The world has, since World War II, made considerable gains in limiting the powers of governments over the individual. These gains may be seen through the developments in the human rights field. Particularly, the individual has made gains in respect of the right to free movement, free association, free speech and privacy. However, the emergence of the Covid-19 pandemic seems to be rolling back these gains rather too quickly; and, thereby, creating what may be inconveniently called “democratic dictatorships”. The effects of this expansion of governmental powers over the individual portend serious consequences for the world in general and emerging democracies in particular.
Ghana’s first Covid-19 case was confirmed on March 12, 2020. Three days later, the President would announce a number of enhanced measures to contain the spread of the disease. These measures include laws which are aimed, ostensibly, at five key objectives: stopping the importation of the virus; containing its spread; providing adequate care for the sick; limiting the virus’ impact on social and economic life; and, inspiring the expansion of Ghana’s domestic capability. The primary legislation in this regard is the newly enacted Imposition of Restrictions Act (IRA). This note will briefly examine the effects of the IRA on the rights of the individual.
The IRA was enacted under Article 21 of Ghana’s Constitution. Article 21 protects a group of rights which includes the right to free movement, free assembly, free association, free expression, free information, freedom of religion and academic freedom. The IRA, however, empowers the President to suspend these rights. Even though the IRA appears to limit the duration of the rights’ suspension, a more critical reading of it would reveal that there is no clear limit. The Act allows the President to extend any one round of rights suspension to up to six months. However, it does not prevent the President from starting another round of rights suspension whenever he considers it necessary. This is particularly noteworthy because the IRA is not Covid-19 specific – it is a general law which may be used at any time. Lastly, the IRA also prescribes severe punishment (imprisonment from four to ten years) for persons who exercise any of the suspended rights contrary to presidential orders.
The IRA is not without serious constitutional questions. These questions relate to how the IRA disregards the Constitution’s framework for suspending human rights during a state of emergency. Like many national constitutions, Ghana’s Constitution contains provisions which regulate the suspension of human rights during emergencies. These emergency provisions are structured in a similar form as the emergency provisions in the International Covenant on Civil and Political (which Ghana has ratified) and the European Convention on Human Rights. As under these two international human rights instruments, the first step to suspending human rights (in the way that the IRA allows the President to do) is a formal declaration of a state of emergency. This declaration, which must contain the exact nature and extent of the measures that the President intends to take in addressing the emergency situation, is required to be reported to the Parliament of Ghana for approval.
If approved, the Constitution requires Parliament to continue to supervise the President in the implementation of the measures, every step of the way. For example, Parliament may pass a resolution at any time to end the suspension or shorten its duration, even against the President’s wishes. Further, the judiciary is also empowered to hold special court hearings to review the measures in respect of individual complains of human rights abuses. However, none of these control mechanisms are available under the IRA. For example, Parliament has no role to play in determining the necessity or proportionality of the measures that the President imposes under the IRA. It also has no role to play in the decision to extend the suspensions. Also, the courts have no special powers to adjudicate individual complaints of right abuses during such suspensions. As a result, the individual is left to resort to the regular, ordinary and time-consuming court procedures in such extraordinary emergency times.
The IRA may be well-intended. However, the copious exclusion of the judiciary and Parliament from the IRA’s framework makes justice and redress in such emergency times quite illusory. Most importantly, the IRA leaves a blueprint for unchecked human rights abuses in the years ahead. It rolls back the human rights gains that Ghana has made.
Justice Srem-Sai is the Executive Fellow at the Institute of Law & Public Affairs (ILPA), Partner at Archbridge Solicitors, and Constitutional Law Lecture at the Ghana Institute of Management and Public Administration (GIMPA). jsrem-sai(at)gimpa.edu.gh