Article 14(1): grounds for deprivation of personal liberty
Counsel’s argument amounts to the court being called upon to shirk the duty imposed on it by Article 14(1) to ensure that any person who is deprived of his personal liberty has been subjected to due process which calls for examination of every case regardless of the offence the person is alleged to have committed. For Article 14(1) does not give room for the lawful detention of a person based upon the nature of the offence alleged to have been committed by him. It is pertinent to observe that Article 14(1) says no person shall be deprived of his personal liberty except in the following cases • • •.’ Thus the Constitution itself has circumscribed the situations in which a person may be deprived of his liberty. Therefore s. 96(7) of Act 30 that seeks to add to this list is inconsistent with the constitutional provision. Thus the existence of section 96(7) of Act 30, as amended undermines the express provisions of Article 14(1) of the Constitution.
Article 14(7): acquittal on a technical ground distinguished from innocence
It is significant to note that the acquittal of the applicant based on the failure of the prosecution to call material witnesses does not mean that in fact he was completely innocent of the charges against him. I must add that by this failure, the applicant lost the chance or opportunity of cross-examining the said material witnesses to establish the veracity or otherwise of their allegation against him. In effect, the guilt or innocence of the applicant was not established notwithstanding his acquittal.
Article 14(7): relevance of the reasons for the acquittal to compensation
Guided by the above principles of law, I hold that it is the reasons of the acquittal that may determine whether the certifying court will favourably consider recommended an award of compensation to the applicant.
Article 14(7): whether compensation after acquittal is automatic or discretionary
Applying the above principles to the instant case, I hold that this court is bound by the decision of the Supreme Court in Dordzie Sabbah’s case that the award of compensation under article 14(7) is discretionary and not automatic or mandatory. It follows that the certifying court like the Supreme Court is also required to undertake an examination of the facts and circumstances of the case to satisfy itself that the application is deserving. It is pertinent to note that in such situation, the applicant is also required by law to satisfy the court, independent of his acquittal by the appellant criminal court, that he is innocent.
Article 33 as an alternative to a statutory appeal
Article 33 provides remedy to any person whose rights to Administrative Justice are violated and the Auditor-General has not been excluded from the operations of Articles 23 and 33. In fact, the framers of the Constitution in Article 33 make it expressly clear that they are mindful of alternative remedies that the law may afford a party complaining about interference with her human rights. Nonetheless, they added recourse to the High Court under Article 33 as an alternative. The words in Article 33 are; "then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress." If the framers intended to shield the Auditor-General from the High Court's jurisdiction under Article 33, they would have made Article 33 subject to Article 187(9) of the Constitution as they did with the jurisdiction of the Supreme Court to enforce the Constitution by making it subject to the Human Rights enforcement jurisdiction of the High Court in Article 33.
On the contrary, there is nothing in the language of Article 187, particularly clause (9), or Articles 23 and 33 of the Constitution that evinces an intention by the framers of the Constitution to make the remedy of an appeal against disallowance or surcharge the exclusive remedy for all types of grievances against the Auditor-General.
In Abena Ackah supra, Gbadegbe JSC stated at p.59 that an applicant under article 33 (1) and (2) is only entitled to the reliefs provided thereunder. Therefore, damages may be awarded for the invasion of the applicant’s right to privacy guaranteed under article 18(2) of the 1992 Constitution. As noted by Wiredu J (as he then was) in Anthony v University College of Cape Coast [1973] 1 GLR 299 at 311 “Award of damages under such circumstances has not been a easy tak. The court is called upon to assess and not to calculate taking into consideration the extent of the publication, the status of the plaintiff, the effect of the publication the occasion of the publication and the status of the defendants.”
From the facts, the damages ought to be nominal as this is largely a public interest litigation, and the violation of the privacy rights of the appellant has been unequivocally affirmed. For all the reasons set down above, general damages assessed at Ghc10,000.00 in favour of the appellant against the 1st respondent, should be adequate to affirm the principle.
there is a need to distinguish between these two types of restrictions clearly. In short, derogations are often temporary and may suspend a right wholly. This is what the 1968 Committee Report explains can be imposed during periods of emergency. On the other hand, limitations are common to all rights, may be permanent, and are meant to perpetually balance the public interest with the rights of individuals and groups. This is also explained by the 1968 Committee Report to be a continuing application.
Derogation from fundamental rights in an emergency
It is worth noting that Article 31(10) of the Constitution 1992 provides that any Act of Parliament that authorises the taking of measures during a state of emergency will not be deemed to be inconsistent or in violation of Articles 12 to 30 of the Constitution if those measures are reasonably justifiable for dealing with the situation that exists during the emergency period. This means that any derogation from the fundamental human rights provision must be done through legislation. Indeed, the Constitution has no gap or deficiency regarding the procedures that must be followed when Parliament intends to derogate from fundamental rights and freedoms. Article 31 of the Constitution clearly outlines the circumstances under which a state of emergency may be declared, and any act of Parliament passed during such a period must be justifiable in dealing with the situation at hand. Therefore, any attempt to circumvent these provisions would be inconsistent with the Constitution.
The Data Protection Act thus places an onerous duty on the data processor to ensure to the highest standard possible, the protection of privacy. Therefore the 1st and 3rd respondents should have had recourse to these provisions as they designed the system of re-registration of SIM numbers to avoid a situation where any agent would commercialise the information provided by registering other SIM numbers without the person’s consent.
The trite position in human rights law is that human rights are not absolute rights except freedom from torture, inhuman, and degrading treatment; and freedom from slavery or servitude, which are absolute and shall not be restricted. The restrictions on human rights may be influenced by several grounds, such as national security, public safety, public morals, public order, public health, and rights and freedoms of others, provided the restrictions are proportionate, necessary, and prescribed by law.
Parliament has the right to enact laws to regulate rights which are not absolute, including the right to vote or being registered as a voter, but the restrictions shall be fair and reasonable to achieve a legitimate aim, and the restriction shall be proportional to the offence for which a citizen was convicted.
Restrictions imposed in an emergency and article 21(4)
Act 1012 is drafted to address situations of imminent emergency, which fall outside the scope of Article 21(4) of the Constitution. Indeed, its object is stated to provide powers to impose restrictions that derogate fundamental human rights during emergencies or disasters. It is pertinent to note that while Act 1012 proceeds to define “disaster” and “essential services explicitly”, it fails to provide a clear definition of what constitutes an "emergency". This absence of a definition is perceived as an effort to circumvent the prerequisites established by Article 31, which lays out the conditions under which a state of emergency can be declared.
We believe that Act 1012 is founded on the wrong constitutional provision, i.e., Article 21(4), which only sanctions laws that restrict a continuing application. Act 1012, being an Act of Parliament that authorises the taking of measures in the event or eminence of an emergency in one body, i.e., the Executive, is inconsistent with Articles 21, 31 and 32 of the Constitution, 1992 and is hereby declared unconstitutional and, therefore, null and void.
Right of an accused to be informed in detail of the charge
Thus, the plain meaning of article 19(2)(d) of the Constitution clearly is that a person charged with a criminal offence must be informed, “in detail” of the nature of the offence charged. The words “in detail” appearing in the constitutional provision emphasises the extent of information required for purposes of complying with the said constitutional provision. The plain meaning ascribed to the provisions of article 19(2)(d) of the 1992 Constitution is more compelling when account is taken of the general purpose of article 19 itself. Its side notes indicate that it has to do with fair trial. The whole of Article 19 of the Constitution is therefore devoted to ensuring that accused persons enjoy the fundamental right to a fair trial.
We are of the considered opinion that the High Court Judge failed to provide facilities to enable IFC to testify and tender evidence to support the case for the appellant. From the evidence on record, IFC was a material witness to the Appellant but the Appellant lost that vital evidence as a result of the wrong ruling by the trial High Court. It is our decision that the fundamental human rights of the Appellant was breached regarding the role of the Court in providing facilities for the witnesses called by the accused person before the Court and to obtain the attendance and carry out the examination of witnesses to testify in the same conditions as witnesses called by the prosecution. It is a provision under the fundamental human rights and freedoms with specific reference to fair trial. We hold that the accused person was not given a fair trial required by paragraph (g) Clause (2) of article 19 of the Constitution.
Right to a fair trial and the challenge to the validity of the charging enactment
From our standpoint, the allegation of unconstitutionality of the law under which the applicant and the others were charged struck at the very heart of their right to fair trial and due process of law, an equally important constitutional right which the trial Court was bound to uphold, and which could not be side-stepped on the pretensions of lateness of the application. The right to fair trial and due process is not subject to any notional limitations. We do know, among its critical constituent elements are the right to have adequate time and facilities to prepare a defence and the right to be tried under offence known to law. We are clear in our minds that the application before the trial Court challenged the status of SMCD 20 as proper law for which an offence could be properly laid and it was clearly within the right of the applicant, in order to make his defence in full, to obtain a pronouncement on the constitutional status of the law by this Court. Denying him this and doing otherwise was legally unwarranted and amounted to a fatal usurpation of the jurisdiction of this Court by the trial Court.
Scope of article 15(2): cruel or degrading treatment
In my view, the provision is invoked where the plaintiff complains that the legislation in question has prescribed some form of punishment that is cruel, degrading or inhuman which is consequently inconsistent with this constitutional provision. Secondly, the provision applies if there is a complaint that a particular legislation has prescribed some form of detention which is a violation of his human dignity. In either case it will be within the plaintiff s right to have such legislation declared unconstitutional. Here again the plaintiff has not demonstrated that section 96(7) of Act 30 prescribes a form of punishment or detention that violates the human dignity. Indeed it contains no such provision. The conditions in the prisons are not the subject of this legislation under consideration.
The protection of the right to privacy has thus been elevated to constitutional protections under Article 18 of the Constitution of Ghana, 1992. The control over one’s personal information, including particulars for registering a SIM number comes within this bundle of privacy rights and the misuse of appellant’s personal information amounted to a violation of his autonomy and a breach of this rights under Article 18. From the Data Protection Act and the authorities cited, there is no doubt that in the internet age, online addresses and personal details linking a person to a particular SIM number is part of the sphere of life deserving of protection under the right to privacy.
Status of international human rights treaties in municipal law
The applicant’s argument that by virtue of articles 33(5), 40 and 73, Ghana’s international human rights obligations have attained a constitutional status is flawed. For, by those provisions read together Ghana is only to recognize and perform its international treaty obligation and to conduct its international affairs in consonance with accepted principles of public international law. The provisions do not of themselves incorporate international treaties signed on to by Ghana into our municipal law and it was not urged upon us that any of the treaties has assumed the character of customary international law to be applied as part of the common law Ghana.
It is thus evident that if even the complaint was that of fraud, the police still had no legal authority to settle it by demanding a sale of the plaintiff s house to pay off the complainants.
We do not know of any law which reduces the police to debt-collectors instead of protectors of the life and property of the citizenry. And we know of no law which permits the police to arrest a wife when they are looking for her husband, a son when looking for the father or vice-versa. Such practice constitutes negation of the fundamental rights of the individuals involved; and is unsupported by law and the Constitution, 1992.
