In our march towards a more egalitarian, democratic and law-based society, it is a fact worthy of unanimous acceptation that any invidious piece of legislation contrived to place unnecessary fetters, by way of prior restraints, on the exercise of such important human rights as the freedom of assembly including the right to demonstration, protests and procession, must receive the purest form of revulsion from all quarters. Mindful of our gloomy past of untold abuse of human rights, Ghanaians, in 1992, resolved to adopt a democratic system of government anchored on the rule of law and respect for fundamental human rights. The coming into force of the 1992 Constitution, therefore, ought to have ended all forms of political maneuvers whose unworthy goal it was to abridge fundamental human rights in Ghana by repealing all laws unfavourable to human rights and accordingly consigning them to their grave with the solemn quietus intoned by the text and spirit of the Constitution.
However, it seems incongruous that remnants of certain ‘satanic’ pieces of legislation are allowed to develop into hideous and ugly tumours on the near immaculate face of our present 1992 Constitution. In fact, their ghosts are regrettably being allowed to linger around like phantom wraiths dispensing extreme mischief with reckless abandon. Most of the restrictions on our liberty which, after years of repression, we have come to accept, are inconsistent with democratic norms.
Chapter five of the 1992 Constitution of Ghana contains human rights provisions, the free exercise and enforcement of which forms the very substratum of our democracy. For our present purpose, I shall endeavour to expose the unconstitutionality of Part One of the Public Order Act 1994 (ACT 491) and the ugly slur it casts on the right to hold demonstrations, processions or protests under article 21(1) (d) of the 1992 Constitution. In the aggregate, this article espouses the view that Act 491 represents a major deficit of our democracy.
The Nature of the Right to Freedom of Assembly
Article 21(1)(d) of the 1992 Constitution provides that: “All persons shall have the right to freedom of assembly including freedom to take part in processions and demonstrations.”
This provision is in consonance with similar provisions in the United Nations Charter on Human Rights, The Universal Declaration of Human Rights (vide article 20(1)) and The African Charter on Human and Peoples’ Rights (vide article 71) to which Ghana is a proud signatory. The right to freedom of assembly means the right to protest in a peaceful way, and includes static protests, parades, processions, demonstrations and rallies. The right to protest allows individuals to unite in support of a common belief – to express their opinions, voice their frustrations, criticise and voice opposition to opinions or beliefs they do not share. This right is an essential prerequisite to the realization of true democracy as it provides a platform for political dissent. A close examination of the 1992 Constitution of Ghana shows that it represents the people’s determination to abandon dictatorial systems of governance in favour of a democratic system. This includes the rejection of state strategies wherein government machinery determines the rights that should be permitted and those which should not be. Like erstwhile colonial administrations, dictatorial regimes tend to impose prior restraints on the enjoyment of basic rights of the people.
It is essential for the existence and growth of liberal democratic systems of government that the right to assembly, to march and express opinions on national issues be encouraged and protected. It is equally a valid expectation of any civilized society that the lives of other members of the community be not disrupted by the activities of any protesting group of citizens. It becomes an issue of a balance of values, giving a little here and taking a little there, to produce a social and political atmosphere which best enhances the realisation of democracy.
A close reading of the Constitution reveals that the right to protest is, like all other rights, not absolute – it is a qualified right. Article 21(4)(a)-(e) permits restrictions to be placed on the exercise of the right to protest especially when such restrictions are necessary or required in the interest of defence, public safety or public order, public health, the running of essential services and similar purpose(s). Simply put, the right to freedom of peaceful assembly balances the rights of the individual against the broader interests of the community and that of other individuals. It is interesting to note that the restrictions envisaged under the Constitution must be shown to be reasonably justifiable in terms of the spirit of the Constitution. Further, no restriction is permissible if it places prior restraint on the exercise of the right under Article 21(1)(d).
Since independence, successive governments have championed their desire to cow oppositions and individuals into subservience by enacting pieces of legislation intended to regulate the activities of people that are capable of breaching public peace and mounting ideological pressures on the government. One common characteristic of all the Public Order legislation is that, the right of the individual to protest is subject to the consent or permission of the police and Minister for the Interior.
In 1993, after we were graciously ushered into a democracy, it was felt, and I hope rightly so, that police permits or consent should not be prerequisite for the exercise of the right and freedom to hold processions.
In New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459—509, the plaintiff brought an action in the Supreme Court challenging the constitutionality of sections 7, 8, 12(a) and 13 of the Public Order Decree, 1972 (NRCD 68) which required, inter alia, that a permit or the consent of the Minister for the Interior or a police officer be obtained before citizens could embark on a public demonstration or procession or celebration of a custom and therefore sought a declaration that those sections were inconsistent with the letter and spirit of article 21(1)(d) of the Constitution, 1992 which granted the citizen the freedom of assembly, and were therefore void and unenforceable. The police had withdrawn an earlier permit granted to the plaintiffs to hold processions.
The Supreme Court, composed of seven justices reached the unanimous conclusion that sections 7, 8, 12 and 13 of the Public Order Decree were in contravention of article 21(1)(d) of the 1992 Constitution and were therefore unenforceable. It was the expressed view of the Court that, having regard to the spirit of the Constitution, which could be gleaned from the Directive Principles of State Policy, especially the political objectives, and, taking cognisance also of the emerging trend on the international scene, one would frown upon any suggestion that a permit is required to assemble, go on procession or hold demonstrations.
In just about a year after the verdict in the NPP v IGP (supra), Parliament enacted the Public Order Act 1994 (Act 491) apparently seeking, albeit purportedly, to bring its provisions into conformity with the 1992 Constitution.
This article is anchored on the viewpoint that the new Public Order Act 1994 (Act 491) is still materially and glaringly inconsistent with the 1992 Constitution insofar as the Act places prior restraints on the right of people to hold processions, demonstrations etc. It is necessary to carefully look at Part One of the Act to ascertain its unconstitutionality.
The Public Order Act 1994 (Act 491)
The relevant portions of the Public Order Act which form the basis of our discussion may be summarized as follows; that any person who desires to hold any special event in any public place shall notify the police of his intention not less than 5 days before the date of the special event; the police officer has the power to request the organizers to postpone the special event to any date or to relocate the special event; failure of which the police officer may apply to any judge or a chairman of a Tribunal for an order to prohibit the holding of the special event. Section 10 of the Act defines “special event” to mean procession, parade, carnival, street dance celebration of traditional custom, outdooring of traditional ruler, demonstration, public meeting and similar event.
Clearly, the Act invidiously seeks to replace the word “permit” as was required in the repealed Decree with the requirement of “notification”. A careful analysis of Act 491 reveals that it places prior restraints on the right to hold processions. In NPP v IGP (supra) Hayfron-Benjamin JSC explained prior restraint to mean “an injunction prohibiting the freedom of assembly, procession or demonstration, whether such injunction or prohibition is imposed by statute or by an order of Court.” The requirement of notification is, in itself, an unnecessary prior restraint.
The implication of the requirement of notification is that no protest, procession or demonstration may be said to be lawful unless a notification of it has been given to the police. The necessary implication therefore is that under Act 491, meetings, processions and demonstrations are prohibited by law unless all the requirements under part one of the law are fulfilled or unless sanctioned by the police or other such authority. It also means that any such meeting or procession cannot be lawfully held except, in the view of the police, such activities will not breach the peace. This proposition clearly violates the enshrined provisions of article 21(1)(d) of the Constitution, 1992 as it constitutes serious abridgment of the human rights of the citizen. Any such restriction on the right to freedom of assembly would make it meaningless and a sham. In fact, the requirement of ‘prior notification’ is as worse as the purportedly repealed ‘police permit’ under the erstwhile Public Order Decree.
Moreover, the power of the police to request organizers to postpone any special event is a major onslaught on the right and freedom of procession.
It must be observed that the police are free to persistently request postponement of special events. To invest the police with such unfettered ‘discretion of postponement’ is to place those who assert their constitutional rights of assembly, procession and demonstration at the mercy of the police. It gives the police awesome discretion to decide when to hold and when not to hold processions. The impact of demonstrations may not be felt by the government or the targeted group at all if they are unduly postponed or delayed.
In fact, the police can request the relocation of the venue of a proposed procession to such areas that the activity may not even be heard by Ghanaians or the government. The word “request” under Act 491 carries the import of “an order” or “a positive command” the enforcement of which may be procured by an order of a court. Essentially, the insistence on a prior notification to the police is capable of being misused as a clog on the citizens’ freedom of assembly, procession and demonstration. The requirement that the police can request postponement of special meetings on reasonable suspicion of breach of the peace is a dangerous provision. Reasonableness is subjective and can be used as a tool for wanton arbitrariness or for the pursuit of whimsical ends.
Yet another stinging indictment of the right to procession is that, the application by a police officer for an order of a court to prohibit any special event is not required to be made on notice. Any court order made on such ex-parte application may well be said to violate the hackneyed principle of natural justice, viz audi alteram partem rule which is literally translated as hear the other side. In this respect, the learned Hayfron-Benjamin JSC observed in NPP v IGP (supra) that: “with respect to restrictions imposed by a court the audi alteram partem rule must be adhered to”. In the United States case of Carroll v President & Commissioners of Princess Ann, 393 US 175 (1968) the US Supreme Court held that an ex parte order forbidding a rally was unconstitutional where the applicants could not demonstrate that it was impossible to notify the opposing party in order to afford it the opportunity of contesting the application.
In any free and democratic society like ours, the restrictions on human rights must be lawful and must only be exacted in pursuit of a legitimate aim such as national security, public safety, the prevention of disorder or crime, or the protection of the rights and freedoms of others. However, such restrictions fail to be legitimate if they rear their ugly heads to prevent the free exercise of human rights.
Yes, public safety and public order cannot be compromised for any good purpose. This is a truism! No one can make a claim that individual rights should be upheld without due attention to public interest. That will be, in my view, an unwarranted and reckless adventurism. However, a balance has to be struck and a compromise found that will accommodate the exercise of the right to protest within a framework of public order which enables ordinary citizens, who are not protesting, to go about their business and pleasure without obstruction or inconvenience. The balance should always fall in favour of those asserting their right to protest, unless there is strong evidence for interfering with their right. Inconvenience or disruption alone should not be sufficient reasons for preventing a protest from taking place. As far as the right to take part in procession is concerned, certain amount of inconvenience or disruption needs to be tolerated in any true democratic society.
It is worthy of mention that, in our quest to deepen and solidify Ghana’s incipient democracy, security reasons and public interest should not be permitted to be fancifully invoked to place fetters on human rights. To permit the Public Order Act 1994 (Act491) (particularly the Part One thereof) to remain in our statute books is to permit into our democracy resounding echoes of the infamous Preventive Detention Act which was used as a tool of oppression under guise of “National Security” in Ghana. In fact, the heydays where “security reasons” could easily be maliciously invoked to oppress citizens are gone. Any attempt to exhume them and cause them to rule us from their graves must meet revulsion.
Our own experience and that of other countries which have gone down the slippery road to dictatorship teach us to bear in mind Lord Acton’s well-known aphorism that, “Power tends to corrupt, and absolute power corrupts absolutely.” The lessons of history are there for all to see: we ignore them at our peril!
BY DANIEL KORANG (LL.B)
ENSO NYAME YE CHAMBERS
P.O. BOX 2191