistent with the Constitution, the same can be said of Proclamations and Decrees of past military governments in article 11 (4) of the Constitution which constitute part of the existing law of Ghana. He concluded that:
If all these Decrees and Laws which are in a permanent form and are therefore constantly reminding us of coups and their consequences have been given a place of pride in the 1992 Constitution by its framers, because they did not consider them as being against the spirit and letter of the Constitution, how come that a day's celebration and a public holiday which also reminds Ghanaians of coups... should be regarded as being against the spirit and the letter of the Constitution and therefore unconstitutional?
As in the Kwakye case one can discern a division of their lordships' jurisprudential approaches between the natural law school and legal positivism. The majority opinion sees the spirit of Ghana's Constitution as rooted in some ultimate wider democratic values that are inconsistent with the events of 31st December 1981. On the other hand the minority opinion would not allow itself to be lured into the metaphysical search as it were, for a spirit of the Constitution they consider an 'obfuscation'. They would rather stay within the mundane letter of the Constitution. A position consistent with the jurisprudential thinking of dominant legal positivism.
These cases might well have turned on the particular human rights that were being asserted (political and civil) before the courts. Our view however is that new jurisprudential tools are required to address the issues of ESCRs. Tools that may initially be fraught with difficulty but have been used in other jurisdictions similar to that of Ghana. Such a jurisprudence must perforce see the right to be human as basic, fundamental and universal; in which every Ghanaian human person can truly see that irrespective of race, place of origin, political opinion, colour, religion, creed or gender ; they are entitled to such rights and freedoms (1992 Constitution, Article 12 (2)).
It is in these contexts the proviso in article 12 that human rights and freedoms in Ghana's Constitution are to be enjoyed subject to the respect for the rights of others and the public interests can then be meaningful to excluded groups of the Ghanaian society. Otherwise, as long as there is a skewed definition of the rights of others and public interests against vulnerable segments of society it becomes unjustifiable to ask them not to rock the boat. As rightly noted by Freire:
Men rarely admit their fear of freedom openly, however, tending rather to camouflage it- sometimes unconsciously- by presenting themselves as defenders of freedom. They give their doubts and misgivings an air of sobriety, as befitting custodians of freedom. But they confuse freedom with maintenance of the status quo ; so that if concientization threatens to place that status quo in question, it thereby seems to constitute a threat to freedom itself (Freire, 1974, p.16).
In the new human rights jurisprudence we advocate the official guardians of human rights and freedoms need to demonstrate that all Ghanaians enjoying these rights in practical terms do not frighten them as they proclaim them. It is trite learning that the radical advocates of change and innovation have resisted change in their own circles of influence. They prefer innovation away from home.
Another aspect of western liberal legal tradition identified by the Indian courts as an obstacle to oppressed people asserting their legal rights in the courts is locus standi. This is a procedural legal requirement that a victim of human rights violation should show his personal connection to the alleged violation. Within such a procedure the perpetrator continue to be free while the legal process re-victimise the victim with such onerous legal hurdles.
The legal reasoning behind such a procedure (in Ghanaian legal parlance) is said to be one that prevents an abuse of the legal process by persons considered as busybody intermeddlers . If such a category of persons is not a legal myth or a social construction by the law they might well be the repeat players of the litigation game. The paradox is that such players can hardly be identified by the legal process as not having legal standing. They more often than not have the material, social and legal resources to put themselves in standing however nebulous this might be. On the other side of the social spectrum are vulnerable and the excluded groups who would avoid the state judicial process like a plaque if they have a choice. Though one does not seek to idealise such segments of the Ghanaian society, it is unlikely that they would vexatiously or frivolously invoke an expensive legal process they neither have the time or resources to cope with. This is particularly the case in rural communities where majority of Ghanaians resides.
The human rights jurisdiction of the Ghanaian courts as provided in the 1992 Constitution states as follows:
a) Where a person alleges that a provision of this Constitution on fundamental human rights and freedoms has, or is being or likely to be contravened in relation to him, then without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
b) The High Court may, under clause (1) of this article, issue such directions or orders or writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental rights and freedoms to the protection of which the person concerned is entitled (1992 Constitution, Article 21 (3), emphasis added).
From the above formulation it cannot be said that the categories of the bearers of human rights in Ghana is settled and unambiguous. Does the term person as used in the article include group of persons, corporate or noncorporate? An illustration with a hypothetical case on its possible interpretation will clarify our point. Would a group of pastoralists who have over the years used grazing corridors for their livelihood have locus standi to assert the following?
a) That under articles 26 and 33 (5) of the 1992 Constitution their rights are violated by section 19 (1) of the Land Title Registration Law (PNDCL 152) for failing to recognise their material interest in such grazing corridors as a registrable interest in land. And that this affects their right to development and is inherent in their dignity to a livelihood?; and
b) That the Supreme Court should declare the relevant portion of the said legislation unconstitutional, as it is inconsistent with the said constitutional provisions on human rights and freedoms?
Though our illustration might seem extreme, similar assertions have been made in India and it will be useful to see how the Indian courts have handled them.
In State of Himachal Pradesh v. Umed Ram Sharma, certain villages in India complained about the lack of a proper road to their area. They argued that this did not only affect their livelihood but also their development. The Supreme Court of India held that the right to life in the Indian Constitution embraced not only the right to physical existence but also included the question of the quality of life. This case like others demonstrate the creativity with which the Indian Supreme Court handle issues of the inter-permeability between CPRs and ESCRs. The Ghanaian courts do not need such levels of judicial creativity in the light of the constitutional provisions on its human rights jurisdiction. A number of ESCRs are expressly stated in chapter 5 of the 1992 Constitution to be fundamental rights and freedoms that are enforceable in the High Court. In addition, there are many possible situations in which article 33 (5) of the Constitution can be invoked by the Ghanaian courts to incorporate the human rights principles stated in the Directive Principles of State Policy and other human rights treaties whether ratified by Ghana or not. The only test required for such an appropriation of other human rights norms not expressly stated in the 1992 Constitution is that they should be inherent in a democracy and intended to secure the freedom and dignity of man (Article 33 (5) of the 1992 Constitution).
Our argument is that the very basis for sustaining democracy depends on how democratic practices translate in the material conditions of the citizenry. As recognised rightly by the economic objectives of the Directive Principles of State Policy in the 1992 Constitution:
'the most secure democracy is the one that assures the basic necessities of life for its people as a fundamental duty' (Directive Principles of State Policy).
A similar phrase to inherent in a democracy in section 10 of the European Convention on Human Rights (necessary in democratic society) was held in Derbyshire County Council v. Times News Paper Ltd. & Others by Lord Keith to mean:
'the existence of a pressing social need' and that 'the domestic courts have a margin of appreciation based on local knowledge of the needs of the society to which they belong' (1993).
In the Ghanaian context no social needs are more pressing than those the ESCRs provisions in the 1992 Constitution seek to address.
An issue that still remains to be determined is whether the courts will consider social networks that are un-incorporated but significant to the daily lives of communities, as having locus standi to prosecute violations of their collective rights embodied in such networks? We are here prefiguring groups that do not have corporate status in the eyes of state law. Examples in Ghana include the asafo groups of most Akan communities and the proliferation of mutual support groups it is currently witnessing.
The CHRAJ legislation clarifies this jurisdictional issue in terms of the Commission's jurisdiction. The relevant section states that:
A complaint under this Act may be made by any individual or body of persons whether corporate or un-incorporated (Section 12 (5) of Act 456).
It is our suggestion that the traditional courts should define person in chapter 5 of the Constitution to include groups of persons that might not have a corporate status. This is particularly the case where traditional social, political and economic relations revolve around group activity very much like in India.
Another area we can share the experience of the Indian courts is how they have interpreted articles 32 and 226 of the Indian national Constitution that are similar to article 33 (2) of Ghana's 1992 Constitution. The salient features of such interpretation encompass the following:
a) The recognition of non-corporate group rights of persons;
b) That persons acting pro bono publica will have locus standi to institute action on behalf of such groups who suffer from social and economic depravity;
c) That a letter addressed by such a person to the court is an appropriate procedure within the meaning of the constitutional provision; and
d) That the traditional remedies of certiorari, prohibition, mandamus, damages or injunctions are inadequate to deal with such rights. And as such new and unconventional remedies are evolved to initiate affirmative action on the part of the state and its authorities.
On new remedies, two cases from the Indian courts illustrate the approach. In Bandua Mukti v. Union of India (1984), the court made an order giving various directives for: identifying, releasing and rehabilitating bonded labourers; ensuring minimum wage payments; observance of labour laws; and providing wholesome drinking water and setting dust-sucking machines in stone quarries. Also, in Sheela Barse v. Union of India (1988), the court directed that there should be separate lock-up for women staffed by women police constables and that notice should be put in each police lock-up informing arrested persons of their rights. It further ordered that a judicial officer should periodically inspect the lock-ups. There are also cases in which the courts have directed rehabilitation assistance to be provided in the presence and consultation of a specified social action group. This list is by no means exhaustive. The point we seek to make is that the door to possible remedies of human rights violations is neither limited to those expressly mentioned in constitutional provisions nor do they preclude innovations of new ones.
While our focus in this article has been on issues of human rights law, there are other issues arising from human rights actions and thought which have wider implications for the law. These wider issues are important for an appreciation of the manifestation of legal violence in human rights law in society; as the violence of law itself can be a threat to human rights and freedoms. The threat of the law itself to human rights arises from the social and economic power configuration embedded within state law. We understand power here to refer to both the exercise of public and private concentration of power. These considerations are often considered external to human rights and freedoms as a normative category. Yet they constitute the anvil from which we hammer out our human rights jurisprudence. Such issues are particularly pertinent if human rights discourse in Ghana is to be raised to a higher discursive terrain.
Important issues that need consideration are the implications of a liberalised economy for ESCRs. This is particularly a relevant issue for most third world countries that currently operate ERP/SAP programmes with a liberalised economy as a main feature. There is equally said to be a New World order that informs both national and the international political economy and premised on liberal economics. As observed by Julius Nyerere:
The Eastern Bloc has collapsed, the cold war has ended, the Soviet Union has disintegrated, there is unity amongst the four northern members of the Security Council, and Iraq has been crushed. I am tempted to add: the free market has become a religion, and money speculators have become the leaders of the world. So we have a New World Order (The Guardian, November 1992, emphasis added ).
This New World order is associated with a new (old) world thinking. The dominant view in such thinking is epitomised by the US State department analyst Francis Fukuyama on 'the end of the history and the era of the last man'. In this era we are invited to believe that history itself is at an end and that the fusion of liberal democracy and industrial capitalism now represents the only viable base for modern human society (Fukuyama, 1992, p.XXIII).
Such an apocalyptic view of history presented in such a celebrative tone has its adherents in developing countries as well. Its representatives in these countries are the 'experts' in democracy, good governance or the high-priests of the new market theology . What is disturbing about such views is that they foreclose debate on possible ways of understanding social processes; as no other possibilities or sensibilities are admitted in our reading of social reality. The usual explanation is that other social experiments (that were never allowed to be experimented) are considered to have failed humanity and that a liberal worldview is the only option for the future. However, we can argue with Santos that our present is an archaeological site that needs excavation. As he notes:
Its point is excavating only where nothing has been accomplished, and finding out why not, that is, why alternatives have stopped being alternatives. In this case excavation concerns itself with silences, silencing and unasked questions: suppressed traditions and subaltern experience, the perspectives of the victims, the margins... (De Sousa Santos, 1995 , p.481).
This New World Order (or disorder) and its associated worldview permeate human rights actions and thought at both the national and the international levels. In the former, we have the unasked question and silence on the issue; why some countries traverse other jurisdictions with impunity in their crusade against human rights violations while failing to address systemic violation of the rights of her citizens at home. We can add to this the requirement by some countries that financial aid to developing countries be tied to their human rights record. A record vulnerable groups have no way of shaping or influencing. Besides, there is a correlation between the type of economic and social policies dictated by such paragons of human rights (donor nations) and the violation of human rights by recipient states of financial credits. We can rightly ask the question whether the debt burden of most developing countries imposed by the imbalance world political economy is not a violation of the human rights of the citizens of these countries?
In the light of the above issues what implications, if any, does Ghana's political economy have for ESCRs? Ghana like most third world countries run an ERP/SAP that has been fined-tuned as Vision 2020. The latter is embodied in the recent National Medium-Term Development Plan to run from 1997 to 2000. Within the development strategy of this D-plan Ghana seeks to:
Pursuing the establishment of a system of government which ensures free enterprise within an environment of fair competition and promotes good governance, democracy and decentralisation and devolution of government through participation of individuals and communities in the political and administrative decision-making process...[and] pursuing an open and liberal economic policy that optimizes the rate of economic development for the country, ensures a good rate of profitability for the investor (both domestic and foreign) through improvement and constant review of the legal and administrative systems in other to make them transparent and investor-friendly (Republic of Ghana, 1997, p. 6).
It is not clear how such a development strategy fits the human rights provisions in the 1992 Constitution in terms of the ESCRs. What is obvious is that it has implications for such rights. The notion of what amounts to free enterprise and fair competition is problematic vis-à-vis the ESCRs of vulnerable groups of the Ghanaian society. Who sets the rules of the free enterprise game? And who decides the fairness of the competition in such an enterprise? Competition law in Ghana is not systematically developed; as it's rules are scattered in the company's code, investment legislation and other statutes. While competition law varies according to jurisdictions we understand it in the broader context of:
The myriad of government policies that impact competition at both the local and national level including trade liberalization (import competition) foreign investment regulation, protection of property rights (including intellectual property) and consumer protection (Rowatt, p.165).
It is certainly not clear what these rules are in Ghana if considered within the backdrop of government policy directives from time to time on the economy. Is it not also likely that the role of rule setting and rule adjudicating of fair competition are vested in representatives of the same social interest group both in the state and the private sector? What is the life chances for vulnerable groups in such a development strategy? Is there a necessary complementarity between an environment that is investor friendly and profitable and the realization of ESCRs? These questions need some in-depth study and cannot be considered within the space of this article.
We can for now observe that within the contexts of recovering, restructuring and adjusting the bearers of human rights in one Vision or another in Ghana, lies the vision of vulnerable groups right to be human and to remain human. At the same time we still have the contradiction between free enterprise, free competition, liberal economics, investor friendliness (profitability) and realisation of the rights of vulnerable segments of the Ghanaian society. While such questions might be considered as polluting the human rights provisions with the germs of politics, not to ask them or assume they do not arise is as polluting as to pose them. In our view, the seemingly accepted and taken-for-granted pontificating on rights knowing needs to be problematized and deconstructed. It is only within such a discursive emplacement that a sustainable dialogue can take the place of the historical monologue of human rights discourse in Ghana. One in which all are invited to see human rights in only its market friendly and trade related perspectives as a universal Truth.
Secondly, there arises the related issue of power in human rights discourse in Ghana. This issue has become important in the present times with the addition of the rather tired notions of empowerment and participation in human rights terminology. It now seems that to qualify as part of the community of human rights defenders these clichés is a sine qua non or leitmotif of human rights actions and thought. However, we need to know whether these terms mean the same thing for all social actors in the human rights market. The relevant questions we ask are; participation by whom and in what? What and whose agenda are bearers of human rights invited to participate in? The related notion of empowerment is particularly ambivalent and needs closer scrutiny.
To seek to empower a person assumes such a person has either no power or such power has been taken away at some point in time. It equally assumes that power is of a particular character but not a fluid and contested social site. A consideration of some theoretical conceptions of power will illustrate our point. To the Sociologist Talcott Parsons, power is a variable sum, which is not fixed in society. It resides in people of the society. Therefore the pursuit of collective goals would inure to the benefit of society as a whole (Parsons, 1960). To this view empowerment can be achieved within the existing social order as a benign system. However, if power is or become fixed (a zero sum game), Parson's view becomes problematic as increasing the power of the powerless implies decreasing the power of the powerful.
Another view is one often associated with Marx, Marxist and Marxian thinking. It suggests that political power is ultimately inseparable from economic power. As such political empowerment of the powerless that do not have economic power offer very limited possibilities for them. In a Gramscian rendition, the economically dominant class is hegemonic forces who set the agenda in society. Therefore, understanding and challenging such hegemonic notions is central to power articulations in society. Empowerment therefore for this view entails a sense of collective concientization to understand this reality critically and to challenge it through political struggle (see Gramsci, 1971).
What is discernible in a progressive reading of human rights discourse is that it constraints and problematizes power. This is because the exercise of power as either legitimate power or brute force is inherently violent and threatens human rights. John Stuart Mills captures the law as a legal form of violence as follows:
.... The only purpose for which power can be rightly exercised over any member of a civilized community against his will is to prevent harm to other. His own good either physical or moral is not a sufficient warrant. He cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because in the opinion of others to do so would be wise, or even right (quoted in Burroway, 1986, emphasis added).
Paradoxically it is the law itself that defines what amounts to harm; a definition that issues from the shadows of the dominant state ideology or that of private concentration of power. It is within such an ideology that law itself becomes the legitimate basis for the violation of some aspects of human rights. The stipulations of legal violence are part of human rights provisions in legal documents. In Ghana such stipulations run through the chapter on human rights and freedoms but its basic formulation is as follows:
Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this chapter but subject to respect for the rights and freedoms of others and for the public interest (1992 Constitution, Article 12 (2), emphasis added).
Beyond the difficulty of arriving at a societal consensus in defining the public interest there is the further difficulty of ascertaining before hand what acts amounts to respect or disrespect for the rights of others.
Would the avarice of private capital in the spirit of free enterprise and fair competition for profitability constitute disrespect for the rights of others? What if this is considered by a liberalised economy as investor-friendly? Who would be just that neutral arbiter to determine such contentions? As Ghana's Vision 2020 document suggests; fair competition, profit, private ownership of the means of production and an open and liberalised economy are considered national interest priorities. By implication such activities do not constitute disrespect for the rights of others. Indeed, if the economic policy objectives of the Directive Principles of State Policy are read together with articles 14 and 18 of the Constitution, they constitute personal liberty and protection of other property as long as they bear their fair share of social and national responsibilities. These responsibilities are premised on a contribution of their fair share to the overall development of the country (Ibid, articles 14, 18 and 36).
However as rightly argued:
... Liberty as freedom with which the state and the law shall not interfere with is everyone's human right, of the prince as well as the pauper. At the same time, in civil society, the very exercise of liberty creates for the domination by some over others. There is no assurance at all that human rights, as rights against the state, will not be employed so as to cause lawful harm to others. Indeed, heretical though it may seem. one way to formulate rights to liberty will be to say these rights consists in conferral of capacities in men to engage in causing lawful harm to others (Baxi, 1989a, p.160).
The above view has to be contextualized within the proliferation of what we have all along referred to as private concentration of power. In a liberalised economy with the private sector and market conditions taking a centre stage in the society, the threat to human rights is implicated. Just as the private sector is held to be the engine of growth and the cutting edge of the economy so is profit motive the lubricant that oil's the said engine.
Our view is that profit gives rise to economic power, which in turn converts into political and social power. Associated with such power transformation are the associated violence and its unaccountable nature. If state power is considered unaccountable, though it should be, private concentrations of power by its very nature is worse. The difficulties with which both national and international bodies attempt to regulate footloose transnational private companies bear testimony to this fact. To understand how private concentration of power becomes a threat to human rights needs a sociological understanding of the manifestation of the seemingly harmless notion of profit.
In Ghana's human rights experience, focus is often on the violence of state power to the neglect of the violence of private power. The state may indeed be the chief violator of human rights and freedoms but is that the entire story? Can we sincerely in Ghana draw an unproblematic line between the social forces that wield monopoly over state power and private concentration of power? Perhaps a useful lesson Ghana's human rights experience can learn is Foucualt's admonition that; real power is not entirely located in the state. As he observes, despite the omnipotence of the state apparatuses it is unable to occupy the whole field of actual power relations, as it is superstructural in relation to a whole series of power networks (Foucault, 1980, p.112).
Thus, human rights violation should not only be viewed in terms of big events and the activities of bigmen (to borrow Nugent's term). Enough lessons exists in Ghana to teach us that the violator of human rights today was the human rights defender of yesterday; the bigmen of today were yesterdays smallboys. The conclusion one can draw from such experience is that some human rights activists, upholders and defenders have the potential to violate the rights of others when entrusted with either public or private power over others. We only need to remember that the state official who violates the rights of others is not from any other planet than our very society. He/she was nurtured and primed in the very negative values others consider the indicators of modernity and sophistication. This is the context in which power is potentially threatening to human rights. It is for the same reason that power relations in society needs to be problematized in human rights discourse- not only public power but private concentration of power as well.
The story we have been seeking to tell in this article is a social drama involving victims, perpetrators and institutional actors on Ghana's human rights stage. That the interests of these social actors often conflict and could re-victimize the victims is a central issue. We have drawn on a number of desperate themes in human rights thought that will be cold comfort for the human rights legal purists. Some of our contentions and assertions may even be considered as bordering on the heretical, lacking analytical rigour or outright politically incorrect . However, the purpose of this article would have been served if it succeeds in conveying the message that there is an immeasurable distance between what we call human rights and the right to be human. A distance that we can begin to traverse if we develop the modesty to unlearn our traditional prejudices of what counts as human rights knowing.
Human rights have to be seen as part of a wider discourse that is highly imbricated in the contestation of various social forces for power and material survival. In such contests there cannot be neutral arbiters. A choice has to be made as to which side of the social divide one stands; whether that of the dominant social forces of society or the historically oppressed groups. We can add that such a choice is equally a human right. However whatever choice we make goes with the territory as we cannot approbate and reprobate. That is to say, we cannot proclaim the universality and inalienability of human rights and at the same time deny others the very basic human condition that makes human rights meaningful.
In this article we have demonstrated how the Indian judiciary has made such a choice over the years, which has yielded some payoffs in advancing the rights of vulnerable segments of the Indian society. However, such choices are not necessarily a panacea to all human rights evils. It is a choice that has its fair share of internal and external contradictions. Certainly, no easy victories or even difficult ones are expected in such choices but it is a positive and confident first step to which many more can follow.
We have been critical in our questioning of some social processes and their implications for human rights in Ghana. This should be considered as a friendly invitation for a wider dialogue on the nature of the human rights tasks ahead in our human rights frontier. If for Albert Einstein politics is harder than physics the politics for the promotion and realization of human rights is even harder. We can conclude with Baxi that it seems unfair to ask the judicial system and human rights activists to undertake extra-ordinary theoretical labours as they address issues of injustice, exploitation and the denial of human rights. But this is an unfairness imposed by history on all those who seek to innovate state and civil society relationship (Baxi, 1989b). The more readily it is grasped by all, that the human condition is a pertinent issue to human rights actions and thought the more relevant would be the human rights legal norms for all in Ghana.
7. Also see Fitzpatrick, 1993, pp.27-50 for a detailed account on the mythological sources of modern western law associated with the state of nature and law's state. Particularly the Grotian and Hobbesian Varieties.
Baxi, U (1996), 'The Unreason of Globalisation and the Reason of Human Rights', paper delivered at the First A R Desai Memorial Lectures. Department of Sociology, University of Bombay, February 7, 1996.
Baxi, U (1999) 'Voices of Suffering, Fragmented Universality, and the Future of Human Rights', in Weston, B H and Marks, S P (eds.) The Future of International Human Rights, Transnational Publishers, New York.
Bimpong-Buta, S Y (?) 'Role of the Supreme Court in the Interpretation and Enforcement of the Constitution', in The Law of Interpretation in Ghana: Exposition and Critique, Advanced Legal Publications, Accra: 365-381.