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Judicial Review and the Enforcement of Human Rights: the Red and Blue Lights of the Judiciary of Ghana

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Judicial Review and the Enforcement of Human Rights: the Red and Blue Lights of the Judiciary of Ghana JUDICIAL REVIEW AND THE ENFORCEMENT OF HUMAN RIGHTS: THE RED AND BLUE LIGHTS OF THE JUDICIARY OF GHANA By Peter Atudiwe Atupare A Thesis Submitted to the Faculty of Law In Conformity With the Requirements for the Degree of Master of Laws Queen’s University Kingston, Ontario, Canada. July, 2008 Copyright © Peter Atudiwe Atupare, 2008 ABSTRACT Constitutional democracy requires a constitutionalisation of Human Rights and the empowerment of judiciaries to enforce and protect such rights. In Ghana, these requirements have been put in place by the 1992 Constitution. Human Rights have been constitutionalised and the courts granted specific powers of Judicial Review to enforce the values of these rights by policing the actions of the legislature and the executive branches of Government. In response, the Judiciary has done a great deal through the power of Judicial Review to protect Human Rights in the country. It has developed a corpus of Human Rights jurisprudence which individuals and institutions can rely on for rights claims and protection. However, its role is not without blemish. This work seeks to discover the successes as well as the failures of the Judiciary of Ghana in enforcing Human Rights. As a theoretical prelude to the entire work, I claim that the main juridical basis to legitimate Judicial Review lies in the courts duty to enforce a higher body of law grounded in rights. On the basis of this claim, the work argues that while the Judiciary did play a constructive role in the promotion, enforcement and sustenance of Fundamental Human Rights and Freedoms in the country, it has not adopted a consistent approach in giving all Human Rights equal weight. A generous reception has been given to Civil and Political Rights, while Social-Economic Rights have not been sympathetically considered. This has generated a gap in Ghana’s Human Rights jurisprudence, and negated the values upheld by the postwar global Human Rights constituency - of which Ghana is a member. To avert the creation of Judicial determinism which will hold back the realisation of Socio-Economic Rights in Ghana, this work urges the Judiciary to accord equal respect to all Rights by adopting a purposive approach in deciding all rights claims. i ACKNOWLEDGEMENTS I would like to record my deepest appreciation to the Faculty of Law and the School of Graduate Studies and Research of Queen’s University for granting me the opportunity to undertake this research and for the generous financial support. Special thanks go to my supervisor Prof. Rosemary King for her untiring guidance. Her brilliant grasp of the aim and content of this work led her to insightful comments, queries and suggestions that helped me a great deal. Mama Rose, I am grateful for your invaluable assistance, friendship and acts of mentorship. I very much appreciate your infinite patience, care, time and sustained devotion to this work. I should express my gratitude to Faculty members for their instruction and numerous support, especially Professor Mark Walters, Professor Phil Goldman, Professor Stanley Corbett, Professor Nancy McCormack, Professor Arthur Cockfield, Professor Don Stuart and Professor Hoi Kong. To professors Mark Walters, Nancy McCormack and Stanley Corbett in particular, I am very grateful for being inspirational figures in my academic life while at Queen’s. Your ever willing nature to assist in all my frequent demands coupled with your most admired openness and friendliness delivered me from the stress of graduate studies in the Law Faculty. Thanks so much for this. To my colleagues in the LL.M Program, particularly Tarun Preet, Saptarshi Chakraborty, Babak Hendizadeh, and Jacques Menard, accept my profound gratitude for your great, stimulating company and support. I also thank Phyllis Reid, Allison Josselyn, Carol Johnson and ii Sharron Sluiter for their care and support. I am particularly indebted to Phyllis Reid for demonstrating sufficient interest in my wellbeing, and for supporting me throughout my stay in Kingston. I am most thankful to the entire Royal Family of Manyoro, for the prayers, well wishes and financial assistance. In spite of the suggestions, comments and support received and acknowledged, I take the sole responsibility for all errors or shortcomings that my thesis might contain. iii TABLE OF CONTENTS Page ABSTRACT.....................................................................................................................................i ACKNOWLEDGEMENTS ..........................................................................................................ii TABLE OF CONTENTS .............................................................................................................iv CHAPTER ONE ............................................................................................................................1 CHAPTER TWO: INDEPENDENCE OF THE JUDICIARY IN GHANA..............................6 Introduction.................................................................................................................................6 I. The Superior Courts: Structure, Composition and Jurisdiction .........................................7 II. Lower or Inferior Courts ....................................................................................................10 III. Judicial Independence: A General Postulation ..............................................................11 IV. Judicial Independence in Ghana: A Constitutional Offer...............................................25 Conclusion.................................................................................................................................31 CHAPTER THREE: HUMAN RIGHTS PROVISIONS IN THE GHANAIAN CONSTITUTION.............................................................................................................32 Introduction...............................................................................................................................32 I. Human Rights: A Contextual Position...............................................................................33 II. Human Rights Discourse in Ghana: An Historical Context.............................................36 III. Human Rights and the Constitution of Ghana, 1992 ......................................................40 a) Civil and Political Rights..................................................................................................41 b) Economic, Social and Cultural Rights.............................................................................49 c) Women and Children’s Rights .........................................................................................52 d) Rights of Disabled and Sick Persons ...............................................................................54 IV. The Operative International Human Rights Regime in Ghana......................................55 Conclusion.................................................................................................................................58 iv CHAPTER FOUR: LEGITIMACY, RIGHTS AND JUDICIAL REVIEW.............................59 Introduction...............................................................................................................................59 I. The Concept of Judicial Review...........................................................................................61 a) The Traditional Ultra Vires Notion of Judicial Review ..................................................63 b) Judicial Review in a Written Constitution Context .........................................................67 II. Legitimacy of Judicial Review Determined........................................................................72 III. Constitutional Foundation of Judicial Review in Ghana................................................79 a) Colonial Legal Institutional Setting.................................................................................79 b) Post-Independence Approach .........................................................................................80 Conclusion.................................................................................................................................83 CHAPTER FIVE: JUDICIAL ENFORCEMENT OF HUMAN RIGHTS IN GHANA.........84 Introduction...............................................................................................................................84 I. The Blue Light Province – Civil and Political Rights.........................................................86 a) Freedom of Speech and Expression................................................................................86 b) Freedom of Speech and Expression and the Ghanaian Courts.....................................92 c) Administrative Justice as a Fundamental Human Right ...............................................98 d) Freedom of Association.................................................................................................105 e) Freedom of Assembly and the Right to Demonstrate ...................................................112 f) Conclusion......................................................................................................................116 II. The Red Light Province - Socio-Economic Rights.........................................................117 a) The Courts of Ghana and Socio-Economic Rights ......................................................122 b) The Right to Education .................................................................................................123
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