Abstract:
The Courts in Ghana, like their counterparts in other countries, require that litigants who intend to transact businesses before them, pass the legal test of standing or have satisfied the Courts that they possess the requisite capacity to institute the action. This means that the jurisdiction of a Court is not merely invoked by the compelling merits of a case; but whether one has the requisite capacity or sufficient legal interest to prosecute the action. A litigant must demonstrate sufficient interest in the case before the courts consider the remedies sought. Sufficient interest may be personal or for public good. In instances where the substance of the litigant’s case relates to the enforcement of socio-economic and cultural rights, issues of justiciability of these unique rights would have to be determined by the Court before considering the case of the litigant.
Against this background, this paper critically examines the Supreme Court's decision in the landmark case of Child Rights International v. The Attorney-General in Ghana, drawing out essential lessons for the enforcement of economic, social and cultural rights (ESCRs) in the country. While acknowledging the legitimate claim of Child Rights International, the paper contends that the approach taken in prosecuting the action may have led to the Court’s dismissal of the case. It argues that while ESCRs are actionable rights, their enforceability by the courts hinges significantly on the strategies and approaches adopted by litigants.
By analyzing the intricacies of this case, the paper aims to shed light on the pathways to effectively navigate the legal landscape concerning ESCRs enforcement in Ghana. It underscores the importance of strategic litigation and the need for litigants to meticulously consider the justiciability aspects of ESCRs when seeking legal remedies. Ultimately, the paper advocates for a nuanced understanding of the legal framework surrounding ESCRs enforcement, emphasizing the role of litigants in shaping the trajectory of socio-economic and cultural rights protection in Ghana.
Background
The influx of children living on the streets of Ghana and in particular its capital city, Accra caused Child Rights International, one of the notable Civil Society Organisations (CSOs) that pursues the welfare of children in Ghana, to mount an action before the apex Court. In their view, the over sixty-one thousand children living on the streets of Ghana violate key provisions of the constitution including the right to life, dignity, and the rights of children enshrined in the constitution of Ghana. They maintained that these children are deprived of the requisite socio-economic rights to good healthcare, hygienic food, potable water, and education. The CSO’s claim, to essentially compel the government to protect the rights of these vulnerable children, was met with a technical response from the Office of the Attorney-General that they had no real issues justifying the invocation of the Supreme Court’s jurisdiction since the provisions they relied on were clear and required no interpretation. Thus, before the court were matters about the CSO’s capacity to institute the action, the justiciability of the Directive Principles of State Policy captured under chapter 6 of the 1992 constitution, and the role of the Supreme Court in enforcing economic, social, and cultural rights. This paper, as noted in the abstract, explores the rights known as the Economic, Social, and Cultural (ESCRs) and assesses the justiciability and enforcement of these rights within the Ghanaian context with a critical assessment of the case of Child Rights International v The Attorney-General.[1]
The paper is carved up and dissected into six parts. The first part addresses the background to the action by Child Rights International in the Supreme Court. The second part delves into the origin and significance of ESCRs in the international community and their incorporation into Ghana’s constitution. The third part of the paper considers the justiciability and enforceability of ESCRs, while the fourth part explores the enforcement jurisdiction of the Supreme Court and the High Court in respect of ESCRs. The fifth part of the paper examines prior attempts that had been made in previous cases to enforce ESCRs rights and the attitude of the Supreme Court in the enforcement of those rights. The essay concludes with the sixth part by noting that Ghana has made significant strides in terms of the enforcement of ESCRs, however, the enforcement of those rights by the Court requires strategic approach by litigants.
Economic Social and Cultural (ESCRs) Rights
Economic, Social and Cultural (ESCRs) rights are second and third-generational rights that attained international notoriety in the 20th Century.[2] These rights include the rights to adequate food, adequate housing, education, health, and social security as well as to take part in cultural life, the right to water and sanitation, and to work.[3] Many international declarations, conventions, and municipal laws recognize ESCRs. The Universal Declaration of Human Rights[4], the International Covenant on Economic, Social, and Cultural Rights (ICESCRs),[5] and the African Charter on Human and Peoples’ Rights[6] all acknowledge the existence and the need for the protection of ESCRs. These international and regional instruments are important as they exert significant influence on national constitutions. Under the 1992 Constitution of Ghana, ESCRs are provided for under Chapters 5 and 6 of the 1992 Constitution.[7] Like Ghana, the South African Bill of Rights contains several socio-economic rights, including rights dealing with labour relations; environment; property; access to adequate housing; access to healthcare, sufficient food and water; social security; and basic and ongoing education.[8] The Namibian Bill of Rights confines itself to rights relating to children, education, and property choosing to handle socio-economic rights as policy objectives under Principles of State Policy.[9] The Ugandan Bill of Rights protects the deprivation of property, the rights to education, work participation in trade union activity, and a clean and healthy environment.[10]
In the Child Right International case[11] under study, the CSO sought the Supreme Court’s intervention in realizing the ESCRS of the homeless children to good healthcare, hygienic food, potable water, protection from harm, and access to education. The CSO also cited to the Court the social objectives of Ghana captured under Article 37 of the 1992 constitution and Article 35(4) that place a duty on the state to cultivate among all Ghanaians, respect for fundamental human rights and freedoms and the dignity of the human person. These provisions are both part of the directive principles of state policy captured under Chapter 6 of the 1992 Constitution of Ghana.
Justiciability of Economic Social and Cultural (ESCRs) Rights
Chapter 6 of the 1992 Constitution embody a comprehensive economic social and cultural rights for an ideal democratic state. These rights represent the goals and aspirations of the Ghanaian people. They constitute a sort of barometer for measuring government performance, and goals for legislative policy. The principle is that these rights do not in themselves present issues of justiciability.[12] An issue is justiciable if it is capable of being settled by the courts.[13] It is easier to consider ESCRs as justiciable where they are captured in the justiciable portions of the constitution. Conversely, the absence of ESCRs in the constitution creates a situation where the courts may take a very narrow view of the state’s responsibility, preferring civil and political rights over ESCRs.[14] Under the 1992 Constitution of Ghana, the presence of some ESCRs is directive, raising questions as to their justiciability and consequently, may not be judicially enforceable.[15] Concerns regarding the justiciability of directive principles of state policy which embodies some ESCRs have been settled by the Supreme Court in the Lotto case[16] where the court adjudged a presumption of justiciability in respect of the directive principles of state policy. This is a major departure from the position taken by the court in the earlier cases of New Patriotic Party v Attorney-General (CIBA)[17] which adjudged the directive principles of state policy as not in and of themselves justiciable unless they are read together with a justiciable provision, and the majority opinion in the case of New Patriotic Party v Attorney-General (31st December case)[18] adjudging the entire provisions of the constitution including the directives in Chapter 6 as justiciable.
Faced with this hurdle, the CSO in the Child Right International case considered the matter of justiciability of its reliance on Chapter 6 provisions to make its case as an automatic presumption operating in its favour, and imposing instead, a burden on the opposing party, in this case, the Attorney-General, to rebut the presumption. The Attorney-General, however, contended that the provisions relied on by the Plaintiff were not justiciable and that the Plaintiff had wrongfully invoked the Supreme Court’s jurisdiction. The Supreme Court, agreeing with the contention of the Attorney-General, noted that although the directive principles of state policy have been held to be presumptively justiciable, the Plaintiff had a duty to demonstrate that the applicable provisions they relied upon in their case fall into the category of the “justiciable”. The Supreme Court opined that the CSO failed to do so.
Accordingly, this paper argues in favour of the position taken by the Supreme Court that to the extent that the directive principles of state policy are presumptively justiciable, they may conveniently be categorised as rebuttable presumptions. Accordingly, it is imperative that for the presumption to operate, the basic facts necessary for that presumption to operate must first be established. This duty of establishing the basic facts is on the person alleging the existence of the presumption. Indeed, rebuttable presumptions are governed by law. The Evidence Act 1975 (NRCD 323) regulates the application of rebuttable presumptions in an action where proof by a preponderance of the probabilities is required. Thus, Section 21 NRCD 323 provides among others that:
(b) when evidence is not introduced contrary to the existence of the presumed fact, the question of the existence of the presumed fact depends upon the existence of the basic facts that give rise to the presumption and is determined as follows:
- if reasonable minds would necessarily agree that the evidence renders the existence of the basic facts more probable than not, the Court shall find, or direct the jury to find, in favour of the existence of the presumed fact; or
- if reasonable minds would necessarily agree that the evidence does not render the existence of the basic facts more probable than not, the Court shall find, or direct the jury to find, against the existence of the presumed fact; (Emphasis supplied)
To that end, it is argued that the mere citing of a provision in Chapter 6 does not, in and of itself, kick in the operation of the presumption of justiciability in favour of the party who seeks to rely on the said provision. To succeed, the party seeking to rely on the justiciability of a Chapter 6 provision must establish the existence of the basic facts that give rise to the presumption. What is unclear, however, is what constitutes the basic facts that a party seeking to get the presumption to operate in his favour has to prove. The Supreme Court in the Child Rights International case provides no clear guidance to that effect. It is our considered opinion that, the difficulty with coming up with grounds for proving the basic facts, to make the provisions in Chapter 6 justiciable, is what may have necessitated the court in the Lotto case to always presume the provisions to be justiciable unless same can be rebutted either by the clear wording of the provision or some other fact that the court may allow.
Be that as it may, it is hereby submitted that there are clearly some provisions in Chapter 6 such as those relied on by the CSO in the child rights case, that do not lend themselves to any conceivable justiciability. In such a case, it may be advisable for a person who seeks a favourable outcome from the Supreme Court to, at least, demonstrate the extent of the basic facts which that person relies on, and more importantly, provide guidance to the Court as to the trajectory that ought to be taken in the enforcement of such a right.
Capacity to Institute an Action for the Enforcement of ESCRs in the Supreme Court and High Court of Ghana
Article 2 of the 1992 Constitution of Ghana provides that; “(1) A person who alleges that - (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”[19] Article 2 of the 1979 Constitution[20] is couched in similar words as that of the 1992 Constitution only adding the phrase “at any time” to when a person may bring an action in the Supreme Court. The 1969 constitution,[21] however, does not provide for one’s alleging that “any act or omission of any person” be brought as an action in the Supreme Court for a declaration consequently, limiting the scope of actions under it to only the striking down of inconsistent legislation. Akuffo, J.S.C in the case of Joseph Sam v Attorney-General[22] justified the scope and intent of article 2 as stipulated in the 1992 Constitution by referring to the relevant portions of the Report on Proposals for a Draft Constitution of Ghana[23], where the Committee of Experts, the framers of the 1992 Constitution, in dealing with the enforcement role of the Supreme Court stated, at paragraph 356 that: —“…Against the need to limit litigation, it was pointed out that there was a major public interest in assuring the widest possible access to the courts for purposes of constitutional litigation, and that the prospect of enforcing the Constitution should not be curtailed by the want of specific interest or legal standing in the strict sense.” Yet, the Committee restricted the right to institute such proceedings to only citizens of Ghana.[24] It is, therefore, the role of every Ghanaian to enforce the Constitution. Despite the conferring of broad standing, in the New Patriotic Party v Attorney-General (CIBA)[25] case, one of the Judges[26] in a dissenting opinion refused to grant standing to the plaintiff, a political party, acting in the public interest to contest a law appearing to be inconsistent with the Constitution. The learned Judge reasoned that the rights asserted by the plaintiff were personal to the persons affected by the impugned law and as such the plaintiff lacked locus standi to maintain the action to enforce the constitutional rights of third parties who were not in court, and without their consent.[27] The Judge proposed a narrower way to grant standing under Article 2 based on the sufficiency of the plaintiff's interest in the subject matter of the action he initiates. He contended as follows; “Neither the fact that it can be urged that it is in the public interest to have promptly decided whether a law is unconstitutional or not can justify (the Court’s) assumption of jurisdiction in the enforcement of the fundamental human rights, nor can an argument that the constitutional rights of a person is in jeopardy justify such an assumption of jurisdiction by (the Court) in violation of a constitutional prohibition.” It must be emphasised, however, that the prevailing view is that which entitles any citizen, natural or legal to bring an action in the Supreme Court for a remedy when an enactment or conduct is in breach of the Constitution, and as will be demonstrated subsequently, actions brought under article 2 have been used to enforce ESCRs in Ghana.
Against this backdrop, the parameters for the invocation of the Supreme Court’s jurisdiction under Article 2 of the Constitution, according to the plethora of authorities, may be enumerated below:
- The plaintiff must be a citizen of Ghana whether natural or juristic.
- The plaintiff must demonstrate that an enactment has been passed which exceeds the powers of parliament or otherwise contravenes the letter and spirit of the 1992 Constitution and thus should be declared void. It must be emphasized that the plaintiff has a burden to point to a specific provision in the constitution that has been violated.[28]
- The plaintiff could also demonstrate a particular act, practice, or omission which contravenes the Constitution and thus necessitates an intervention by the Supreme Court. It must be noted that here, the act, practice or omission complained of must have taken place. In essence, a mere intention to do such an act would not suffice. Again, where the act in question is merely a violation of an Act of Parliament and not the Constitution, the action will not be properly placed in the Supreme Court.[29]
- It is not necessary for the plaintiff to demonstrate that he has a personal interest in the case. Once the matter is one that falls within the three grounds above, the Court will assume jurisdiction.
- Estoppel is not a defence to an action brought under Article 2 of the Constitution. In other words, the mere fact that the act has been taking place for a long time is not sufficient justification to an action brought under Article 2.
In terms of the High Court’s jurisdiction to enforce the Constitution, it is now settled that the High Court has exclusive jurisdiction, as a court of first instance, to enforce fundamental human rights guaranteed under the Constitution.[30] The Supreme Court does not have concurrent original jurisdiction with the High Court in the enforcement of fundamental human rights provisions under the Constitution. The Supreme Court may, however, entertain suits bordering on fundamental human rights where the claim of the plaintiff is in the public interest, or seeks a declaratory relief to prevent continuing violations, and the plaintiff does not have any personal interest in the matter.[31]
Further, in respect of the High Court’s jurisdiction to enforce human rights, the plaintiff must demonstrate that there is a controversy about the violation or threatened violation of his rights. Also, the plaintiff must demonstrate that the said rights relate to his persona and none other. However, it will be demonstrated that in certain cases, the High Court entertains actions in the public interest to compel statutory bodies to perform their duties.[32] Again, where the plaintiff inordinately delays in prosecuting the action, same may be met with the defence of estoppel and the statute of limitations under the Limitations Act, 1972 (NRCD 54).
Now, the CSO, Child Right International, at the time of instituting the said action was a citizen of Ghana(having been registered as a corporate body) and a person within the meaning of Article 2 and the cases of Joseph Sam and CIBA cited supra However, in a concurring opinion in the Child Rights International case, the learned Justice, Pwamang JSC, suggested that actions for the enforcement of ESCRs in this matter ought to have been brought against the relevant institutions that have been assigned the responsibility of ensuring the welfare of the children. The Judge prescribes the High Court as the proper forum and not the Supreme Court for such actions and appropriate remedy as is seen in the Bonte Mines[33] case to be discussed subsequently. As to the propriety of the Attorney-General as a defendant in the suit, the Judge maintained that the Attorney-General is not the proper party to be sued in matters concerning breach of statutory duties. The relevant statutory bodies ought to be the proper defendants.
Indeed, it is submitted that the action by Child Rights International, although legitimate, was misconceived in respect of the manner the action was couched. The CSO failed to cite specific acts of government that had contravened any specific provision of the constitution. They also failed to point out that there was any enactment violating any specific provision of the constitution. A careful perusal of the claim of the CSO was that the fact that children are left to wander on the street violate the constitution. However, the provisions the CSO relied on, posed a significant challenge to its action.
It would be revealed that what the CSO complained about, was the mandate of the District Assemblies and the Department of Social Welfare established under Children’s Act, 1998 (Act 560) as clearly stated in section 16, 17,18, & 19 of Act 560. The said Act provides a procedure that one must follow in seeking to enforce the rights of children. Accordingly, it is submitted that the action of the CSO failed because:
Firstly, their claim, in essence, was alleging a statutory infraction by the bodies empowered to perform that duty, and not a provision of the Constitution. Now, it has been established that where a person is alleging a statutory infraction, the proper forum is not the Supreme Court, since, as demonstrated, Article 2(1) is very explicit in language to the effect that it is only where an act contravenes the Constitution that a person may invoke its jurisdiction therein. This has been advanced in a plethora of cases by the Supreme Court such as Daasebre Asare Bah III v. Attorney-General[34]; Centre for Juvenile Delinquency v. Attorney-General & Anor[35]; Derick Adu Gyamfi v. Attorney-General.[36]
Secondly, it is evident that Act 560 provided the procedure by which a person alleging a violation of the right of a child ought to follow to ventilate his grievance. It must be noted that Act 560 is a special statute and therefore, by the application of the generalia specialibus non derogant principle, which has been extolled as an aid to interpretation of statutes[37], the CSO failed to follow the proper procedure when they ignored the mechanism provided under Act 560, but rather invoked the Supreme Court’s jurisdiction. This is because, the law is settled that where an enactment provides a right or remedy and provides the procedure by which something was to be done, it is only that procedure that must be followed.[38] In any event, granted that the CSO had complied with the procedure under Act 560 but was met with a refusal, the appropriate forum was not the Supreme Court, rather, they could have invoked the supervisory jurisdiction of the High Court under Article 141 for an order of mandamus to compel the enforcement of same.
Prior Attempts Made at Enforcing ESCRs in Ghana
This section of the paper examines, critically, prior attempts that had been made to enforce ESCRS rights and the posture of the Courts to those actions.
The Adjei Ampofo Case on Working Conditions
Background
In Adjei Ampofo v Accra Metropolitan Assembly and Another[39] a lawyer, Nana Adjei Ampofo had observed that people were employed to remove or carry on their heads, pans of human faeces from residents in various parts of Accra. He noticed that these people agreed to do so primarily because of poverty yet he hoped the practice be abolished as it was an affront to the dignity of these persons. The Accra Metropolitan Assembly (AMA) was the agency responsible for engaging these persons in that kind of work. For several years, Nana Adjei Ampofo sought to draw the attention of governments to the unfairness in the practice to no avail.
The Launch of Court Proceedings
In 2005, Nana Adjei Ampofo instituted an action against the Accra Metropolitan Assembly (AMA), averring that the agency was violating the rights of some Ghanaians by engaging them to carry human excreta in pans on their heads. He argued that the practice was an affront to the dignity of such persons and Ghanaians as a whole. He added that the act was inhumane and unconstitutional offending articles 15(1) and 2 of the Constitution of Ghana, 1992.
The Supreme Court Hearing
The plaintiff sued in his capacity as a Ghanaian citizen under Article 2 of the Constitution, 1992 seeking a declaration that the act was an affront to Article 15(1) and detracts from the dignity of such persons and an order for the abolition of the said act. However, the AMA raised preliminary objections to the plaintiff’s action on grounds that the plaintiff had no locus standi in the matter because he lacked interest. They further alleged that the Court lacked jurisdiction in entertaining the action since it had to do with the enforcement of fundamental human rights which have been vested exclusively in the High Court. Unanimously, the Court dismissed the preliminary objection, reasoning that the objective of Article 2 was to encourage Ghanaians to enforce all parts of the Constitution and that the High Court’s jurisdiction in enforcing fundamental human rights was limited to actions in relation to persons whose rights have been infringed upon. The Court further held that article 33(1)[40] did not operate to fetter the civic-minded citizen who has embarked on a mission to enforce the Constitution in the general interest of the public and to enforce the fundamental human rights of others.
Orders of the Supreme Court
The Court in upholding the plaintiff’s case made specific orders that exemplified the role of the Courts in enforcing socio-economic rights. The Court’s orders stemmed from a consent judgment that had been agreed to by the parties. The orders were to the effect that the Accra Metropolitan Assembly,
- Phase out the use of pan latrines in the Accra Metropolitan Area within 5 years maximum from 8 July 2005
- Give enough publicity to citizens in Accra Metropolis as to the discontinuance of the use of pan latrines.
- By all means possible, facilitate the conversion of all existing pan latrines into Kumasi Ventilated Improved Pits (KVIP) or water closets.
- Construct 1,500 KVIP or water closet public toilet facilities by 2010.
- After 2010, enforce the prohibition and prosecute those who fail to comply or engage any other person to carry human waste in a pan and,
- To not grant new building or development permits to building plans that do not make adequate provision for water closets or KVIP or other approved facilities forthwith.[41]
The CEPIL Case on the Environment[42]
Lessons
This actionwas instituted essentially to uphold the dignity of the persons taking part in carrying out the impugned act and an order directed at the Accra Metropolitan Assembly to abolish the said act took an interesting turn. The Court’s order went beyond what the plaintiff sought, as specific orders were made to uphold the ESCRs of the persons to a better working condition. What must, however, be noted from the case is that the Plaintiff’s action was grounded in Article 15 of the Constitution which falls squarely within the fundamental human rights guaranteed under Chapter 5 of the Constitution, unlike Child Rights International who were unable to point to a specific provision that been contravened. The Plaintiff also demonstrated how the actions of AMA had contravened the constitution. It is also noteworthy that the Plaintiff sued the body that was directly responsible, that’s AMA and added the Attorney-General to the suit unlike, Child Rights International. Accordingly, it is important for one invoking the Supreme Court’s jurisdiction to enforce rights of this nature to adopt the proper procedure to avoid being thrown out on technical grounds when the case is otherwise legitimate.
Background
A second case worthy of examination is that of the Centre for Public Interest Law (CEPIL) against Bonte Gold Mines Ltd, a mineral prospecting company that had extensively degraded the environment while it conducted work in the Ashanti Region of Ghana. CEPIL, a public interest litigant specifically pertaining to the matters concerning the environment, was alerted by this situation and on its own sought to salvage the situation. The Ministry responsible for the Environment had indicated that Bonte Gold Mines Ltd. defaulted on its duty for reclamation works to be done leading to a degradation of the land and posing health risks well. Meanwhile, Bonte Gold Mines Ltd. had gone into liquidation and paid only a meagre sum of what it cost to remedy the damage caused to the land.
The Launch of Court Proceedings
Against this backdrop, CEPIL sought the intervention of the Accra High Court by instituting an action against the Environmental Protection Agency (EPA) and the Minerals Commission as first and second defendants for failing on their statutory duty to ensure that Bonte Gold Mines Ltd. carried out its activities in an environmentally friendly manner or rehabilitate the damaged environment. Bonte Gold Mines Ltd was added as the third defendant.
The High Court Hearing
The plaintiffs’ capacity to institute an action was questioned by all three defendants. The plaintiffs had described themselves as registered companies under the laws of Ghana and as specialists in environmental and human rights protection. The Court rejected the defendant’s objection reasoning that, the Court jealously guarded suits pursued in the public interest and will rarely assist in attempts to exclude such cases based on lack of capacity.[43] It added that “public interest” under Article 295[44] and the right to a safe environment recognized by Article 36(9)[45] imposes a duty on the state to take appropriate measures to protect and safeguard the national environment. Consequently, the plaintiffs were granted standing since the right to a safe environment and the duties imposed statutorily on the defendants are for the benefit of all Ghanaians. The Court opined that it is the right of every Ghanaian including the plaintiffs to ensure due compliance with the duties imposed on bodies duly appointed to protect the environment is, therefore, a right duly recognised at law as enabling the plaintiff to maintain the action.
The High Court Judgement
The Court in delivering its verdict on the 27th of March 2009 declared inter alia that:
- Bonte Gold Mines Ltd. was in breach of its statutory obligations to minimize the degradation of the environment and to rehabilitate the affected areas upon termination of its activities in Ghana.
- EPA and the Minerals Commission were under a mandatory statutory obligation to monitor and control the activities of the Bonte Gold Mines Ltd. to ensure that, their mineral activities are carried on without breaching their statutory obligations.
The Abass Case on the Right to Housing
Consequently, all three defendants were held liable for the damage caused to the environment.
Lessons
This action was instituted essentially to insist on the preservation of the environment. This is the mode prescribed by Pwamang JSC in the Child Rights International case discussed earlier. This action was not brought under Article 2 to be heard in the Supreme Court. It was instituted in the High Court under Article 33(1).[46] This is notable because it indicates an instance where the High Court allowed for public interest actions to be brought before it where it involved a breach of a public right or statutory duty, and the plaintiff is among persons who can institute an action to remedy it yet not necessarily affected.
Background
The final case to be explored is that of Abass v. Accra Metropolitan Assembly.[47] This case took a different turn although it was inspired by the success in the Grootboom case of South Africa.[48] The government of Ghana through its agency, the Accra Metropolitan Assembly, initiated the Korle Lagoon Ecological Restoration Project in the 1990’s. This project was initiated to remedy the flooding situation that occurs during the rainy season in key areas of Accra. The squatters at Agbogbloshie were among persons whose place of residence and business activities were to be vacated. To achieve this, the squatters had to be evicted. There was no legal duty to resettle them because the squatters were without any form of title to the land. A two-week eviction notice was served on them by the Accra Metropolitan Assembly with the threat of forced eviction.
The Launch of Court Proceedings
The squatters instituted an action in the Accra High Court against their eviction. They sought an injunction insisting that they be resettled arguing that an eviction without resettlement would violate their constitutional rights.
The High Court Hearing
The plaintiffs relied on several articles including 12(1),[49] 23,[50] the provisions guaranteeing the rights to life,[51] human dignity[52] and equal educational opportunities[53] all in a bid to secure the enforcement of their human rights. Also, unenumerated rights to housing, work and shelter as well as the Grootboom[54] case, were invoked in support of their argument.
The High Court Judgement
The Accra High Court rejected the argument of the plaintiffs and held that, in the absence a binding contract between the parties, no duty of resettlement is owed to the plaintiffs by the defendant. It reasoned that squatters and trespassers like the plaintiffs were not in a position to assert their constitutional rights against the owner of the land they occupied, or against the government. Indeed, in this case, it would be realised that the squatters had no vested rights in the land, as squatters have no legal title to land.[55] Now, this situation cannot be likened to a situation under Article 20 of the constitution where the government is mandatorily required to resettle persons whose lands have been taken over for public purposes, where the acquisition would result in displacement of those persons.
Lessons
Unlike the Grootboom case,[56] their advocacy for resettlement was rejected by the Court. It is argued that the failure of the Constitution to recognise ESCRs in clear words makes it difficult for parties to realise the protection of the said rights. Be that as it may, where a person is able to demonstrate sufficient basis for the enforcement of a right, the Court shall not hesitate to enforce the same.
Conclusion
A reflection on the antecedents to the Child Rights International Case reveals a legitimate need for litigants approaching the Courts to enforce ESCRs to determine beforehand if the choice of forum is ideal; issues of constitutional provisions and precedents within the Ghanaian jurisdiction; nature of the reliefs sought; choice of defendants where statutory bodies are involved; issues of capacity and locus standi must be sufficiently examined before these evolving rights will reach their full realisation for persons in Ghana.
Indeed, the case study serves as a compelling illustration of the complexities inherent in advancing ESCRs protection within the legal framework of the country. Through a critical examination of this landmark case, we have gained valuable insights into the challenges and opportunities associated with enforcing ESCRs, particularly concerning matters of standing and justiciability.
While the case underscored the potential for judicial intervention in safeguarding ESCRs, it also highlighted the importance of strategic litigation and a nuanced understanding of legal principles. The need for litigants to demonstrate sufficient legal interest and navigate the intricacies of justiciability when pursuing ESCRs claims cannot be overstated. Moreover, the outcome of the case underscores the significance of how cases are presented before the courts and the impact of litigation strategies on judicial decisions.
Moving forward, it is the hope of the authors herein that stakeholders, including civil society organizations, legal practitioners, and policymakers, would heed to the lessons gleaned from this case study. By adopting strategic approaches to ESCRs litigation and engaging in constructive dialogue to address legal hurdles, we can pave the way for more effective protection and enforcement of these fundamental rights in Ghana
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[1] Suit no. J1/16/2022 delivered on 28th February 2024.
[2] This occurred when the International Labour Organization, adopted a series of conventions intended to improve labour standards around the world. See International Labour Organization (ILO), Constitution of the International Labour Organisation (ILO), 1 April 1919.
[3] Preamble to the Constitution of the ILO.
[4] Universal Declaration of Human Rights, adopted 10 Dec. 1948, C.A. 1948, C.A. Res. 217A (III), U.N.
GAOR, 3d Sess, art. 2(1), U.N. Doc. A/RES/3/217A (1948).
[5] The United Nations General Assembly. 1966. “International Covenant on Economic, Social, and Cultural Rights.” Treaty Series 999 (December): 171.
[6]African Charter on Democracy Elections and Governance (adopted 30 January 2007, entered into force 15 February 2012)
[7] Art 38 of the Constitution of Ghana,1992.
[8] Constitution of the Republic of South Africa, 1996.
[9] The Constitution of the Republic of Namibia,1990.
[10] The Constitution of the Republic of Uganda,1995.
[11] Child Rights Case
[12] Report of the Committee of Experts for the Draft of the 1992 Constitution, para 94-97.
[13] Ghana Lotto Operators Association v. National Lottery Authority (hereinafter called “the Lotto Case”) [2008] DLSC 2458.
[14] Dawood and Ahmed and Elliot Bulmer, Social and Economic Rights (2nd edn, IDEA 2017).
[15] Art 34(1) of the Constitution of Ghana,1992 reads: “The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”
[16] Ibid, (n 13).
[17] [1997-98] 1 GLR 378.
[18] [1993-94] 2 GLR 35.
[19] Article 2 of The Constitution of Ghana, 1992
[20] Article 2 of The Constitution of Ghana, 1979 reads: A person who alleges- (a) that an enactment or anything contained in or done under the authority of that or any other enactment, or (b) that any act or omission of any person, is inconsistent with, or is in contravention of, a provision of this Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect.
[21] Article 2 of The Constitution of Ghana, 1969 reads: Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.
[22] [2000] SCGLR p.305.
[23] Committee of Experts (Constitution) on Proposals for a Draft Constitution of the Republic of Ghana, 1991 Chapter 13 (entitled ‘the Enforcement of the Constitution’) para 355.
[24] ibid.
[25] ibid (n 19).
[26][1996-97] SCGLR 729 Justice Kpegah dissenting.
[27] The Judge also indicated that the plaintiff in the case of Tuffour v Attorney-General [1980] GLR p.63., the public interest litigant was granted standing because the court was probably overwhelmed by the merits of the case. Hence could not be relied upon where a plaintiff was seeking to simply enforce the personal rights of a third person.
[28] Dasebre Asare Baah III v. Attorney-General CIVIL APPEAL NO. J1/8/2009.
[29] Ibid.
[30] Edusei (no.2) v. Attorney-General [1998-99] SCGLR. 753; Bimpong Buta v. General Legal Council [2003-2005] 1 GLR 738.
[31] [2008]DLSC 15016.
[32] CEPIL v. Bonte Mines & Anor, SUIT NO. A (EN) 1/2005 delivered on 27th March 2009.
[33] CEPIL v. Bonte Mines & Anor, SUIT NO. A (EN) 1/2005 delivered on 27th March 2009.
[34] CIVIL APPEAL NO. J1/8/2009.
[35] [2019] DLSC 6575.
[36] [2023] DLHC 16660.
[37] Bonney v. Ghana Ports and Harbours Authority [2014] GHASC 170.
[38] Boyefio v. NTHC Properties [ 1997-98] 1 GLR 768.
[39] [2007-2008] SCGLR 611.
[40] Article 33(1) of the 1992 Constitution reads: Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been or is being or is likely to be contravened concerning him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
[41] Adjei Ampofo v Accra Metropolitan Assembly and Another [2007-2008] SCGLR 611.
[42] ibid (n 32).
[43] Pennie and Another v Egala and Another [1980] GLR p.234-257., and Ward Brew v Ghana Bar Association (No,1) [1993-94] 2 GRL p.439.
[44] Article 295(1) of the Constitution of Ghana, 1992 reads: unless the context otherwise requires- … "public interest" includes any right or advantage which ensures or is intended to ensure to the benefit generally of the whole of the people of Ghana.
[45] Article 36 (9) of the Constitution of Ghana, 1992 reads: The State shall take appropriate measures needed to protect and safeguard the national environment for posterity; and shall seek cooperation with other states and bodies for purposes of protecting the wider international environment for mankind.
[46] ibid (n 41).
[47] Issah Iddi Abass & 10 Others V Accra Metro. Assembly & Anor Misc. 1203/2002 (Accra High Ct.)
[48] Ibid (n 5).
[49] Article 12 (1) of the Ghanaian Constitution reads: The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislative and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and be enforceable by the Courts as provided for in this Constitution.
[50] Article 23 of the Ghanaian Constitution reads: Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.
[51] Article 13 of the Ghanaian Constitution.
[52] Article 15 of the Ghanaian Constitution.
[53] Article 25 of the Ghanaian Constitution.
[54] Grootboom
[55] Sappor v. Bosomprah [2020] GHASC 66.
[56] In a report put together by Steven Budlender, Gilbert Marcus SC and Nick Ferreira titled “Public interest litigation and social change in South Africa: Strategies, tactics and lessons” it is suggested that minus the intervention of the Legal Resource Centre through an amicus, it may have been impossible for the ruling in the Grootboom case to have gone the way it did - in favour of the plaintiffs.