The recent unfortunate incidences of brutality being meted out to citizens (not spectators) of this dear nation of ours by some security forces raises the question of the extent to which the State is fulfilling its three-fold human rights duties to its citizens. These are the duties to respect, to protect and to fulfil.
The duty to respect encompasses the duty on the state to ensure that its officials, in this case, the soldiers, the police officers, staff of national security, refrain from doing anything that will impair the ability of the citizenry and indeed residents of the country to enjoy their rights; and to provide compensation for victims of such violations.
The duty to protect embodies the duty to prosecute, convict and punish the violators of rights (in this case, ordinary citizens and artificial legal persons like corporations) where the state is unable to prevent the rights from being violated; and to provide compensation for victims of such violations.
The third, the duty to fulfil, lies in the provision of social amenities and investment in economic, social and cultural facilities which will facilitate the ability of the citizens to enjoy their economic, social and cultural rights, among other rights. These include the right to education, the right to work and the right to health. This duty also extends to the State taking steps to positively facilitate or create an enabling environment for civil and political rights?
Where the State fails to undertake any of these duties to the satisfaction of the dictates of the Constitution and other relevant international law, it leads to breakdown of law and order, which constitute a violation of the concept of human security.
Human security is a new security paradigm which focuses on promoting state security, not through the traditional approach which pays undue attention to buying arms, equipping the security forces and spending money on other security gadgets to ensure that the state and the citizenry are safe. Human security rather focuses on meeting the needs of the disenfranchised and marginalised members of the society – both individuals and groups – and making sure they have a fair access to the national cake. It is also about giving them agency to enjoy and exercise their right to political participation and decision-making on matters that affect their lives; as well as the ability to access justice where their rights are violated. It is expected that fulfilling this obligation to the less privileged has the ultimate objective of controlling pent-up resentments from boiling over into violence, instability and conflict and thereby promote peace and security in the end.
Unfortunately, however, most often, African States have remained steeped in the traditional state-centric approach. The fixation on this model results in the imagination of existential threats to the state and the need to deal drastically with all those that dare to do anything that will compromise the peace and security of the State. A good example is the attitude of national security in meting out brutalities on a Citi TV/FM journalist for taking pictures of its premises.
This approach has also informed, in recent times, the Ayawaso incident, the Techiman incident, the Ejura incident and the Wa incident, to mention a few. The security forces implicated in these unfortunate acts, knowing and thinking that they have the backing of the executive, feel unrestrained to go on a frolic of their own to inflict mayhem on society.
When these violations take place, the State is expected to take immediate steps to deal with the breaches or be deemed to have ordered those atrocities to be committed and should, therefore, be held directly responsible. Indeed, the recent happenings clearly establish that the State is complicit in the acts of the security forces due to the casual, lackadaisical attitude it has adopted in most cases in dealing decisively and firmly with the infractions committed in its name.
One solution available to victims is to report such incidents to the police. However, the police are incapacitated from taking up such matters for various reasons. The police itself may be the culprits and the internal accountability mechanisms put in place by law to ensure that justice is serviced for the victims do not work. Second, the police, because it is beholden to the executive and the Inspector-General of Police is appointed by the President who can exercise his powers to appoint retired COPs as IGPs or to extend their time in office, are unable to institute the necessary actions against the powers that be.
The other option is to go to court to pursue a civil claim or present a case before the human rights court to seek redress. However, hardly are these options explored for reasons that touch on the poor quality of access to justice in the country – the court processes are reactive, adversarial and expensive.
Yet, completely taken out of the picture is the place of the Commission on Human Rights and Administrative Justice (CHRAJ), a prominent constitutional body which was set up to improve access to justice in the country to redress human rights violations, administrative injustices by state officials and corruption-related matters.
CHRAJ’s approach is supposed to be informal, flexible, inexpensive and more easily accessible to the marginalised and disenfranchised in the society. According to the law establishing it, CHRAJ is to have a presence in each district of the country, in addition to regional offices and the national headquarters. Its mechanisms include the use of alternative dispute processes. Informally, CHRAJ can receive oral submissions through a case officer or through simple letter writing.
CHRAJ is also expected to be proactive. That is, to initiate cases suo motu, based on information picked from newspapers, radio, television or other reliable sources. that is on behalf of victims and not wait to receive formal complaints first. This mechanism was successfully used in a number of time by CHRAJ until the Dr. Richard Anane case, which ended up before the Supreme Court. The apex court ruled that CHRAJ will need to receive official complaints from an identifiable person before it can initiate proceedings against alleged violators of administrative justice, human rights and corrupt practices.
This decision is regrettable and seems to have sounded the death knell for the activist-oriented approach CHRAJ had adopted in promoting human rights, administrative justice and fighting corruption in the country. For in taking away that proactive sting, CHRAJ was reduced to something similar to a private litigation, instead of an alternative, forum to address human rights violations. This was a move away from CHRAJ’s predecessor, the Ombudsman’s office, which had the mandate to initiate cases on its own as well through formal complaints.
Yet, CHRAJ cannot totally be excused for its abysmal decline into lethargy. CHRAJ is now a pale shadow of itself. There is a new generation of Ghanaians born under the fourth republic who may not know about CHRAJ, let alone what is does. The NCCE has in some respects been more active in doing the promotional functions of CHRAJ.
It is no gainsaying the fact that the decision to demobilise CHRAJ from initiating cases on its own is a retrogressive step in the arsenal of CHRAJ to perform its functions. Yet, CHRAJ still has a lot of power under the Constitution and its enabling CHRAJ Act to perform more creditably than it is doing now. One of its functions is the promotion of human rights, which includes human rights education. Through this means, it could issue a response to each alleged human rights violation reported in the newspapers, through social media, etc, condemn the practice and use that avenue to invite victims or whistle-blowers to report incidents to it for redress. CHRAJ is also expected to issue annual reports to Parliament yet one wonders when was the last time such a report was submitted to Parliament and what Parliament has done to ensure that this mandate is respected.
Ultimately, the provision in the 1992 Constitution outlining the mandate of and the CHRAJ Act will need to be amended to enable it to resume its proactive mandate, similar to what one finds in the case of Uganda. In this African country, article 52 of its Constitution clearly provides that the Human Rights Commission can investigate, “at its own initiative or on a complaint made by any person or group of persons against the violation of any human right.” While we wait for that day when the Constitution could be amended to give back CHRAJ this power, or when the opportunity may come for the Supreme Court to depart from its previous decision, CHRAJ should utilise the other powers clearly invested in it by the Constitution to impose itself as the friend of the marginalised and disenfranchised in promoting and protecting their rights; and holding the security officials linked to such infractions accountable.
Professor Kwadwo Appiagyei-Atua
School of Law, Univ of Ghana, Legon