New Year’s wish list

Greetings and happy new year to the esteemed readers of this column.

We thank you for standing with us and hope you stay the course for this year.

Many of you, no doubt, will have made inspiring new year’s resolutions. We hope you keep them but be wary not to beat yourself up or cry yourself to sleep if you deviate or falter as that would be counter-productive.

As we step into 2025 with excitement and hope, we deem it opportune to lay out the wishes of this column in the context of human rights and the criminal justice system.

At the top of our wish list, is the liberal teleological interpretation of human rights laws. Judges are the custodians of the law, inclusive of human rights law, so the enquiry justifiably has to begin with the Judiciary.

There can be no gainsaying the crucial role of judges in any human rights dispensation — they are the fulcrum of the system and the prevalence or otherwise of human rights-oriented decisions emanate from them.

It is, therefore, absolutely essential to have pro-human rights judges in the Judiciary, if the culture of respect and observance of human rights are to prevail in any democracy.

Whilst Ghanaian judges have performed considerably well in upholding human rights generally, a few cases in the immediate past year reveal some of the shortcomings within the system — namely the Democracy Hub protests and its aftermath.

The democratic credentials of our nation relative to the respect and observance of human rights laws came to a head with the handling of the protests.

Core human rights norms (freedom of expression, freedom of association, right not to be subjected to arbitrary arrest, rights of accused persons on arrest, right to counsel and fair trial) were unprecedentedly denied.

The police ran roughshod over most of these rights when arresting the protestors, but by far the most egregious violation of these rights, in my humble opinion, was the fact that most of these protesters were denied bail for offences which, by and large, were not serious.

This is where the role of judges in fostering a climate of respect and upholding human rights in Ghana became obvious.

This is where fidelity to the deployment of human rights norms was jettisoned without justification.

For a start, the protestors were exercising their constitutional rights of protest and freedom of assembly; they were not criminals who posed any significant threat to the peace and stability of the country.

As such, every effort should have been exploited, within the parameters of human rights law, to secure their liberty which is guaranteed by Article 14 of our Constitution.

Backdrop
It is against this backdrop that I, in the spirit of enhancing and promoting a holistic culture of human rights observance in public institutions, particularly at the courts, proffer these suggestions.

In adjudicating human rights issues, the Constitution should be the foremost source document.

Also, the jurisprudence of influential constitutional and human rights courts should be deployed.

We must endeavour to establish norms of international human rights law and treaties.

This suggestion is being made because, in my experience, many cases involving human rights law (like the right to liberty, right to fair trial provisions, including the right to trial in a reasonable time) are pronounced upon by judges without proper recourse to these sources and, if they are mentioned at all, they are disregarded without any or proper analysis.

This is very wrong, especially as it is trite that constitutional interpretation is ‘sui generis’ — ie in a class of its own — and, as such, should be interpreted generously and expansively to give meaning to these constitutional rights.

For example, in a typical bail application where the prosecution opposes bail for fear of the accused absconding or interfering with witnesses, there are perfectly legal practical bail conditions which can be imposed to offset the prosecution’s fears.

The judges can order the deposition of passports at the court registry, reporting at police stations, curfew orders, etc as conditions which will give meaning to the constitutional right to liberty.

In conclusion, I take inspiration from a quote of one of my human rights mentors, whilst practising in England — Frank Panford QC, the first Ghanaian QC — who once said “the success of our country is dependent not on how she treats the best citizens, but rather, how well she treats her worst citizens.”

The writer is a lawyer. E-mail: georgebshaw1@gmail.com